Team code:

te B531 B

5th SYMBIOSIS LAW SCHOOL, HYDERABAD, NATIONAL MOOT

COURT COMPETITION – 2021

Before

THE HONOURABLE SUPREME COURT OF ZINDIA

WRIT PETITION NO: 2020 /2021

FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF ZINDIA, 1950

BODY OF INDIVIDUALS…………………………………………….........…PETITIONER

Versus

UNION OF ZINDIA & Ors……………………………………………….….RESPONDENTS

MEMOR&UM for RESPONDENTS

 TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS...............................................................................................IV
2. INDEX OF AUTHORITIES.......................................................................................................V
3. STATEMENT OF JURISDICTION....................................................................................VII
4. STATEMENT OF FACTS..................................................................................................VIII
5. ISSUES RAISED..................................................................................................................IX
6. SUMMARY OF ARGUMENTS............................................................................................X
7. ARGUMENTS ADVANCED................................................................................................XI

A. WHETHER THE NOTIFICATION LACKS FORCE OF LAW AND IS UNFAIR AND

UNREASONABLE AND FAILS TO SATISFY THE TEST FOR IMPOSING A VALID
RESTRICTION ON THE FUNDAMENTAL RIGHT TO PRIVACY.
a. NOTIFICATION IS THE RESULT OF LEGITIMATE STATE INTEREST.
b. RIGHT TO PRIVACY IS NOT AN ABSOLUTE RIGHT BUT RATHER A QUALIFIED ONE.

B. WHETHER COBALT SHARING THE PERSONAL DATA SETS WITH THE

GOVERNMENT AND THE GOVERNMENT SHARING THE PERSONAL DATA SETS
WITH FREEPUBLIC, WAS IN BREACH OF THE TERMS BASED ON WHICH CONSENT
WAS GIVEN BY THE USERS AND ALSO IN VIOLATION OF THE TERMS OF THE
PRIVACY POLICY
a. VALID CONSENT OBTAINED BY COBALT FOR INITIATING DATA PROCESSING.
b. CONFORMITY WITH PRIVACY POLICY.
c. EXEMPTION FROM THE APPLICATION OF THE ACT.
d. NECESSARY INTERVENTIONS BY THE GOVERNMENT.
e. GOVERNMENT’S ACTION IN FURTHERANCE OF PUBLIC INTEREST.
f. DISSEMINATION OF INFORMATION FOR PUBLIC INTEREST.

C. WHETHER STORAGE OF THE SENSITIVE PERSONAL DATA (AS DEFINED UNDER

THE ACT) OUTSIDE THE TERRITORIAL BOUNDARIES OF ZINDIA BY COBALT AND
ITS FAILURE TO MAINTAIN §URITY SAFEGUARDS AS PER THE PROVISIONS OF
THE ACT, WHICH RESULTED IN THE BREACH OF PERSONAL DATA SETS, IS IN
VIOLATION OF THE PROVISIONS OF THE ACT.
a. PERSONAL DATA SETS WERE STORED WITHIN THE TERRITORY OF ZINDIA.
b. COBALT WAS UNABLE TO FULFIL ITS OBLIGATION DUE TO FM EVENT.
D. WHETHER THERE IS LACK OF SEPARATION OF POWER WITHIN THE AUTHORITY
FORMED UNDER THE ACT, AS THE ADJUDICATING OFFICER IS APPOINTED BY
THE SAME AUTHORITY WHICH APPOINTS THE INQUIRY OFFICER (AS PER THE
PROVISIONS OF THE ACT).

E. WHETHER THE POWER TO PERFORM ADJUDICATORY FUNCTIONS BEING

VESTED IN AN ADJUDICATING OFFICER, WHO IS NOT A MEMBER OF ANY
JUDICIAL BODY, HAS LED TO USURPATION OF JUDICIAL POWER AND
CONFERMENT OF THE SAME ON SUCH NON-JUDICIAL BODY OF THE
ADJUDICATING OFFICER.

8. PRAYER............................................................................................................................XXXII
 LIST OF ABBREVIATIONS

Government Government of Zindia

Ors. Others
Anr. Another
Notification Notification issued by Government through the
Ministry of Home Affairs under Section 35 of the
Act dated 30 March 2020.
ACT. Personal Data Protection Act 2019
FM Force majeure
Art. Article
Approx. Approximately
¶ paragraph
§ Section
Hon’ble Honourable
& And
Constitution Constitution Of Zindia, 1950

INDEX OF AUTHORITIES

A. CASES
1. Ram Jawaya vs. State of Punjab, AIR 1955 S.C. 549
2. Justice K.S. Puttaswamy (Retd.) vs. Union of India, (2017) 10 SSC 1
3. Mohd. Hanif Quareshi & Others vs. The State of Bihar 1958 AIR 731, 1959 SCR 629
4. Kartar Singh vs. State of Punjab(1994) 3 SCC 569
5. People‘s Union for Civil Liberties (PUCL) vs. Union of India (2004) 9 SCC 580.
6. Santokh Singh vs. Delhi Administration, 1973 AIR SC 1091
7. Brij Bhushan vs. State of Delhi, 1950 AIR SC 129
8. R. M. Malkani vs. State of Maharashtra 1973 AIR 157, 1973 SCR (2) 417
9. Union of India vs. Tulsiram Patel, 1985 AIR SC 1416.
10. Sharda v. Dharmpal AIR 2003 SC 3450, 2003 (3) ALT 41 SC, 2003 (2) AWC 1534 SC, 2003 (2)
BLJR 1420, 2003 (2) CTC 760, I (2003) DMC 627 SC, 2004 (1) JCR 98 SC, JT 2003 (3) SC 399,
2003 (2) KLT 243 SC, RLW 2003 (3) SC 379, 2003 (3) SCALE 475, (2003) 4 SCC 493, 2003 3
SCR 106, 2003 (2) UJ 870 SC
11. Union of India vs. J. N. Sinha AIR 1971 S.C. 40
12. The State of Bombay and other vs. F.N. Balsara 1 1951 AIR 318, 1951 SCR 682
13. Charan Lal Sahu AIR 1990S.C.1480
14. Ajay Hasia vs. Khalid Mujib(1981) 1 SCC 722, 737: AIR 1981 SC 487
15. Romesh Thappar vs. The State Of Madras AIR 1950 SC 124 , 1950 SCR 594
16. Modern Dental College & Research Centre vs. State of Madhya Pradesh
17. Post Publishing Co. vs. Hallam
18. McClung vs. Pulitzer Publishing Co
19. United States vs. Associated Press
20. Mr. X vs. Hospital Z
21. Berg vs. Minneapolis Star & Tribune
22. Divisional Controller, KSRTC vs. Mahadava Shetty
23. Lakeman vs. Pollard
24. Province of Madras vs. I.S and G Machado AIR 1955 Mad 519
25. P.K. Kalasami Nadar vs. Ponnuswami Mudaliar, AIR 1962 Mad 44
26. R.R.N. Ramalinga Nadar vs. V. Narayana Reddiar AIR 1971 Ker 197 and Kerala Transport Co. vs.
Kunnath Textile, 1983 KLT 480
27. Aviation Holdings Ltd. vs. Aero Toy Store LLC, [2010] 2 Lloyd’s Rep 668.
28. Palsgraf vs. Long Island Railroad Company
29. Taylor vs. Caldwell
30. Satyabrata Ghose vs. Mugneeram Bangur & Co
31. Energy watchdog vs. Central Electricity Regulatory Commission
32. Dhanrajamal Gobindram vs. Shamji Kalidas & Co., AIR 1961 SC 1285.
33. Kesavananda Bharati vs. State of Kerela
34. Indira Nehru Gandhi vs. Raj Narain
35. I.C. Golak Nath vs. State of Punjab
36. Bhaishankar Nanabhai v. Municipal Corporation of Bombay
37. Santosh Singh vs Union of India
38. Indian National Congress vs. Institute of Social Welfare &Ors,
39. R. vs. London County Council

B. BOOKS AND JOURNAL

1. Frankfurter – The Public and its Government (1930) quoted by B. Schwartz, in American
Constitutional Law, 1955 Page 286.
2. STORY, CONSTITUTION
3. Constituent Assembly Debates Book No.2, Vol. No. VII Second Print 1989
4. H.H. Gerth & C. Wright Mills (eds.), Max Weber: Essays in Sociology (Oxford University Press,
1946).
5. Thomas Hobbes’ Leviathan
6. Article 29 Data Protection Working Party, Opinion 06/2014 on the notion of legitimate interests of
the data controller (2014)
7. Max Minzner, Why Agencies Punish, 53(3) William and Mary Law Review (2012); Michelle Welsh,
Civil
8. the Guidelines for the Prevention of Crime, entitled “Conceptual frame of reference”
9. The Nuremberg Code (1949)

F. STATUES

1. The Constitution of Zindia, 1950

2. The Protection Of data act, 2019
3. IT Act, 2000
4. Zindian Contract Act, 1872
5. GDPR

A. SOURCES

1. Manupatra
2. SCC online
3. Msci.gov.in
4. The committee report on Data protection Act Headed by J. Srikrishana.
5. Response of the Minister of Home Affairs (Government of India) to unstarred question no. 1354
(Lok Sabha) (5 March 2013)
 STATEMENT OF JURISDICTION

The present petition has been filed before the Hon’ble Supreme Court of Zindia under Art. 32 of the
Constitution of Zindia, 1950 which empowers the Supreme Court to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred under part III of the
Constitution of Zindia.

This memorandum sets forth the facts, contentions and arguments to the present case.

STATEMENT OF FACTS
1. The Country of Republic of Zindia is the second largest populated country of the world. Problem arose
when there was an unprecedented outbreak of a pandemic in February 2020 affecting both healthcare
and infrastructure of densely populated countries like Zindia.
2. The Government notified and enacted the Personal Data Protection Act 2019, immediately which laid
the foundation for the ability of the Government to tap Zindia’s data resources, by restricting the flow of
Sensitive Personal Data of its citizens outside its territorial boundaries.
3. In an effort to tackle the COVID-19 situation, a number of notifications were issued in the form of
executive orders from the respective offices of various ministries of the Government.
4. The Government introduced a medicine delivery app in tie-up with a Cobalt for doorstep delivery of flu
related drugs, masks, and sanitizers. Also, the App helped a user to avoid coming in contact with any
person who has tested positive for or is possibly infected with COVID-19.
5. The Personal Data Sets which are collected from the users were transferred on a real time basis to and
kept in the servers of a third-party cloud service provider having their servers outside Zindia, so that the
data can be easily accessed anytime and from anywhere. However, a back- up copy of the Personal Data
Sets was also stored by Cobalt in servers located within the territorial boundaries of Zindia, in order to
comply with the Act
6. The Privacy Policy of the app provided that the data to be kept in an anonymised form and to be used on
for the purpose for which consent was obtained from the users. However, it can transferred to the
government for necessary medical and administrative interventions the privacy policy also emphasised a
FM clause to exempt parties from performing their obligations. A force majeure event was not defined in
the Privacy Policy.
7. During the initial phase of the lockdown in Zindia, certain posts were circulated on various media
platforms, targeting a minority community for reason for spread of virus. This led to lynching of certain
individuals from that community in various parts of the country. The Government issued a notification
under §tion 35 of the Act which required Cobalt to transfer personal data sets to the government.
8. Due to the nationwide lockdown, employees of Cobalt were asked to work from home. As the transition
was done quickly to maintain continuity of service, proper §urity safeguards were not used at the time of
transition. This resulted in a data breach from the device of 3 (three) employees of Cobalt working from
their respective homes in the neighbouring country Xina. Personal Data Sets of approximately 50,000
users were breached. The Personal Data Sets of such users resurfaced in social media in the form of
trolls and memes, which resulted in such users facing social stigma and mob lynching.
9. Government in an effort to create awareness and in a desperate attempt to curtail the situation, in
association with a news channel called Freepublic released an online yellow book, containing the names,
location and health data of people who tested COVID-19 positive and also a list of such people those
who were likely to be infected with COVID-19. Resultantly, many individuals faced social stigma, some
were outcast, and some were even asked to move out of their houses by their landlords/ housing
societies.
10. BOI approached the Authority the matter was heard by the Adjudicating Officer, upon hearing both
sides, held that the neither the Government nor Cobalt have violated any provisions of the Act nor liable
to pay any penalty or compensation under the Act.
11. Aggrieved by the order of the Adjudicating Officer, BOI filed a Writ Petition before this Hon’ble Court
to hear the matter.

ISSUES RAISED

A. Whether the Notification lacks force of law and is unfair and unreasonable and fails to satisfy the test
for imposing a valid restriction on the fundamental right to privacy.
B. Whether Cobalt sharing the Personal Data Sets with the Government and the Government sharing the
Personal Data Sets with Freepublic, was in breach of the terms based on which consent was given by
the users and also in violation of the terms of the Privacy Policy.
C. Whether storage of the Sensitive Personal Data (as defined under the Act) outside the territorial
boundaries of Zindia by Cobalt and its failure to maintain Security safeguards as per the provisions of
the Act, which resulted in the breach of Personal Data Sets, is in violation of the provisions of the Act.
D. Whether there is lack of separation of power within the Authority formed under the Act, as the
Adjudicating Officer is appointed by the same Authority which appoints the Inquiry Officer (as per the
provisions of the Act).
E. Whether the power to perform adjudicatory functions being vested in an Adjudicating Officer, who is
not a member of any judicial body, has led to usurpation of judicial power and conferment of the same
on such non-judicial body of the Adjudicating Officer.

SUMMARY OF ARGUMENTS

A. Whether the Notification lacks force of law and is unfair and unreasonable and fails to satisfy the
test for imposing a valid restriction on the fundamental right to privacy.

The Notification was issued by the Government, in order to protect the security of the citizens as well
in the interest of sovereignty and in the public interest. Public interest supersedes individual’s private
interest and concerns. Further the right to privacy being a qualified right can be restricted in order to
protect legitimate state interest looking into the proportionality and drawing a reasonable nexus
between the interest and legislation so issued.
B. Whether Cobalt sharing the Personal Data Sets with the Government and the Government
sharing the Personal Data Sets with Freepublic, was in breach of the terms based on which
consent was given by the users and also in violation of the terms of the Privacy Policy.
 Cobalt shared the personal data sets in furtherance of the order passed by the government for which it
obtained a valid consent prior to such data processing informing the users prior of the possible
interventions of the government for medical and administrative purpose. Further, the government’s
action aimed at coping the situations and crisis and prevent the social outcaste and mob lynching of
minorities in the country.

C. Whether storage of the Sensitive Personal Data (as defined under the Act) outside the territorial
boundaries of Zindia by Cobalt and its failure to maintain Security safeguards as per the
provisions of the Act, which resulted in the breach of Personal Data Sets, is in violation of the
provisions of the Act.

Cobalt stored the personal data sets within the territory of Zindia complying with the provisions of the
act and was discharged from its obligations pursuant to FM event, which was informed to the users
before obtaining their consent on the privacy policy.

D. Whether there is lack of separation of power within the Authority formed under the Act, as the
Adjudicating Officer is appointed by the same Authority which appoints the Inquiry Officer (as
per the provisions of the Act).

The doctrine of separation of power has been observed aptly under the Act. The roles of the officers as
exercised by them are fundamentally expressed and clearly demarcated howsoever, interlinked to serve
the purpose of smooth functioning and development of data protection law.

E. Whether the power to perform adjudicatory functions being vested in an Adjudicating Officer,
who is not a member of any judicial body, has led to usurpation of judicial power and
conferment of the same on such non-judicial body of the Adjudicating Officer.

The power to perform the adjudicatory function is separate as to the authority performing the
regulatory function. The role of adjudicatory wing is independent and serves a mechanism for
rendering remedies to individuals aggrieved under the act, thereby serving the purpose of prevention of
data breaches and to reprimand the same when found guilty of contravening the provisions of the act.
 ARGUMENTS ADVANCED

A. Whether the Notification lacks force of law & is unfair & unreasonable & fails to satisfy the test
for imposing a valid restriction on the Fundamental Right to Privacy?

1. It is humbly submitted in this Hon’ble Court that the said Notification1 issued by the Government
through the Ministry of Home Affairs dated 30.03.2020, was an action taken to protect the interest of
sovereignty & integrity of Zindia & the security of the State of Zindia.2 At the outset it is submitted by
the counsel on behalf of the Respondents that the state always thrive to secure the welfare of its citizen,
to ensure their safety & to secure their resources, which is the first & foremost reason behind the
enactment of the Personal Data Protection Act 2019.There exists a world of unrelenting insecurity without
a government to provide the safety of law & order, protecting citizens from each other & from foreign
foes.3
2. A state always is presumed to work as welfare state4 ensuring the safety of it citizens & taking such measures
as it thinks appropriate for serving the legitimate interest. Chandrachud J.., “Apart from national §urity, the
state may have justifiable reasons for the collection & storage of data. In a social welfare state, the
government embarks upon programmes which provide benefits to impoverished & marginalised §tions
of society. There is a vital state interest in ensuring that scarce public resources are not dissipated by
the diversion of resources to persons who do not qualify as recipients. Allocation of resources for human
development is coupled with a legitimate concern that the utilisation of resources should not be siphoned
away for extraneous purpose.” 5

a. Notification is the result of legitimate state interest.

3. It is humbly submitted that the Notification issued by the Government stands in accordance with the
Power of Central Government to exempt any agency of Government or the government itself from the
application of the Act by virtue of §356 of the same. While looking into the fact that whether the

1
§ 3(25); "notification" means a notification published in the Official Gazette & the expression "notify" shall be construed
accordingly.
2
Page 3, ¶ 5, Fact sheet
3
Thomas Hobbes’ Leviathan
4
Ram Jawaya vs. State of Punjab, AIR 1955 S.C. 549 at p.553,554
5
Justice K.S. Puttaswamy (Retd.) vs. Union of India, (2017) 10 SSC 1
6
§ 35. Where the Central Government is satisfied that it is necessary or expedient,—(i) in the interest of sovereignty and
integrity of India, the security of the State, friendly relations with foreign States, public order; or (ii) for preventing incitement to
the commission of any cognizable offence relating to sovereignty and integrity of India, the security of the State, friendly relations
with foreign States, public order, it may, by order, for reasons to be recorded in writing, direct that all or any of the provisions
of this Act shall not apply to any agency of the Government in respect of processing of such personal data, as may be specified in
the order subject to such procedure, safeguards and oversight mechanism to be followed by the agency, as may be prescribed.
Explanation.—For the purposes of this §— (i) the term "cognizable offence" means the offence as defined in clause (c) of § 2 of
the Code of Criminal Procedure, 1973; (ii) the expression "processing of such personal data" includes sharing by or sharing with
such agency of the Government by any data fiduciary, data processor or data principal.
 Notification is competent & valid, in Mohd. Hanif Quareshi & Others vs. The State of Bihar7 the
Constitution Bench observed that there is always a presumption in favour of constitutionality of an
enactment & the burden is upon him, who attacks it, to show that there has been a clear violation of the
constitutional principles.‘ The courts, it is accepted, must presume that the legislature understands &
correctly appreciates the needs of its own people, that its laws are directed to problems made manifest
by experience & that its discriminations are based on adequate grounds. It must be borne in mind that
the legislature is free to recognise degrees of harm & may confine its restrictions to those cases where
the need is deemed to be the clearest & finally that in order to sustain the presumption of
constitutionality the court may take into consideration matters of common knowledge, matters of
common report, the history of the times & may assume every state of facts which can be conceived
existing at the time of legislation.’
4. It is submitted before this Hon’ble Court that the critical question for determination in the law would be
what the circumstances are where consent is not appropriate, necessary, or relevant for processing.
Chandrachud, J., identified four legitimate state interests to be considered in the context of privacy. He
listed national security, prevention & investigation of crime, protection of revenue & allocation of
resources for human development8 of which the first three are straightforward state functions that serve
collective interests. The fourth which pertains to allocation of resources for human development with the
aim of preventing wastage of public resources belongs to a distinct category & is considered under the
head functions of the State. The court directed the government with the words as follows: “The
legitimate aims of the state would include for instance protecting national security, preventing &
investigating crime, encouraging innovation & the spread of knowledge, & preventing the dissipation of
social welfare benefits. These are matters of policy to be considered by the Union government while
designing a carefully structured regime for the protection of the data.”
5. It is nobody’s case that processing for national security is an illegitimate state interest; it undoubtedly is
legitimate, & has been recognised by the Supreme Court of India as such9.Further, national security
restrictions on rights were upheld in the context of the Terrorist & Disruptive Practices (Prevention) Act,
1987 in Kartar Singh v. State of Punjab10, & the Prevention of Terrorism Act, 2002 in People‘s Union
for Civil Liberties (PUCL) v. Union of India11.
6. In this context, it becomes all the more important to determine the meaning of the term national security.
Prima facie, the term itself is alien to Indian constitutional law. Article 19(2), which justifies certain
restrictions on freedom of speech & expression, uses the phrase security of the State instead. The
Supreme Court has understood this term to mean anything tending to overthrow the State.12 Certain

7
¶ 15 pp. 740-41, 1958 AIR 731, 1959 SCR 629
8
Ibid 5
9
Puttaswamy, (2017) 10 SCALE 1 at page 255 (Chandrachud, J.), at page 38 (Sanjay Kishan Kaul, J.)
10
(1994) 3 SCC 569
11
(2004) 9 SCC 580.
12
Santokh Singh v. Delhi Administration, 1973 AIR SC 1091
 aggravated instances of public disorder have also been held to affect the security of the state.13 Further, it
has been held to include armed rebellion, leaking information to foreign countries & disaffection in the
armed forces, paramilitary or police.14 Several other statutes use this ground to restrict fundamental
rights.15
7. It is apparent that what the Constitution understands as security of the State is in common legal parlance
today, understood as national security. The same is also recognised by courts with extremely deferential
to the understanding of the executive in its interpretation of a restriction on fundamental rights on the
ground of Security of the state. In Kartar Singh v.State of Punjab16, the court observed that,
“............Resultantly, the security & integrity of the countries concerned are at peril & the law & order
in many countries is disrupted. To say differently, the logic of the cult of the bullet is hovering the globe
completely robbing off the reasons & rhymes. Therefore, every country has now felt the need to
strengthen vigilance against the spurt in the illegal & criminal activities of the militants & terrorists so
that the danger to its sovereignty is averted & the community is protected.”
8. It is humbly submitted that while scrutinising the factors resulting in non-consensual proceedings the
Committee of Experts under the Chairmanship of Justice B.N. Srikrishna on ‘A Free & Fair Digital
Economy Protecting Privacy, Empowering Indians’ observed that “Prevention, detection, investigation
& prosecution of contraventions of law (including disciplinary proceedings & investigation into tax
contraventions) are important state functions, central to the protection of individuals & the society at
large. It is a legitimate aim of the state. ”The state enjoys a monopoly of the legitimate use of physical
force to enforce order within its sovereign territory17. The Constitution entrusts State Governments &
Union Territories with the maintenance of law & order18, including prevention, detection, registration,
investigation & prosecution of crimes.19

b. Right to Privacy is not an absolute right but rather a qualified one.

9. It is further submitted in this Court that the Right To privacy is not an absolute right rather a qualified
one. In R. M. Malkani vs. State of Maharashtra,20the petitioner’s voice had been recorded in the course
of a telephonic conversation where he was attempting blackmail. He asserted in his defence that his right
to privacy under Article 21 had been violated. The Supreme Court declined his plea holding that “the
telephonic conversation of an innocent citizen will be protected by courts against wrongful or high

13
Brij Bhushan v. State of Delhi, 1950 AIR SC 129
14
Union of India vs. Tulsiram Patel, 1985 AIR SC 1416.
15
§ 5, Telegraph Act; & § 69, IT Act.
16
Ibid 10
17
H.H. Gerth & C. Wright Mills (eds.), Max Weber: Essays in Sociology (Oxford University Press, 1946).
18
Entry 1 & 2, List II, Schedule VII, Constitution of Zindia
19
Response of the Minister of Home Affairs (Government of India) to unstarred question no. 1354 (Lok Sabha)
(5 March 2013)
20
1973 AIR 157, 1973 SCR (2) 417
 handed interference by tapping the conversation. “The protection is not for the guilty citizen against the
efforts of the police to vindicate the law & prevent corruption of public servants.”
10. In the case of PUCL21 in which the court was called upon to consider whether wiretapping was an
unconstitutional infringement of a citizen’s right to privacy. The court held that it the telephonic
conversation attracts Right to privacy & therefore the application of Art. 21 as well as 19 however the
same can be seen to be obstructed by the “Procedure established by law” & is relative in nature, the
Court went on to lay down that, “.... it may be observed that the right to privacy in India is, at its
foundations a limited right rather than an absolute one. In the sections that follow, it will become
apparent that this limited nature of the right provides a somewhat unstable assurance of privacy since it
is frequently made to yield to all manners of competing interests which happen to have a more
pronounced legal standing.”
11. It is humbly submitted by the Counsel that the Right to be privacy being a qualified Right in Sharda v.
Dharmpal22 the Supreme Court said that though the right to personal liberty has been read into Article
21, it cannot be treated as an absolute right. To enable the court to arrive at a just conclusion a person
could be subjected to test even though it would invade his right to privacy. It concluded that one has to
maintain a balance between the rights of a citizen & the right to privacy. It ultimately requires a healthy
& congenial interrelationship between the social good & the individual liberty.
12. Right to privacy is subject to restrictions imposed by state thereby excluding the principles of natural
justice for legitimate cause. Principles of natural justice do not operate in areas where they are statutorily
excluded, whether expressly or by necessary implication.23 Similarly, for legislation by Parliament, no
principle of natural justice is attracted provided such legislation is within the competence of the
legislature.24
13. The Central government is competent authority and understands the need of its people and resultantly
can make laws to protect the national security of the state. Determining the legislative competence
under Schedule VII does not come down to finding the exact subject matter in one of the three lists.
Rather, courts use the test of “pith and substance” to identify the essence of a legislation and identify
which of the entries in the three lists best covers the issue. This doctrine was recognised by the
Supreme Court in its early days in the case of The State of Bombay and other vs. F.N.
Balsara 25where the court had to decide on whether the Bombay Prohibition Act was within the ambit
of List I or List II. Coming towards the data protection law, Entry 31 of List I,26 covers, “post,
telephone, telegraph, wireless, broadcast” etc. This clearly means that the parliament will also have

21
Ibid 10
22
AIR 2003 SC 3450, 2003 (3) ALT 41 SC, 2003 (2) AWC 1534 SC, 2003 (2) BLJR 1420, 2003 (2) CTC 760, I (2003) DMC 627
SC, 2004 (1) JCR 98 SC, JT 2003 (3) SC 399, 2003 (2) KLT 243 SC, RLW 2003 (3) SC 379, 2003 (3) SCALE 475, (2003) 4 SCC
493, 2003 3 SCR 106, 2003 (2) UJ 870 SC
23
Union of India vs. J. N. Sinha AIR 1971 S.C. 40
24
Charan Lal Sahu AIR 1990S.C.1480
25
1951 AIR 318, 1951 SCR 682
26
Schedule VII of the Constitution of Zindia, 1950
 the right to enact a data protection law for the telecom and internet sector regulating how that data
may be accessed or used. Same goes for Aadhaar, which is a centrally-funded project.
The government is competent authority to make and enact laws and its concerns for national security
are primary and valid. It is significant to note that when Community’s interest supersedes
individual’s interest.

B. Whether Cobalt sharing the Personal Data Sets with the Government & the Government sharing
the Personal Data Sets with Freepublic, was in breach of the terms based on which consent was
given by the users & also in violation of the terms of the Privacy Policy ?

2. It is humbly submitted to this Hon’ble Court that, Cobalt sharing the Personal Data Sets with the
Government & the Government sharing the Personal Data Sets with Freepublic, does not constitute
breach of the terms based on which consent was given by the users & also does not violate the terms of
the Privacy Policy.
3. The counsel submits to this Hon’ble Court the fact that the consent from the users was the result of
privacy policy as emphasized in clause 227

a. Valid consent obtained by cobalt for initiating data processing.

4. It is humbly submitted to this Hon’ble Court that Cobalt is a data fiduciary28 within the meaning of this
act. It is argued by the Counsel that the Personal data sets can be processed by the data fiduciary only on
the consent so obtained from the data principals as emphasized in § 1129 of the Act. It is contended that
the users of the App were required to consent to the collection & processing of these Personal Data Sets
as per Clause 2 of the Privacy Policy.30 Therefore it fulfils the requirement of Consent of Data Principal
for the initiation of data processing.

27
Clause 2 of the privacy policy; “The Personal Data Sets collected will be used only by Cobalt & its users. The Personal Data
Sets which is processed by Cobalt will be used for the purpose of informing the users or those people with whom the user has
come in contact with, of possible infection, in an anonymized form, without disclosing the identity of the infected person. In case
any user has tested COVID-19 positive, his/her Personal Data Sets may be shared by Cobalt with such necessary & relevant
Governmental authority or Government appointed healthcare facility, as may be required, in order to carry out necessary medical
& administrative interventions. The Personal Data Sets collected will not be used for any purpose other than those mentioned in
this Clause, unless otherwise is required by an order of the Government for a lawful purpose.”
28
§ 3; Wherein a "data fiduciary" means any person, including the State, a company, any juristic entity or any individual who
alone or in conjunction with others determines the purpose & means of processing of personal data
29
§ 11; (1) The personal data shall not be processed, except on the consent given by the data principal at the commencement of its
processing.(2) The consent of the data principal shall not be valid, unless such consent is—(a) free, having regard to whether it
complies with the standard specified under §14 of the Indian Contract Act, 1872; (b) informed, having regard to whether the data
principal has been provided with the information required under § 7; (c) specific, having regard to whether the data principal can
determine the scope of consent in respect of the purpose of processing; (d) clear, having regard to whether it is indicated through
an affirmative action that is meaningful in a given context; and (e) capable of being withdrawn, having regard to whether the ease
of such withdrawal is comparable to the ease with which consent may be given.
30
Para 4(a) page 2of the fact sheet.
 31
5. Although consent is a prior requirement before initiating data processing however, § 12 which
determines the grounds for non consensual proceedings states that data can be processed without the
consent of data principals under any law for the time being in force made by the Parliament or any State
legislature32 & to undertake any measure to ensure safety of, or provide assistance or services to, any
individual during any disaster or any breakdown of public order.33 The present situation is one which
fulfils the ground for non consensual processing. During the initial phase of the lockdown in Zindia,
certain posts were circulated on various media platforms, which demonstrated that a community
belonging to a minority religion called ‘ABC Jamal’’ was the reason for the spread of pandemic in
Zindia. This led to lynching of certain individuals from that community in various parts of the country 34
further, resulting in the issuance of Notification by the government.

b. Conformity with privacy policy.

6. It is humbly submitted to this Hon’ble Court that §535 of the Act which places obligation on the data
fiduciary to process data in a fair & reasonable manner also gives the right to data fiduciary to process
personal data of a data principal for the purpose for which consent was so obtained or for the purpose
incidental which the data principal can reasonably foreseen.
7. It is submitted to this Hon’ble court that the privacy policy explicitly lays down that in case an
individual gets infected with novel virus his information will be shared to necessary government
authority for medical & administrative interventions, hence, it was mentioned prior to consent so
obtained that the information for an infected person will be shared with governmental authority making
it evident that such transfer of personal data sets is a possibility and therefore, foreseeable.
8. No personal data shall be processed by any person, except for any specific, clear & lawful purpose.36 It
is contented by the Counsel that Cobalt shared the personal data sets with the government by virtue of
the Order passed by the government which further is in accordance with the privacy policy laid down in
clause 2 which explicitly mentions that ....The Personal Data Sets collected will not be used for any
purpose other than those mentioned in this Clause, unless otherwise is required by an order of the
Government for a lawful purpose. The lawful purpose has been dealt in detail in the aforesaid issue

31
§ 12. Notwithstanding anything contained in §11, the personal data may be processed if such processing is necessary,— (a) for
the performance of any function of the State authorised by law for— (i) the provision of any service or benefit to the data
principal from the State; or (ii) the issuance of any certification, licence or permit for any action or activity of the data principal by
the State; (b) under any law for the time being in force made by the Parliament or any State Legislature; or (c) for compliance with
any order or judgment of any Court or Tribunal in India;(d) to respond to any medical emergency involving a threat to the life or a
severe threat to the health of the data principal or any other individual; (e) to undertake any measure to provide medical treatment
or health services to any individual during an epidemic, outbreak of disease or any other threat to public health; or (f) to undertake
any measure to ensure safety of, or provide assistance or services to, any individual during any disaster or any breakdown of
public order.
32
Ibid 29
33
Ibid 29
34
¶ 6(a) of the fact sheet page 4
35
§5; Every person processing personal data of a data principal shall process such personal data—(a) in a fair & reasonable
manner & ensure the privacy of the data principal; & (b) for the purpose consented to by the data principal or which is incidental
to or connected with such purpose, & which the data principal would reasonably expect that such personal data shall be used for,
having regard to the purpose, & in the context & circumstances in which the personal data was collected.
36
§ 4 of the Act.
 which calls for the issuance of Notification by government to protect and maintain the National §urity of
Zindia.
9. Consent is said to be valid37 when it is informed38 & specific, however, nowhere in the act the same has
been defined .for this purpose the counsel is relied on the object of consent in relation to human subjects
in medical experiments wherein the same has been defined as “The voluntary consent of the human
subject is absolutely essential. This means that the person involved should have legal capacity to give
consent; should be so situated as to be able to exercise free power of choice, without the intervention of
any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or
coercion; & should have sufficient knowledge & comprehension of the elements of the subject matter
involved, as to enable him to make an understanding & enlightened decision. This latter element
requires that, before the acceptance of an affirmative decision by the experimental subject, there should
be made known to him the nature, duration, & purpose of the experiment; the method & means by which
it is to be conducted; all inconveniences & hazards reasonably to be expected; & the effects upon his
health or person, which may possibly come from his participation in the experiment.” 39

c. Exemption from the application of the Act.

10. It is further submitted to this Court that Cobalt is exempted from the application of the Act by virtue of
the said Notification.40It is contended by the Counsel that § 3541of the Act bestows the power to the
government to exempt any agency of the government from the application of the act. The constitution
nowhere defines a governmental agency; however, the same provides what is inclusive of State by virtue
of Art. 12.42 Without being exhaustive Bhagwati, J, discussed various factors relevant for determining
whether a body is an instrumentality or agency of the State. These factors as they were summarised by
him in Ajay Hasia v. Khalid Mujib43are; If the entire share capital held by government; financial
assistance by the state; enjoyment of monopoly status by corporation; deep & pervasive control of state;
functions are of public importance; & government can strongly interfere with the operations of
corporation.
11. It is contended by the Counsel that the Government introduced a medicine delivery app in tie-up with a
foreign medicine company “Cobalt” for doorstep delivery of flu related drugs, masks, & sanitizers.44
Although cobalt is a foreign medicine company its tie up with government resulted in the formation of
app. It can observed that there was considerable control of government on the data so collected by

37
Ibid 29

38
Shkolnick vs. Hosp for Joint Diseases, 211 AD2d 347 (1995), a radiologist won because he could convince the jury of a
thorough conversation outlining the risks, benefits, & in this instance the limited alternatives to achieve visualization of the
interior of the joint.
39
The Nuremberg Code (1949)
40
Para 5 page 4 of the fact sheet
41
Ibid 6
42
Article 12 of the constitution of Zindia, 1950
43
(1981) 1 SCC 722, 737: AIR 1981 SC 487
44
Para 4 page 2 of the fact sheet
 cobalt by the fact that it was given the right to interfere for necessary interventions as mentioned in the
privacy policy. Further, no other app functioned in the same manner as Cobalt & much reliability lies on
the app so introduced by the government than the private organisations. Further the function performed
by the app was to reduce the risk of possible infection by creating awareness among individuals which
can be listed as one of primary importance.

12. The counsel argues that the government is also exempted from the provision of Chapter II except § 4,
Chapters III to V, Chapter VI except § 24, & Chapter VII45 where personal data is processed in the
interests of prevention, detection, investigation & prosecution of any offence or any other contravention
of any law for the time being in force. Wherein the Personal Data Sets of such users resurfaced in social
media in the form of trolls & memes, which resulted in such users facing social stigma & mob lynching.
46

13. The offence for which the mob will be charged in usual scenario is under § 302 read with § 34 of the
Zindian Penal code; to kill someone with intention & knowledge is a murder & so the criminal will face
punishment under §302.Therefore the step can be seen as to ensure public safety; in an early case by the
Supreme Court to mean "security of the public or their freedom from danger. In that sense, anything
which tends to prevent dangers to public health may also be regarded as securing public safety. The
meaning of the expression must, however, vary according to the context."47
14. It is the responsibility of all levels of government to create, maintain & promote a context within which
relevant governmental institutions & all segments of civil society, including the corporate §tor, can
better play their part in preventing crime.48Situational crime prevention covers approaches that aim to
reduce the opportunities for people to commit crimes, to increase the risks & costs of being caught & to
minimize the benefits. According to paragraph 6 (c) of the Guidelines for the Prevention of Crime, such
approaches help “Prevent the occurrence of crimes by reducing opportunities, increasing risks of being
apprehended & minimizing benefits, including through environmental design, & by providing assistance
& information to potential & actual victims.”Crime prevention is seen as an integral aspect of the rule of
law. As the Secretary General stated “ in matters of justice & the rule of law, an ounce of prevention is
worth significantly more than a pound of cure ... prevention is the first imperative of justice.”49

d. Necessary interventions by the government.

15. It is humbly submitted to this Hon’ble Court that like all other governments across the world,
Government of Zindia was grappling to get the situation under control & was leaving no stone unturned
to contain & control the situation & get the economy back on its feet.50 It is further argued that the

45
§ 36 Of the Act
46
¶ 6(a) page 4 of the fact sheet
47
Romesh Thappar vs The State Of Madras AIR 1950 SC 124 , 1950 SCR 594
48
Chapter II of the Guidelines for the Prevention of Crime, entitled “Conceptual frame of reference”, states in paragraph 2
49
Secretary-General Ban Ki-moon in Friends of Mediation 2010
50
¶ 1 page 1 of the fact sheet
 government has immunity under the Notification issued by the Ministry of Home Affairs. It was
explicitly laid down in the same that the Government may process the Personal Data Sets that is
collected by Cobalt &/or the App in India, in any manner it may deem fit & the provisions of the Act
will not be applicable to such processing of the Personal Data Sets.51
16. The Government, through multiple policies & white paper, has expressed that the data of its citizen is a
resource of the country (as valuable as oil) & the country &/or its Government has the right to tap that
resource & prevent government of foreign countries & foreign entities from utilizing such resource in an
unrestricted manner.52 It is further argued that the Act was the result of such declarations & laid the
foundation for the ability of the Government to tap Zindia’s data resources, by restricting the flow of
Sensitive Personal Data of its citizens outside its territorial boundaries.53
17. It is further submitted to this Hon’ble Court that the government has immunity under the Act to do away
the requirement of obtaining consent if they have to take any measures during an epidemic, outbreak of
disease, at the time of threat to public health, disaster or any breakdown of public order.54
18. Further it is contended by the Counsel that the COVID-19 situation is a recognised as a natural disaster55
under the (Zindian) Disaster Management Act 2005.56 The Central Government is obligated to take all
such measures as it deems necessary or expedient for the purpose of disaster management 57. The privacy
policy stated the intervention of Government in case any user has tested COVID-19 positive, his/her
Personal Data Sets to be shared by Cobalt. The app served public function of collection of data which
was further shared for necessary medical & administrative interventions.
19. Nowhere in the Act has necessary medical & administrative intervention been defined however,
Committee of Experts under the Chairmanship of Justice B.N. on A Free & Fair Digital Economy
Protecting Privacy, Empowering Indians, while looking into grounds for non consensual proceedings
contented that while the application of this ground is limited to particular situations involving questions
of life & death of the data principal & threat of injury, it is not necessary for such threat to be
immediate.58 Therefore, this ground of processing can be used for collecting, using or sharing data in
situations when the harm is not immediate such as when there is a threat of epidemiological disease.
59 60
Moreover, this ground can be used in situations when there is risk of significant harm to life, where

51
¶ 5 page 3 of the fact sheet
52
¶ 2 page 1 of the fact sheet
53
Ibid 44
54
Ibid 29
55
§2 of the Disaster Management Act; “disaster” means a catastrophe, mishap, calamity or grave occurrence in any area, arising
from natural or manmade causes, or by accident or negligence which results in substantial loss of life or human suffering or
damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to
be beyond the coping capacity of the community of the affected area.
56
¶ 3 page 2of the fact sheet
57
§ 35 of (Zindian) Disaster Management Act 2005
58
Article 29 Data Protection Working Party, Opinion 06/2014 on the notion of legitimate interests of the data controller (2014) at
p. 20.
59
Article 29 Data Protection Working Party, Opinion 06/2014 on the notion of legitimate interests of the data controller (2014) at
p. 20.
60
Data Protection & Sharing- Guidance for Emergency Planners & Responders available
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/60970/datapro
 processing is necessary for humanitarian emergencies (disaster management) & where processing is
necessary to protect the data principal‘s life or health. The importance of this ground is further bolstered
by the fact that a number of countries have recognised it.61
20. It can be brought to understanding that such measures as taken by the government can be seen as
necessary interventions. The main purpose can be seen to take effective actions to mitigate spread of
pandemic & enhance governments’ preparedness. In order to formulate appropriate health responses
for addressing the COVID-19 pandemic, data pertaining to individuals is urgently required.

e. Government’s action in furtherance of Public Interest

21. It is submitted by the Counsel on behalf of the respondents that public interest supersedes self interest of
an individual. In Modern Dental College & Research Centre v. State of Madhya Pradesh,62 it found that
no constitutional right can be claimed to be absolute considering the interconnectedness of all rights, &
accordingly could be restricted. In that judgment, the Court also found that when there are tensions
between fundamental rights, they must be balanced against each other so that “they harmoniously
coexist with each other.”
22. In an early application of the concept of public interest, Post Publishing Co. v. Hallam63, an action for
libel, Judge William H. Taft, later President & Chief Justice of the United States, wrote: The existence &
extent of privilege in communications are determined by balancing the needs & good of society against
the right of an individual to enjoy a good reputation when he has done nothing which ought to injure it.
The privilege should always cease where the sacrifice of the individual right becomes so great that the
public good to be derived from it is outweighed. In McClung v. Pulitzer Publishing Co64the court ruled
that a newspaper's discussion regarding the allegedly brutal treatment of prisoners in a state penitentiary
was a matter of public interest. This decision clarified the role of the courts in defining the public
interest: "It is the duty & province of the court to determine whether the matter spoken or written about
is a matter of public interest.
23. The GDPR requires data controllers and processors to have a lawful basis to process personal data. The
regulation delineates six possible legal bases: (1) consent; (2) performance of contract; (3) compliance
with a legal obligations; (4) protection of the “vital interests” (i.e., the life) of the data subject or another
individual; (5) tasks carried out in the public interest (e.g., by a government entity); and (6) the

tection.pdf
61
Article 6(d), EU GDPR; Article 9 (2) (c) read with Recital 112, EU GDPR; §76 read with Schedule 10 (3), UK Data Protection
Bill; §11(d), POPI Act. As per the EU GDPR, this ground is permitted to be used where processing is necessary in order to protect
the vital interests of the data principal or of any other person. Additionally, in situations where processing is necessary to protect
the vital interests of the data subject or of another person where the data subject is physically or legally incapable of giving his
consent‘, the ground of vital interest may be invoked. The UK Data Protection Bill has a provision similar to the EU
GDPR
62
(2016) 7 SCC 353

63
326 U.S. 1 (1945)

64
279 Mo. 370
 “legitimate interests” of the controller or a third party, unless the fundamental rights and freedom of the
data subject override those interests.

f. Dissemination of information for public interest

24. The role of Freepublic in the issuance of the names of individuals infected with the novel virus is
considered to be an act done in good faith and with a journalistic purpose65 for the flow of information to
further the cause of public interest.
25. For instance, in United States v. Associated Press66, Judge Learned Hand dealt squarely with the
question of the public interest raised in the case when he wrote: “Neither exclusively, nor even primarily,
are the interests of the newspaper industry conclusive; for that industry serves one of the most vital of all
general interests: the dissemination of news from as many different sources, & with as many different
facets & colours as is possible. That interest is closely akin to, if indeed it is not the same as, the interest
protected by the First Amendment; it presupposes that right conclusions are more likely to be gathered
out of a multitude of tongues, than through any kind of authoritative selection. To many this is, & always
will be, folly; but we have staked upon it our all.”Adding support to this statement when the case
reached the Supreme Court was Justice Felix Frankfurter who, in a concurring opinion, wrote: “The
interest of the public is to have the flow of news not trammelled by the combined self-interest of those
who enjoy a unique constitutional position precisely because of the public dependence on a free press. A
public interest so essential to the vitality of our democratic government may be defeated by private
restraints no less than by public censorship.”
26. It is submitted to this Hon’ble Court the fact that the data principals can only withdraw consent to
processing however the act nowhere mentions a specific right to object data processing unlike GDPR
wherein in the data controller has the right to object the data processing however in case of processing in
public interest or for legitimate interests of data controller, the Right is not available where processing or
archiving for public interest, scientific or historical research purposes. 67
27. In cases where public interest is necessitated rights of an individual turns secondary, for instance in the
case of in Mr. X v. Hospital Z68 the Supreme Court held that doctor-patient relationship though basically
commercial, is professionally a matter of confidence &, therefore, doctors are morally & ethically bound
to maintain confidentiality .In such a situation public disclosure of even true private facts may
sometimes lead to the clash of one person’s right to be let alone with another person’s right to be
informed.

65
§ 3(24) ;"journalistic purpose" means any activity intended towards the dissemination through print, electronic or any other
media of factual reports, analysis, opinions, views or documentaries regarding—(i) news, recent or current events; or
(ii) any other information which the data fiduciary believes the public, or any significantly discernible class of the public, to have
an interest in.
66
326 U.S. 1 (1945)
67
Article 14 of Directive 95/46
68
(2003) 1 SCC 500.
28. In Berg v. Minneapolis Star & Tribune,69 a privacy suit, arising from publicity given to a divorce &
custody proceeding, the court stated: "Everyone will agree that at some point the public interest in
obtaining information becomes dominant over the individual's desire for privacy." §urity is vital to
survival, not just of people but of every living thing. Privacy is unique to humans, but it’s a social need.
It’s vital to personal dignity, to family life, to society to what makes us uniquely human but not to
survival.

C. Whether storage of the Sensitive Personal Data (as defined under the Act) outside the territorial
boundaries of Zindia by Cobalt and its failure to maintain Security safeguards as per the provisions of
the Act, which resulted in the breach of Personal Data Sets, is in violation of the provisions of the Act.

1. It is humbly submitted to this Hon’ble Court that Cobalt transferred the Personal Data Sets outside
Zindia for processing only and copies of such Personal Data Sets has been stored within Zindia, thereby
complying with the provisions of the Act and it has been unable to fulfil the terms of the Privacy Policy
due to a FM event.
2. It is further submitted in this Court that Clause 7 of the Privacy Policy states that: “The parties shall be
exempted from performing their obligations in the case of a FM event.”

a. Personal data sets were stored within the territory of Zindia.

3. It is humbly submitted by the Counsel on behalf of the respondents that the personal data may be transferred
outside Zindia, but such sensitive personal data shall continue to be stored in Zindia.70 However, the
transfer is subject to conditions as laid down in § 3471 of the Act. The primary conditions as laid down in
§ 34 are (a) makes it requisite that an explicit consent is to be obtained from the data principals for such

69
79 F. Supp. 957 (D. Minn. 1948)
70
§33; (1) Subject to the conditions in sub-section (1) of § 34, the sensitive personal data may be transferred outside India, but
such sensitive personal data shall continue to be stored in India. (2) The critical personal data shall only be processed in India.
Explanation.—For the purposes of sub-section (2), the expression "critical personal data" means such personal data as may be
notified by the Central Government to be the critical personal data.
71
§34; (1) The sensitive personal data may only be transferred outside India for the purpose of processing, when explicit consent
is given by the data principal for such transfer, and where—(a) the transfer is made pursuant to a contract or intra-group scheme
approved by the Authority: Provided that such contract or intra-group scheme shall not be approved, unless it makes the
provisions for—(i) effective protection of the rights of the data principal under this Act, including in relation to further transfer to
any other person; and (ii) liability of the data fiduciary for harm caused due to non-compliance of the provisions of such contract
or intra-group scheme by such transfer; or (b) the Central Government, after consultation with the Authority, has allowed the
transfer to a country or, such entity or class of entity in a country or, an international organisation on the basis of its finding that—
(i) such sensitive personal data shall be subject to an adequate level of protection, having regard to the applicable laws and
international agreements (ii) such transfer shall not prejudicially affect the enforcement of relevant laws by authorities with
appropriate jurisdiction: Provided that any finding under this clause shall be reviewed periodically in such manner as may be
prescribed; (c) the Authority has allowed transfer of any sensitive personal data or class of sensitive personal data necessary for
any specific purpose.(2) Notwithstanding anything contained in sub-section(2) of section 33, any critical personal data may be
transferred outside India, only where such transfer is—(a) to a person or entity engaged in the provision of health services or
emergency services where such transfer is necessary for prompt action under section 12; or(b) to a country or, any entity or class
of entity in a country or, to an international organisation, where the Central Government has deemed such transfer to be
permissible under clause (b) of sub-section(1) and where such transfer in the opinion of the Central Government does not
prejudicially affect the security and strategic interest of the State. (3) Any transfer under clause (a) of sub-section (2) shall be
notified to the Authority within such period as may be specified by regulations
 transfer; (b) the Authority has allowed transfer of any sensitive personal data or class of sensitive
personal data necessary for any specific purpose; and (c) the transfer is made pursuant to a contract or
intra-group scheme approved by authority.
4. It is contended by the Counsel that the clause 1 of the privacy policy explicitly mentioned that the
Personal Data Sets which are collected from the users are transferred on a real time basis to and kept in
the servers of a third-party cloud service provider (having their servers outside India), so that the data
can be easily accessed anytime and from anywhere.72 Therefore, consent was obtained for the data to be
kept in the third party server by the data fiduciary, Cobalt from the data principals, the users of the app.
5. Further the authority73 may allow the transfer for any specific purpose; the authority referred is
established by the Central government itself which in tie up with Cobalt introduced the App. However,
nowhere in the act the specific purpose has been defined. The counsel therefore relied to interpret the
same, with pursuant of the government declaring Covid-19 as disaster under Natural disaster
management act;74 the counsel presupposes the meaning of specific purpose in accordance with the
existing circumstances as surveillance to prevent the spread of Covid-19, which necessitates the access
of possibly infected individuals at global level.

b. Cobalt was unable to fulfil its obligation due to FM event.

6. It is humbly submitted to this Hon’ble Court that Cobalt has been unable to fulfil its obligations due to a
FM event. The counsel relied upon the notification by Ministry of Finance dated 19.02. 2020 for the
definition and interpretation of a FM event.75
7. The term ‘FM’ has been defined in Black’s Law Dictionary, as ‘an event or effect that can be neither
anticipated nor controlled. It is a contractual provision allocating the risk of loss if performance becomes
impossible or impracticable, especially as a result of an event that the parties could not have anticipated
or controlled.
8. A FM event refers to an act which is beyond the control of party. It is contended by the Counsel that due
to the nationwide lockdown, employees of Cobalt were asked to work from home and all of them were
able to access the Personal Data Sets from their take-home device. As the transition was done quickly to

72
Page 3of the fact sheet
73
§ 41 of the Act
74
Page 2 of the fact sheet.
75
‘A FM means extraordinary events or circumstances beyond human control such as an event described as an act of God (like a
natural calamity) or events such as a war, strikes, riots, crimes (but not including negligence or wrong-doing, predictable/seasonal
rain and any other events specifically excluded in the clause). An FM clause in the contract frees both parties from contractual
liability or obligation when prevented by such events from fulfilling their obligations under the contract. This clause does not
excuse a party’s non-performance entirely, but only suspends it for the duration of the FM. The firm has to give notice of FM as
soon as it occurs and it cannot be claimed ex-post facto. There may be a FM situation affecting the purchasing organisation only.
In such a situation, the purchasing organisation is to communicate with the supplier along similar lines as above for further
necessary action. If the performance in whole or in part or any obligation under this contract is prevented or delayed by any reason
of FM for a period exceeding 90 (ninety) days, either party may, at its option, terminate the contract without any financial
repercussion on either sides. Notwithstanding the punitive provisions contained in the contract for delay or breach of contract, the
supplier would not be liable for imposition of any such sanction so long as the delay and/ or failure of the supplier in fulfilling its
obligations under the contract is the result of an event covered in the FM clause .
 maintain continuity of service, proper security safeguards were not used at the time of transition.76
Cobalt sought reliance on a FM clause as the event was beyond control of Cobalt and that it has taken all
reasonable steps, seeking alternative to maintain continuity of services to overcome or mitigate the event
and its consequence, however, there were no alternate means to confirm its obligation.
9. It could be argued that an epidemic/ pandemic like Covid-19 falls within the ambit of the FM clause.
Even otherwise (i.e. even in the absence of such catch-all language), if ‘Vis Major’/ ‘Act of God’ has
been specifically included as a FM event, it can be contended that an epidemic like Covid-19 is an ‘Act
of God’. The argument to that effect can derive support from the decision of the Supreme Court in The
Divisional Controller, KSRTC v. Mahadava Shetty77 which holds that the expression ‘Act of God’
signifies the operation of natural forces free from human intervention with the caveat that every
unexpected natural event does not operate as an excuse from liability if there is a reasonable possibility
of anticipating their happening. Similar judgments have also been passed by the Madras High
Court78 and the Kerala High Court79
10. However, Courts in the United States of America and the United Kingdom have specifically held that the
expression ‘Act of God’ includes a pandemic/ epidemic. For instance, in Lakeman v. Pollard80, a
labourer at a mill left his job early during a cholera epidemic due to concerns of contracting the disease
and, therefore, failed to complete his work contract. In an action by the mill owners seeking
compensation for work done by the labourer, it was argued that the work contract had been breached.
The Supreme Court of Maine held that the cholera outbreak was an ‘Act of God’ and the labourer was
thus not in breach of his contract since duty to perform under the contract was discharged.
11. Under UK law, it has been held that the inability of a party to deliver an aircraft on time due to a
pandemic causing a dearth of pilots fell within the catch-all residuary wording of a FM clause.81
12. It is humbly submitted to this Hon’ble Court that the lockdown and its consequences couldn’t be
reasonably foreseeable by Cobalt. The transition from physical office to work from home was not
foreseeable by Cobalt; the quick transition did not give any opportunity to Cobalt to build a network
based infrastructure. The present case is a perfect example of government order leading to non fulfilment

76
Page 4 of the fact sheet
77
2003 7 SCC 197; See also Province of Madras vs. I.S and G Machado AIR 1955 Mad 519

78
P.K. Kalasami Nadar vs. Ponnuswami Mudaliar, AIR 1962 Mad 44

79
R.R.N. Ramalinga Nadar vs. V. Narayana Reddiar AIR 1971 Ker 197 and Kerala Transport Co. vs. Kunnath Textile, 1983 KLT
480
80
Similarly, in Coombs v. Nolan, the District Court for the Southern District of New York excused a delay in the discharge of
cargo where the defendant could not obtain enough horses to unload a ship on time due to a then prevailing horse flu pandemic on
the ground that the horse flu pandemic fell within the ambit of ‘Act of God’.In Sandry v. Brooklyn School District, the Supreme
Court of North Dakota considered an appeal pertaining to claims by school bus drivers for their wages/compensation under their
transportation contracts during the period that the schools were shut owing to the influenza outbreak. The Supreme Court of North
Dakota discharged the school district from paying the bus drivers during the period that the schools were shut due to the influenza
epidemic. It is pertinent to note that the reasoning was based on the fact that the contract had become impossible to perform due to
the shut-down.
81
Aviation Holdings Ltd. vs. Aero Toy Store LLC, [2010] 2 Lloyd’s Rep 668.
 of the privacy policy. Cardozo CJ famously held in Palsgraf v Long Island Railroad Company82 in 1928
that there had been no breach of any duty owed to the plaintiff, to whom injury as a result of the
defendant’s employee’s negligent conduct was unforeseeable.
13. Further insisting upon such performance would be unjust as upheld in the case, Taylor vs.
Caldwell,83that if some unforeseen event occurs during the performance of a contract which makes it
impossible of performance, in the sense that the fundamental basis of the contract goes, it need not be
further performed, as insisting upon such performance would be unjust.
14. No punitive action arises contained in the contract for delay or breach due to FM as the supplier would
not be liable for imposition of any such sanction so long as the delay and/ or failure of the supplier in
fulfilling its obligations under the contract is the result of an event covered in the FM clause. Whilst also
saving the non-performing party from the consequences of something over which it has no control.84
15. While FM has neither been defined nor specifically dealt with, in Indian statutes, some reference can be
found in § 5685 of the Contract Act which deals with agreements between the parties to do an impossible
act or 'doctrine of frustration' can be applied to such contract so as to discharge the parties from their
contractual obligations.
16. The law on the 'doctrine of frustration' has been laid down in India by the Supreme Court in the seminal
decision of Satyabrata Ghose v. Mugneeram Bangur & Co.86 The word "impossible" has not been used
in the § 56 of the Contract Act in the sense of a physical or literal impossibility. The performance of an
act may not be literally impossible, but it may be impracticable and useless from the point of view of the
object and purpose of the parties. If an untoward event or change of circumstance totally upsets the very
foundation upon which the parties entered their agreement, it can be said that the promisor finds it
impossible to do the act which he had promised to do. It was further held that where the court finds that
the contract itself either impliedly or expressly contains a term, according to which performance would
stand discharged under certain circumstances, the dissolution of the contract would take place under the
terms of the contract itself and such cases would be dealt with under § 3287 of the Contract Act. Cobalt is
a network based service app, rendering its services via the servers where the data is being stored. Due to
work from home the employees residing in other part of the world (Xina) used the third party server to
mitigate the effect and continue their services but failed to do so due to the FM.
14. In a landmark judgement of Energy watchdog Vs. Central Electricity Regulatory Commission88, Justice
R.F. Nariman of the Supreme Court opined that the event leading to frustration which is relatable to an
express or implied clause in a contract, is governed by § 32 of the Act and if it occurs de hors the

82
248 N.Y. 339, 162 N.E. 99 (1928)
83
(1861-73) All ER Rep 24
84
Dhanrajamal Gobindram vs. Shamji Kalidas & Co., AIR 1961 SC 1285 .
85
Agreement to do impossible act.—an agreement to do an act impossible in itself is void.
86
1954 SCR 310
87
Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until
that event has happened. If the event becomes impossible, such contracts become void.
88
reported at 2017 (4) SCALE 580
 contract, it is dealt with by a rule of positive law under § 56 of the Act. Under the prevailing
circumstances, reliance on § 54 of the Act depends upon the following conditions: I. a valid and
subsisting contract between the parties; II. There must be some part of the contract yet to be performed;
and III. The contract after it is entered into becomes impossible of performance i.e. subsequent
impossibility. It is imperative to mention that the Indian Courts are according relief on account of
subsequent impossibility when it is found that the whole purpose or the basis of the contract has been
frustrated by the intrusion or occurrence of an unexpected event or change in circumstances, which was
not contemplated by the parties during execution of the contract1 or the performance of the contract
becomes impracticable or useless having regard to the object and purpose the parties had in view.

D. Whether there is lack of separation of power within the Authority formed under the Act, as the
Adjudicating Officer is appointed by the same Authority which appoints the Inquiry Officer (as
per the provisions of the Act).

1. It is humbly submitted in this Hon’ble Court that the doctrine of separation of power has been observed
under the said act.
2. It is humbly submitted to this Hon’ble Court that the need of the adjudicating wing is felt for awarding
sanctions to the data fiduciary when found guilty for contravening the provisions of the act.89 While an
inquiry officer is appointed by the authority to inquire the cause in case of contravention of the
provisions of the act by the data fiduciary on receiving a complaint on reasonable grounds.90Further the
inquiry officer is vested with the power to conduct search and seizure, and to submit a report of such to
the authority which is empowered to order warning, temporary suspension, cancelling registration and
reprimanding the data fiduciary if found contravening the provisions of the act. So ultimately the power
rests with the authority and not with the inquiry officer.
3. Not only the there is separation of power existing between functions to be exercised by both the officers
but also the adjudicating wing of the authority is operates independently and separately. To ensure the
same as well as neutrality of the adjudication the central government prescribe the manner, terms,
number and other such requirements of the adjudicating officers and not the authority itself.91 The
Adjudication Wing functions at arm‘s length from the remaining wings of the DPA which deal with
legislative matters and executive enforcement.
4. Drawing an analogy of separation of power amongst the organs of the government, namely the executive
and judiciary, the role of inquiry officer is to conduct search as an executive in order to execute the
smooth functioning of law by inquiring about any conduct detrimental to data principals to protect their

89
§62 of the Act.
90
§ 54 of the Act
91
§ 62 of the Act
 interest which is the main object of the act. The duty of the adjudicating officer is analogous to judiciary
thereby awarding sanctions.
5. However, the constitutional scheme does not embody any formalistic and dogmatic division of powers.
In Constituent Assembly Debates Prof. K.T. Shah a member of Constituent Assembly laid emphasis to
insert by amendment a new Article 40-A concerned with doctrine of separation of powers. This Article
reads: “There shall be complete separation of powers as between the principal organs of the State, viz;
the legislative, the executive, and the judicial.” Shri K. Hanumanthiya, a member of Constituent
Assembly dissented with the proposal he stated “Instead of having a conflicting trinity it is better to have
a harmonious governmental structure. If we completely separate the executive, judiciary and the
legislature conflicts are bound to arise between these three departments of Government. In any country
or in any government, conflicts are suicidal to the peace and progress of the country..... Therefore in a
governmental structure it is necessary to have what is called “harmony” and not this three-fold
conflict.”92
6. Dr. B.R. Ambedkar, one of the important architects of Indian Constitution, disagreeing with the
argument of Prof. K.T. Shah, advocated thus: “There is no dispute whatsoever that the executive should
be separated from the judiciary. With regard to the separation of the executive from the legislature, it is
true that such a separation does exist in the Constitution of United States; but many Americans
themselves were quite dissatisfied with the rigid separation embodied in the American Constitution
between the executive and legislature......... There is not slightest doubt in my mind and in the minds of
many students of Political Science, that the work of Parliament is so complicated, so vast that unless and
until the members of the Legislature receive direct guidance and initiative from the members of the
Executive, sitting in Parliament, it would be very difficult for Members of Parliament to carry on the
work of the Legislature93
7. In Indira Nehru Gandhi v. Raj Narain,94 Ray C.J.also observed that in the Indian Constitution there is
separation of powers in a broad sense only. A rigid separation of powers as under the American
Constitution or under the Australian Constitution does not apply to India. However, the Court held that
though the constituent power is independent of the doctrine of separation of powers to implant the story
of basic structure as developed in the case of Kesavananda Bharati v. State of Kerela,95 on the ordinary
legislative powers will be an encroachment on the theory of separation of powers. Nevertheless, Beg, J.
added that separation of powers is a part of the basic structure of the Constitution. None of the three
separate organs of the Republic can take over the functions assigned to the other. This scheme of the
Constitution cannot be changed even by resorting to Article 368 of the Constitution.

92
Constituent Assembly Debates Book No.2, Vol. No. VII Second Print 1989, p. 959.
93
Ibid 92
94
1975 AIR 2299 = 1976 (2) SCR 347 = 1975 Suppl. SCC 1 Civil Appeals Nos. 887 and 909 of 1975
95
in I.R. Coelho vs. State of Tamil Nadu, S.C. took the opinion opined by the Supreme court in Kesavananda Bharati case
pertaining to the doctrine of basic structure and held that the Ninth Schedule is violative of the above-said doctrine and hence
from now on the Ninth Schedule will be amenable to judicial review which also forms part of the basic structure theory.
8. In the case of I.C. Golak Nath v State of Punjab, Subha Rao,96 C.J opined that, “The constitution brings
into existence different constitutional entitles, namely the union, the state and the union territories. It
creates three major instruments of power, namely the Legislature, the Executive and the Judiciary. It
demarcates their jurisdiction minutely and expects them to exercise their respective powers without
overstepping there limits. They should function with the spheres allotted to them”
9. There operates system of interlinked roles of the adjudicating officer and the inquiry officer required for
the smooth implementation and development of the data protection law. It often happens that the wings
might exercise other functions as well. For instance, the President of India also exercises judicial
function. Article 103(1) of the Constitution is notable in this connection. According to this Article “If
any question arises as to whether a member or either of House of Parliament has become subject to
disqualification mentioned in clause (1) of Article 102, the questions hall be referred for the decision of
the President and his decision shall be final”. Article 50 lays emphasis to separate judiciary from
executive. But in practice we find that the executive also exercises the powers of judiciary as in
appointment of judges. (Articles 124, 126 & Article 127).
10. Virtually, absolute separation of powers is not possible in any form of Government. Justice Frankfurter
said; “Enforcement of a rigid conception of separation of powers would make modern Government
impossible.” Strict separation of powers is a theoretical absurdity and practical impossibility.97
11. "When we speak of a separation of the three great departments of government, and maintain that that
separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not
meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common
link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is,
that the whole power of one of these departments should not be exercised by the same hands which
possess the whole power of either of the other departments; and that such exercise of the whole would
subvert the principles of a free constitution." . . . "Indeed, there is not a single constitution of any State in
the Union, which does not practically embrace some acknowledgment of the maxim, and at the same
time, some admixture of powers constituting an exception to it.98

E. Whether the power to perform adjudicatory functions being vested in an Adjudicating Officer,
who is not a member of any judicial body, has led to usurpation of judicial power and conferment
of the same on such non-judicial body of the Adjudicating Officer.

1. It is humbly submitted in this Hon’ble Court that there has been no usurpation of judicial power by the
adjudicating officer who is being vested with the power to adjudicate matters and sanction awards.

96
1967 AIR 1643, 1967 SCR (2) 762
97
Frankfurter – The Public and its Government (1930) quoted by B. Schwartz, in American Constitutional Law, 1955 Page 286.
98
STORY, CONSTITUTION, 5 ed., 393, 39
2. While rendering remedies what authority should be considered as legitimate and competent, it is
important to understand what constitutes a ‘judicial authority’. In R. v. London County Council,99
Saville, L.J., gave the following meaning to 'Court' or 'judicial authority': "It is not necessary that it
should be a Court in the sense that this Court is a Court; it is enough if it is exercising, alter hearing
evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an
opposition; and it is not necessary to be strictly a Court; if it is a tribunal which has to decide rightly
after hearing evidence and opposition."
3. It is submitted in this Hon’ble Court that a reasonable opportunity is given to the parties in dispute
100
before the adjudicating officer, thereby offering a better and conclusive award, rendering judicial
function to the aggrieved parties.
4. It is humbly submitted to this Hon’ble Court that an adjudicating officer is a person of law who is
expected to be a person of ability, integrity and standing and have specialised knowledge of, not less
than seven years of professional experience in the field of laws, cyber and internet laws, information
technology law and policy, data protection and related subjects.101
5. It is further submitted in this Hon’ble Court that the act by the adjudicating officer is a quasi judicial act
as opposed to an administrative act. discussing the act of election commission this Hon’ble court
distinguished between quasi judicial and administrative acts in Indian National Congress v Institute of
Social Welfare &Ors,102 It was observed in that case that, “What distinguishes an administrative act
from a quasi-judicial act is that in the case of quasi-judicial functions under the relevant law be
statutory authority is required to act judicially. In other words where law requires that an authority
before arriving at a decision must make an enquiry such a requirement of law makes the authority a
quasi judicial authority. Another test which distinguishes administrative function from quasi-judicial
function is that the authority which acts quasi-judicially is required to act according to the rules,
whereas the authority which acts administratively is dictated by policy and expediency.”
6. It is further submitted in this Hon’ble court that an adjudicating officer is expected to hold an enquiry103
and has been vested with the power to summon any person who is acquainted with the facts and
circumstances to give a reliable award.

99
(1931) 2 KB 215
100
§63 (1) of the Act.
101
§ 62(3) of the Act.
102
2002 (5) SCC 685
103
§63. (1) No penalty shall be imposed under this Chapter, except after an inquiry made in such manner as may be prescribed,
and the data fiduciary or data processor or any person, as the case may be, has been given a reasonable opportunity of being heard:
Provided that no inquiry under this section shall be initiated except by a complaint made by the Authority. (2) While holding an
inquiry, the Adjudicating Officer shall have the power to summon and enforce the attendance of any person acquainted with the
facts and circumstances of the case to give evidence or to produce any document which, in the opinion of the Adjudicating
Officer, may be useful for or relevant to the subject matter of the inquiry. (3) If, on the conclusion of such inquiry, the
Adjudicating Officer is satisfied that the person has failed to comply with the provisions of this Act or has caused harm to any
data principal as a result of any contravention of the provisions of this Act, the Adjudicating Officer may impose such penalty
7. It is further submitted that the Authority as established under the act is regulatory in nature preventing
the parties to contravene the provisions of the act, however, the adjudicatory officer so established by the
statue receives it powers as a separate wing and functions as an adjudicatory body. In Braham Dutt
(supra), the Supreme Court observed that it would be appropriate for the Union of India to consider the
creation of two separate bodies: one advisory and regulatory, and the other adjudicatory; and an
appellate body following up the adjudicatory body. It is further submitted that any person aggrieved by
an order under this section by the Adjudicating Officer may prefer an appeal to the Appellate
Tribunal.104
8. The question whether every matter requires judicial intervention for realising the remedies by the
aggrieved party the Supreme Courts discussion on Jurisdiction of the Court under Art 32 in Santosh
Singh vs Union of India,105 the court observing the jurisdiction of article 32 not a panacea for all ills but
a remedy for the violation of fundamental rights. The Court observed that, ‘The judicial process provides
remedies for constitutional or legal infractions. The Court must abide by the parameters governing a
nuanced exercise of judicial power. When issues of governance are brought before the Court, the
invocation and exercise of jurisdiction must depend upon whether such issue can be addressed within
the constitutional or legal framework. Matters of policy are committed to the executive. The Court is
concerned with the preservation of the rule of law. It is unrealistic for the Court to assume that it can
provide solutions to vexed issues which involve drawing balances between conflicting dimensions that
travel beyond the legal plane. Matters to which solutions may traverse different fields cannot be
regulated by the Court by issuing mandamus. Courts are concerned with issues of constitutionality and
legality. Every good perceived to be in societal interest cannot be mandated by the Court. An issue
whose solution does not lie in a legal or constitutional framework is incapable of being dealt with in
terms of judicially manageable standards. The remedies for perceived grievances regarding matters of
policy and governance lie with those who have the competence and the constitutional duty in that
behalf.’

specified under relevant section. (4) While deciding whether to impose a penalty under sub-section (3) and in determining the
quantum of penalty under sections 57 to 61, the Adjudicating Officer shall have due regard to the following factors, namely:— (a)
nature, gravity and duration of violation taking into account the nature, scope and purpose of processing concerned; (b) number of
data principals affected, and the level of harm suffered by them; (c) intentional or negligent character of the violation; (d) nature
of personal data impacted by the violation; (e) repetitive nature of the default; (f) transparency and accountability measures
implemented by the data fiduciary or data processor including adherence to any relevant code of practice relating to security
safeguards; (g) action taken by the data fiduciary or data processor to mitigate the harm suffered by data principals; and (h) any
other aggravating or mitigating factors relevant to the circumstances of the case, such as, the amount of disproportionate gain or
unfair advantage, wherever quantifiable, made as a result of the default. (5) Any person aggrieved by an order under this section
by the Adjudicating Officer may prefer an appeal to the Appellate Tribunal.

104
§ 64(5) of the Act.
105
(2016) 8 SCC 253
9. Further it is contended that the Adjudication Wing of the authority have the power of imposing monetary
penalties on infringing data fiduciaries. Civil penalties have been acknowledged as an effective method
of ensuring deterrence.106 In addition, shall also have a separate and independent Adjudication Wing
which shall consist of such number of Adjudicating Officers as the Central Government may prescribe.
The Central Government must undertake a capacity assessment exercise before determining the number
of Adjudicating Officers who would be part of this office.107
10. Further, the terms and conditions of appointment of such Adjudicating Officers must ensure their
independence.108 The Adjudication Wing should function at arm‘s length from the remaining wings of
the DPA which deal with legislative matters and executive enforcement. The Adjudicating Officers shall
have the power to conduct an enquiry and adjudicate any dispute arising between data fiduciaries and
data principals, including availing any compensation.109
11. On the question for determination of offences and compensation under the statue in India In
Bhaishankar Nanabhai v. Municipal Corporation of Bombay,110 their Lordships of the Bombay High
Court held :
"Where a special tribunal, out of the ordinary course is appointed by an Act to determine questions as to
rights which arc the creation of that Act, then, except so far as otherwise expressly provided or
necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. It is an
essential condition of these rights that they should be determined in the manner prescribed by the Act, to
which they owe their existence. In such a case there is no ouster of the jurisdiction of the ordinary courts
for they never had any."
12. Evidently the adjudication of disputes under the said act offers an alternative to the authority to work
both as regulatory and adjudicating authority thereby speeding up the process of quick resolution
mechanism and data protection regulation.

106
Max Minzner, Why Agencies Punish, 53(3) William and Mary Law Review (2012); Michelle Welsh, Civil
107
The committee report of J. Srikrishna pg.158
108
§ 62(2) of the Act
109
Ibid 107
110
(1907) ILR 31 Bom 604
 PRAYER

WHEREFORE IN THE LIGHT OF ARGUMENTS ADVANCED, AUTHORITIES CITED AND FACTS

MENTIONED THE HONOURABLE COURT MAY BE PLEASED TO ADJUDICATE THAT:

1. To dismiss the petition filed by the appellants in the instant case, there being no infringement of
fundamental rights as enshrined under part III of the Constitution Of Zindia, 1950 pursuant to issuing of
Notification being in conformity with the Constitution;
2. To dismiss the irrespective claims by the appellants as argued for the impugned contravention of the act
by Government and Cobalt which acted in furtherance of the Notification;
3. To uphold the award given by the Adjudicating Officer;
4. To dispose of the writ in the nature of mandamus or any other appropriate writ challenging the validity
of office of adjudicating officer as a judicial wing;

And any other relief that this Hon’ble court may be pleased to grant in the interest of justice, equity and
good conscience

All of which is most humbly prayed

Sd-
Counsel of Respondents