SYMBIOSIS INTERNATIONAL DEEMED UNIVERSITY, PUNE

TUTORIAL –I
TEAM CODE: 12

MOOT PROPOSITION 6: RESPONDENT

Submitted by

Anushree S. Nair- 17010323011 Division- ‘A’ BA LLB

Simran Kaur Bhatia- 17010323053 Division- ‘A’ BA LLB

Vidhi Marwaha- 17010323128 Division- ‘B’ BA LLB

Yash Dhawan- 17010323130 Division- ‘B’ BA LLB

Purnima Chanana- 17010324112 Division- ‘D’ BBA LLB

BATCH: 2017-22

SYMBIOSIS LAW SCHOOL, HYDERABAD

ON

3rd April, 2021

Under the guidance of

Ms. Sanya Agarwal

(Assistant Professor)
Symbiosis Law School, Hyderabad
Global Legal Skills
IN THE SUPREME COURT OF BHARATHAM, NEW TELHI

WRIT PETITION (CIVIL) No.5590 OF 2021

IN THE MATTER OF PUBLIC INTEREST LITIGATION

KAITANYA & OTHERS…. PETITIONERS

Versus

REPUBLIC OF BHARATHAM& OTHERS …. RESPONDENTS

2
 INDEX

Serial Particulars Page Number

Number
1. Counter Affidavit on behalf of Respondents No.1 5
&2
2. Statement of Facts 6
3. Preliminary Submissions 7

4. Issues raised in the Writ Petition Filed by Learned 8

Counsel of the Petitioners

5. Reply to the Issues raised in the Writ Petition Filed 8

by Learned Counsel of the Petitioners

6. Prayer 18

3
 THROUGH

Sanjay Kumar Lal

LEGAL ADVISOR OF TALKSAPP PVT. LTD., UDYOG BHAWAN,
NEW TELHI- 0222
ENO.D/566/18
PH: 011-26391256, (M) 9932119920

Archana Sharma

CENTRAL GOVERNMENT STANDING COUNSEL 461, LAWYERS

CHAMBERS, TELHI I-II: -1 SUPREME COURT NEW TELHI-I I 0024

ENO.D/499/19
PH: 011-23381256, (M) 9811191920

4
 IN THE SUPREME COURT OF BHARATHAM, NEW TELHI

WRIT PETITION (CIVIL) No.5590 OF 2021

IN THE MATTER OF PUBLIC INTEREST LITIGATION

KAITANYA & OTHERS…. PETITIONERS

Versus

REPUBLIC OF BHARATHAM& OTHERS…. RESPONDENTS

I, Sanjay Kumar Lal Aged 48 years, Bharatham Inhabitant, presently working as a the legal
advisor of Talksapp Pvt. Ltd., Udyog Bhawan, New Telhi in the office of the Respondent
No. 1 and I am authorised to file the present reply on behalf of the Respondents No.1and do
hereby state on solemn affirmation, as follows :-
1. That I am aware of the facts and circumstances of the case as borne out by records available
and I have been authorized to affirm this petition on behalf of the Respondent No. 1 and I am
otherwise competent to depose to the same.
2. That I have read a copy of the captioned petition. I have understood the purport and contents
of the same. I state that the contents mentioned in the Writ petition filed by the petitioners
therein to the extent are inconsistent with the submissions are incorrect and denied by the
respondents.
I, Archana Sharma Aged 28 years, Bharatham Inhabitant, presently working as the counsel to
Government of Bharatham in the office of the Respondent No. 2 and I am authorised to file
the present reply on behalf of the Respondents No.2 and do hereby state on solemn
affirmation, as follows: -
3. That I am aware of the facts and circumstances of the case as borne out by records available
and I have been authorized to affirm this petition on behalf of the Respondent No. 2 and I am
otherwise competent to depose to the same.
4. That I have read a copy of the captioned petition. I have understood the purport and contents

5
of the same. I state that the contents mentioned in the Writ petition filed by the petitioners
therein to the extent are inconsistent with the submissions are incorrect and denied by the
respondents.

6
 STATEMENT OF FACTS

Background of TalksApp and its acquisition-

TalksApp is a messaging app which was incorporated in the year 2011.ZuckerPunch, a

corporate giant, acquired TalksApp in 2014. ZuckerPunch has always been very clear about
their data protection and privacy policies.

End-to-end encryption used by TalksApp-

One of the notable features of the TalksApp is its advanced cryptography and due to this
speciality, they are getting more users. This feature can be activated by users in a single step
process and as recent as 2016 there was an update which gave all personal chats an end-to-
end encryption, one of the tools of cryptography. End- to-end encryption basically ensures
that only the sender and the receiver can read what has sent, and no one in between, not even
TalksApp.

End-to-end encryption basically means your messages are secured with the key, and only the
recipient and you have the special key pair needed to unlock and read them. For added
protection, every message you send has its own unique lock and key. All of this happens
automatically: no need to turn on settings or set up special secret chats to secure your
messages.

Modification of privacy policy of TalksApp-

On 01.01.2021, TalksApp rolled out its modified version of privacy policy which states “third
party services or other ZuckerPunch company products that are integrated with our Services,
may receive information about what you or others share with them”. The new user policy
basically states how data is impacted when there is interaction with a business on the
platform, and provides more details on integration with ZuckerPunch.

Disclaimer by TalksApp-

Following the unanticipated turn of events, TalksApp sent out a disclaimer which stated that
“Your data is absolutely safe. Not even TalksApp can read your private chats.” This was
further clarified by stating that only business chats are used for the purpose of data sharing.

Current proceeding against TalksApp-

7
 On the similar lines, a PIL was filed by Advocate Kaitanya in the Telhi High Court stating
that the new policy is direct violation of Fundamental Rights and ultra vires the Constitution.
notice in the petition once it understands the concern of the petitioner against the application
and its contentious updated privacy policy.Owing to the huge number of petitions, the
Supreme Court has clubbed it and has taken it up for hearing before a division bench.

PRELIMINARY SUBMISSIONS

1. It is most respectfully submitted that the learned counsel of the petitioners has filed the writ
petition before this Hon’ble Court under Article 32 of the Constitution of Bharatham. The
present public interest litigation filed by the learned counsel of the petitioners is with the
view of enforcing the strict fundamental right to privacy enshrined in the constitution of
Bharatham.
2. It is submitted that the Talksapp Pvt. Ltd. had modified the privacy policies where third party
services such as ZuckerPunch may receive information about the users infringing their
fundamental right to privacy. The new user policy basically states how data is impacted when
there is interaction with a business on the platform, and provides more details on integration
with ZuckerPunch.
3. It is also further submitted that Talksapp was abusing its dominant position in the relevant
market by restricting competition of rival apps and that the Govt. of Bharatham did not have
stringent laws on data privacy in protection of the rights of the citizens.

8
 ISSUES RAISED IN THE WRIT PETITION FILED BY THE LEARNED
COUNSEL OF THE PETITIONERS
1. Whether the Supreme court has the requisite jurisdiction in the present case?
2. Whether the new updated privacy policy of TalksApp is violative of right to privacy under
Article 21 of the Constitution?
3. Whether TalksApp has committed an abuse of dominance?
4. Whether there is a need for introducing new laws for data protection and privacy in the
Republic of Bharatham?

REPLY TO THE ISSUES RAISED IN THE WRIT PETITION FILED BY

THE LEARNED COUNSEL OF THE PETITIONERS
Reply to Issue 1 filed by the learned counsel of the petitioners, presented before this
Hon’ble Court.
1. Whether the supreme court has the requisite jurisdiction in the present case?

The respondent humbly submits before this Hon’ble Court that in relation to the allegations
made by the petitioners in the writ petition in question, the respondent, at the outset, believes
that the petition should be dismissed as it is not maintainable in the Supreme Court because
there has been no violation of the Fundamental Right in the present case. As per Article 32 of
the Indian Constitution, a person can approach the Supreme Court only when there has been a
violation of any of his Fundamental Rights, which is not the scenario in the said case. The
new policy which has been formulated by TalksApp is not ultra vires the constitution which
will be discussed in detail in issue 2.

2.The following case laws have been mentioned in support of our claim –

CASE – Smt. Ujjam bai v State of UP1

In this case , the two questions that were referred to the bench were interconnected and
substantially relate to one subject matter : is the validity of an order made with jurisdiction
under an Act which is Intra Vires and good law in all respects, or of a notification properly
issued thereunder, liable to be questioned in a petition under Article 32 of the Constitution on

1
Smt. Ujjam bai v State of UP AIR 1963 SCR (1) 778

9
the sole ground that the provisions of the Act, or the terms of the notification issued
thereunder, have been misconstrued?

3.The Hon’ble Bench held that no fundamental right is breached and consequently no
question of enforcing a fundamental right arises where a tax is assessed and levied bona fide
by a competent authority under a valid law by following the procedure laid down by that law,
even though it is based upon an erroneous construction of the law except when by the reason
of construction place upon the law a tax is assessed and levied which is beyond the
competence of the legislature or is violative of the provisions of Part III. Thus, Article 32 can
be invoked only when there has been a violation of Fundamental rights and not otherwise.

4.CASE – Gurbachan Singh and Another v. Union of India and Another2

In this case, the question before the Hon’ble court was whether an order passed by the
Supreme court under Article136 of the Indian Constitution can be challenged under Article
32 of the constitution? The Supreme court held that the writ petition challenging the validity
of the order and judgement passed by this court as nullity or otherwise cannot be entertained
under Article 32 as the said article can be invoked only when there has been a violation of
Fundamental rights and not otherwise. However, the petitioner has the right to approach the
Court with an appropriate review petition.

5.CASE – S.K. Mukherjee v. Chemical Allied Products3

In this case, the petitioner was terminated from service without any prior notice and was not
given a chance to hear. Consequently, the petitioner approached the Supreme Court stating
that his fundamental right has been violated. The Hon’ble Supreme Court held that a
“Company” is not a state and that is why fundamental rights cannot be enforced against that
company.

Therefore, the respondent humbly requests this court to dismiss the current writ petition.

Reply to Issue 2 filed by the learned counsel of the petitioners, presented before this
2
Gurbachan Singh and Another v. Union of India and Another AIR 1963 P H 558
3
S.K. Mukherjee v. Chemical Allied Products AIR 1962 Cal 10

10
Hon’ble Court.
6.Whether the new updated privacy policy of TalksApp is violative of the right to
privacy under Article 21 of the Constitution?

The writ petition in question has been taken up for hearing by the Supreme Court after
clubbing the huge number of petitions that were filed in relation to the issue concerning data
protection and privacy of the users of TalksApp. These petitions were filed after the new and
updated privacy policy was released by TalksApp which raised concerns relating to the
privacy of the users. It was alleged by the petitioners that this new privacy policy was
violative of fundamental rights of the citizens as it breached their privacy and confidentiality
by sharing their data with the parent company, ZuckerPunch. In this connection, it is
respectfully submitted that at the outset, the respondent totally denies the allegations put forth
in the writ petition and also submits that it doesn’t violate any fundamental rights of its users
at all because all the personal conversations are protected with the help of advanced
cryptography which is one of the remarkable features of the TalksApp. This feature could
easily be activated by the users but after the new update all the personal conversations of the
users have been given an end-to-end encryption, which is one of the tools of cryptography
used for data protection and privacy. This end-to-end encryption helps in securing the
messages of the users by providing them with a secured code/key, and only the sender and
receiver would be having access to that unique pair of codes needed to unlock their
conversation and read it. This acts as an added protection because every message sent would
be having its own unique key required to unlock it. One of the related features of TalksApp is
that the users are not required to turn on settings or set up anything to activate this feature. It
happens automatically, thus making it more secure. This ensures that no one except for the
sender and receiver of the messages would be able to access it.

7. Therefore, it is humbly submitted that there is no violation of right to privacy of the users
of TalksApp since their conversations are completely secured and not even TalksApp can
access the same. The same was also very specifically mentioned in the new privacy policy
that the personal conversations would not even be accessible to ZuckerPunch. This not only
includes the messages shared via the app, but also other content such as, calls, location,
attachments, photos or videos. The respondent contends that the only changes in the privacy
policy were that relating to the messages between businesses and their customers on
TalksApp. The contention of the company was to enable more and more businesses to

11
prosper via their app by letting them communicate easily and get things done faster as
compared to email and telephonic conversations.

8.The respondent humbly submits before this Hon’ble Court that the right to reputation has
been enshrined under Article 21 of the Constitution of Republic of Bharatham and the
respondent alleges the violation of this right because of the fact that TalksApp has been
facing backlashes from the communities at large. Many human rights activists, technological
experts, lawyers, economists and even the general public have expressed their dismay in
relation to the updated policy. People even started boycotting our app without even
understanding all the aspects of the new update. The new update very specifically mentions
that there are no changes in the end-to-end encryption provided for securing personal
conversations. Even after being such a successful and trusted company, having 2 billion users
worldwide and having a turnover of more than $1 billion dollars, we have been facing issues
relating to our goodwill and reputation which is hampered because of the on-going backlash.

9.D.F. Marion v. Minnie Davis4&Smt. Kiran Bedi v. Committee of Inquiry5, it was held by
the Court that good reputation is protected by the Constitution as enjoyment of life, liberty
and property enshrined under Article 21 of the Constitution. In the case of State of Bihar v.
Lal Krishna Advani6, the Court held that everyone has a right to protect and preserve their
respective reputation. Also, in the case of State of U.P. v. Mohammaad Naim7, the Court had
laid down the guidelines in relation to the dishonouring of a respective person’s reputation.
The Court stated that if that particular person whose reputation is in danger has an
opportunity to defend himself and if there is any conclusive evidence for the remarks that
have been inflicted upon that particular person, then such remarks may be exempted from
such scrutiny but in the writ petition in question, anything that TalksApp had to say went
unheard and there was no conclusive evidence relating to the factors resulting in such
backlash.

10.It is humbly submitted before this Hon’ble court that the Right to privacy which is
enshrined under Article 21 of the Constitution of Republic of Bharatham is not an absolute
right8. The government already sees privacy as a fundamental right, but it is not absolute. It
will be an important balance of equities between individual interests and legitimate concerns
4
D .F. Marion v. Minnie Davis AIR 1960 SC 932
5
Smt. Kiran Bedi v. Committee of Inquiry AIR 1983 SC 109: (1983) 1 SCC 124
6
State of Bihar v. Lal Krishna Advani AIR 2003 SC 3357
7
State of U.P. v. Mohammaad Naim AIR 1964 703: 1964 SCR (2) 363
8
K.S Puttaswamy v. Union of India, AIR (2017) 10 SCC 1

12
of the state. This was also agreed by the Courts in the case of Ritesh Sinha vs. State of Uttar
Pradesh9. It must also be observed that the Courts keeping in mind the importance of public
and individual interests have also stated that privacy shall not be absolute in the case of
government and private agencies which collect any form of data from their respective users.
The Court also found the concept of privacy “too broad and moralistic” for serious judicial
consideration.10 When the question of the difference in laws of Europe and that of Bharatham
are taken into consideration then it must be understood that every country has different set of
laws and so does Europe, where the TalksApp policies must be in consensus to the laws of
their land and the same has been taken care of in Bharatham, any policies which have been
framed by the TalksApp have been framed keeping in mind the laws of the country. It will
not just be binding on the government but also on all private agencies whether Indian
companies or international that collect data in any form 11. The Indian Supreme Court
did not entirely adhere to the hazy shadowy analogy preferring rather, to enumerate
the right to privacy as one of the distinct rights implicit in the right to life and personal liberty
under Article 21 of the Constitution.12

11.It is also respectfully submitted before this Hon’ble Court that the respondent company
has never done anything that could force its users to keep using their app even if they don’t
like certain features or terms and conditions that come attached to it. All its users have always
had an option to switch to alternative apps if they’re not satisfied with the new updated
policy. Therefore, they are free to choose any app and the terms and conditions of TalksApp
do not restrict any of its users to use only this app.

12.In the case of Kharak Singh v. State of Uttar Pradesh & Ors.13, it was held that the right
to be free from any restrictions is also a fundamental right guaranteed under Article 21 of the
Constitution.

13.Hence, as it has been conclusively contended above that there has been no violation of any
of the fundamental rights of the users of TalksApp, the respondent humbly requests this
Hon’ble Court to dismiss the writ petition in question for want of merits.

9
Ritesh Sinha vs. State of Uttar Pradesh (2013) 2 SCC 357
10
R.M Malkani v. State of Maharashtra, AIR (1973) 1 SCC 471
11
K.S Puttaswamy v. Union of India, AIR (2017) SCC 1
12
Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645, 669 [referring, Gobind v. State of M.P. (1975) 2 SCC
148, and Griswold v. Connecticut, 381 US 479 (1965)]
13
Kharak Singh v. State of Uttar Pradesh & Ors AIR 1963 SC 1295

13
Reply to Issue 3 filed by the learned counsel of the petitioners, presented before this
Hon’ble Court.
14.Whether TalksApp has committed an abuse of dominance?

It is humbly submitted before the Hon’ble Bench that a prima facie view is indicative of the
fact that TalksApp is a dominant entity but has not abused its dominance and has therefore
not resorted in any anti-competitive conduct.

15.The Martin Burn case, with special reference to its interpretation of the phrase “prima
facie”, has been validated as recently as 2013 in Nirmala J. Jhala v. State of Gujarat and
Anr.14 where Justice B.S. Chauhan utilized the Martin Burn case in para 26 to articulate the
phrase “prima facie” in order to begin analysis of an impugned section which used the phrase.
Justice S.B. Sinha also utilized the Marin Burn case in para 18 of his judgement in Cholan
Roadways Limited v. G. Thirugnanasambanda 15 to enlighten the reader in matters
concerning the interpretation of the phrase “prima facie”.

16.TalksApp was incorporated in the year 2011 and has been incredibly successful as a
company. From meagre ten thousand users globally in its first year, it stands at 2 billion users
worldwide of which 1.6 billion use it on a weekly basis. The company had an estimated
turnover of $1 billion in 2014. ZuckerPunch, a corporate giant, acquired TalksApp in 2014.
The parent company is a social networking giant and arguably the most successful company
in this sector. ZuckerPunch also owns another app which is an online photo sharing and
social networking platform. The trio of these apps makes ZuckerPunch undisputedly the big
fish in the social networking market.

17.As per Section4 of the Competition Act, 2002 an abuse of dominant position by an
enterprise in dominant position performs any of the following acts:

1. directly or indirectly, imposes unfair or discriminatory practices

In M/s Fast Track Call Cab Private Limited v. M/s ANI Technologies Pvt. Ltd. 16, the “CCI
was of the prima facie view that predatory pricing, providing more incentives and discounts
to customers and drivers compared to the revenue earned resulted in ousting the existing

14
Nirmala J. Jhala v. State of Gujarat and Anr., AIR 2013 SC 1513.
15
Cholan Roadways Limited v. G. Thirugnanasambanda, AIR 2005 SC 570.
16
M/s Fast Track Call Cab Private Limited v. M/s ANI Technologies Pvt. Ltd (03.09.2015 -
CCI) : MANU/CO/0072/2015

14
players out of the market and created entry barriers for the potential players against
provisions of Section 4 of the Act. Moreover, the quantity of resources and the dependence of
the consumer in the relevant market with no substitute are relevant factors to be taken into
consideration when looking for acts in violation of Section 4.”

TalksApp has not directly or indirectly imposed unfair or discriminatory practices on the
other competitors and has therefore not constituted an abuse of dominant position.

2. limits or restricts production of goods or provision of any services in any form

Talksapp has not restricted their services or imposed any limits with the introduction of the
competing app in the market.

3. indulges in practice or practices resulting in denial of market access

In the case of Jupiter Gaming Solutions Private Limited vs. Government of Goa and Ors. 17,
the CCI while determining alleged abuse of dominance by the Government of Goa stated that
dominance per se is not bad in Competition Law in India. The CCI held that the Government
of Goa by imposing such conditions abused its dominant position of denial/restriction of
market access to the other parties in the relevant market. Talk App is not abusing its
dominant position by entering into the relevant market and excluding its competitor app from
the relevant market.

Talksapp has neither denied market access to it competitor’s app or indulged in any sort of
anti-competitive behaviour

4. makes conclusion of contracts subject to acceptance by other parties of

supplementary obligations which have no connection with the subject of such
contracts; or

M/s. Financial Software and System Private Limited v. M/s. ACI Worldwide Solutions
Private Limited &Ors.18,based on a preliminary review of the clauses of the relevant
agreement and its impact in terms of Section 3 of the Act, the Commission directed the DG to
investigate further.

17
Jupiter Gaming Solutions Private Limited vs. Government of Goa and Ors., (12.05.2011 - CCI) :
MANU/CO/0017/2011
18
M/s. Financial Software and System Private Limited v. M/s. ACI Worldwide Solutions Private Limited &Ors
(08.11.2011 - MADHC) : MANU/TN/4332/2011

15
18.TalksApp is further not abusing its dominant position by accepting obligations on
agreements or contracts with the competitor’s app.

5. uses its dominant position in one relevant market to enter into, or protect, other
relevant market

M/s Saint Gobain Glass India Ltd. v. M/s Gujarat Gas Company Limited 19- In this case, the
CCI in order to determine the ‘relevant market’ took note of factors to be considered while
determining the relevant product market and the relevant geographic market.

19.Further it is stated that TalksApp isn’t abusing its dominant position in the relevant market
and it is submitted before this Hon’ble court that present writ petition filed by the learned
counsel of the petitioners be dismissed.

Reply to Issue 4 filed by the learned counsel of the petitioners, presented before this
Hon’ble Court.
20.Whether there is a need for introducing new laws for data protection and privacy in
the Republic of Bharatham?

It is humbly submitted before this Hon’ble Court that even though there are no specific laws
or enactments relating to data protection or privacy in the Republic of Bharatham, this
doesn’t nullify the already existing laws in different statutes protecting the privacy of citizens
and preventing any kind of breach of confidentiality pertaining to any data of the citizens,
whether sensitive personal data or not. As opposed to the contention of the petitioners
expressing the inadequacy of Information Technology law pertaining to breach of
confidentiality and privacy, the respondent believes that the existing provisions of the
Information Technology law are enough and very well effective in protecting the privacy of
the citizens and therefore, there shouldn’t arise a necessity for formulating any new laws or
policies.

21.It is also submitted that the Republic of Bharatham is a party to International organisations
such as the Universal Declaration of Human Rights and the International Covenant on Civil
and Political Rights, which recognise the right to privacy. Bharatham legislature did amend
the Information Technology Act, 2000 to include Section 43A and Section 72A, which give
a right to compensation for improper disclosure of personal information. Bharatham central
19
M/s Saint Gobain Glass India Ltd. v. M/s Gujarat Gas Company Limited SCC OnLine CCI 38 :
[2013] CCI 49

16
government subsequently issued the Information Technology (Reasonable Security Practices
and Procedures and Sensitive Personal Data or Information) Rules, 2011 under Section 43A
of the IT Act. The Rules have imposed additional requirements on commercial and business
entities in India relating to the collection and disclosure of sensitive personal data or
information which have some similarities with the GDPR 20 and the Data Protection
Directive21.

22.The relevant provisions of the IT Act that are in line with data protection and privacy have
been highlighted as under:

Section 43A – Compensation for failure to protect data

“Where a body corporate, possessing, dealing or handling any sensitive personal data or
information in a computer resource which it owns, controls or operates, is negligent in
implementing and maintaining reasonable security practices and procedures and thereby
causes wrongful loss or wrongful gain to any person, such body corporate shall be liable to
pay damages by way of compensation to the person so affected.” 22 This section mandates all
body corporates to maintain “reasonable security practices and procedure” in case their
business relates to dealing in or possessing sensitive personal data of citizens or their users. In
case of non-fulfilment of this obligation on part of any body corporate leading to failure of
protection of data and breach of privacy, this section also provides for compensation to be
given to the affected persons by such body corporate.

Section 72 – Penalty for breach of confidentiality and privacy

“Save as otherwise provided in this Act or any other law for the time being in force, if any
person who, in pursuance of any of the powers conferred under this Act, rules or regulations
made thereunder, has secured access to any electronic record, book, register, correspondence,
information, document or other material without the consent of the person concerned
discloses such electronic record, book, register, correspondence, information, document or
other material to any other person shall be punished with imprisonment for a term which may
extend to two years, or with fine which may extend to one lakh rupees, or with both.”23

Section 72A – Punishment for disclosure of information in breach of lawful contract

20
(EU) 2016/679) (“GDPR”)
21
Ibid
22
Section 43A of The Information Technology Act, 2000
23
Section 72 of The Information Technology Act, 2000

17
“Save as otherwise provided in this Act or any other law for the time being in force, any
person including an intermediary who, while providing services under the terms of lawful
contract, has secured access to any material containing personal information about another
person, with the intent to cause or knowing that he is likely to cause wrongful loss or
wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful
contract, such material to any other person, shall be punished with imprisonment for a term
which may extend to three years, or with fine which may extend to five lakh rupees, or with
both.”24

23.It is also respectfully submitted before this Hon’ble Court that in the case of Sharat Babu
Digumarti v. Govt. of NCT of Delhi25, it was held by the Supreme Court that any case which
deals with offences pertaining to electronic medium shall be dealt by the special law that is
the Information Technology Act, 2000. This clearly suggests that even the apex court of the
country doesn’t find the need for formulating any new laws or policies specifically for data
protection and privacy.

24.In District Registrar and Collector v. Canara Bank26, the Supreme Court opined that the
“disclosure of the contents of the private documents of its customers or copies of such private
documents, by the bank would amount to a breach of confidentiality and would, therefore, be
violative of privacy rights of its customers.”

25.Personal data is protected through indirect safeguards developed by the courts under
common law, principles of equity and the law of breach of confidence. In the landmark
judgment delivered in Justice K.S Puttaswami & another Vs. Union of India 27, the Supreme
Court of India has recognised the right to privacy as a fundamental right under Article 21 of
the Constitution as a part of the right to life and personal liberty. Informational privacy has
been recognised as being a facet of the right to privacy and the court held that information
about a person and the right to access that information also needs to be given the protection
of privacy.

26.The Republic of Bharatham also initiated introducing the draft bill on personal data
protection which  provides for protection of the privacy of individuals relating to their
personal data, specifies the flow and usage of personal data, creates a relationship of trust
24
Section 72A of The Information Technology Act, 2000
25
2016 SCC OnLine SC 1464
26
AIR 2005 SC 186: (2005) 1 SCC 496
27
AIR 2017 SCC 1

18
between persons and entities processing the personal data, protecting the rights of individuals
whose personal data are processed in order to create a framework for organisational and
technical measures in processing of data, laying down norms for social media intermediary,
cross border transfer, accountability of entities processing such personal data. The Bill also
seeks to provide remedies for unauthorised and harmful processing, and to establish a Data
Protection Authority of Bharatham for the said purposes.The underlying principles of the Bill
are broadly similar to those in the General Data Protection Regulation28. 

27.Further, it is stated that the Republic of Bharatham has clearly upheld the laws of the
country by protecting the citizens of their fundamental rights and ensuring their privacy.
Thus, the intention of the judiciary makes it very clear that the already existing provisions of
the IT Act, 2000 are adequate enough and effective at the same time. The respondent,
therefore, humbly submits before this Hon’ble Court that there arises no need for introduction
of new laws or policies for data protection and privacy and even the current matter pertaining
to TalksApp can be easily dealt with, with the application of IT Act, 2000, in case there need
be, for dealing with privacy-related concerns.

PRAYER

Wherefore, in the light of facts stated, legal pleadings and authorities cited, the Republic of
Bharatham and TalksApp Pvt. Ltd. most humbly and respectfully prays before this Hon’ble
Court to adjudge and hold that:
1. Hold that, the conduct of TalksApp does not violate the fundamental right to privacy
enshrined under Article 21 of the constitution of Bharatham.
2. Hold that, TalksApp is not abusing its dominant position in the relevant market and not
restricting competition of its rival apps.
3. Declare that, Govt. of Bharatham has upheld the laws and protected the rights of its
citizens with its current legislation on data privacy.
AND/OR

May render any such other order, discretion & judgment this Hon’ble court may deem
fit in the interest of justice, equity and good conscience

All of which is respectfully submitted Sd/-

28
(EU) 2016/679) (“GDPR”)

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 IN THE SUPREME COURT OF BHARATHAM, NEW TELHI

WRIT PETITION (CIVIL) No.5590 OF 2021

IN THE MATTER OF PUBLIC INTEREST LITIGATION

KAITANYA & OTHERS…. PETITIONERS

Versus

TALKSAPP PVT. LTD.

REPUBLIC OF BHARATHAM …. RESPONDENTS

MEMORANDUM OF APPEARANCE

In the above-mentioned case, kindly enter my appearance on behalf of

THROUGH

AMIT MAHAJAN

CENTRAL GOVERNMENT STANDING COUNSEL 461, LAWYERS

CHAMBERS, TELHI I-II: -1 SUPREME COURT NEW TELHI-I I 0024

ENO.D/499/ 19
PH: 011-23381256, (M) 9811191920

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