DLS Petitioner

The Directorate of Legal Studies, Tamilnadu, Inter-Collegiate Level Moot Court
THE DIRECTORATE OF LEGAL STUDIES TAMIL NADU, INTER-COLLEGIATE

LEVEL MOOT COURT
TEAM CODE:
BEFORE THE HON’BLE SUPREME COURT OF

SINDHIANA
ORIGINAL WRIT JURISDICTION

(PUBLIC INTEREST LITIGATION)
WRIT PETITION NO.______ OF 2021
UNDER ARTICLE 32 OF THE CONSTITUTION OF SINDHIANA
THE PEOPLE FOUNDATION ON INTERNET PRIVACY ……PETITIONER
VS.
UNION OF SINDHIANA ........ RESPONDENT
MEMORIAL ON BEHALF OF THE PETITIONER
Submission on behalf of the PETITIONER 1

TABLE OF CONTENTS
S.NO TABLE OF CONTENTS PAGE NO
1 INDEX OF AUTHORITIES 3
2 STATEMENT OF JURISDICTION 7
3 STATEMENT OF THE FACT 8
4 ISSUES RAISED 9
5 SUMMARY OF ARGUMENTS 10
6 ARGUMENTS ADVANCED 11
7 PRAYER 29

INDEX OF AUTHORITIES
1. PUCL v. Union of India………………………………………………………………11

2. K.S Puttaswamy vs Union of India ……………………………………………..….…13
3. Anivar Aravind v. Ministry of Home Affairs & ors…………………………….……15
4. People's Union for Democratic Rights v. UOI…………………………………….…15
5. Environment Legal Action, v. UOI…………………………………………………..16
6. Dharmendra Kirthal v.State of U.P………………………………………..…………17
7. Sahara India Real Estate Corp.Ltd v. SEBI………………………………………...…17
8. Om Kumar v. Union of India………...……………………………………………….19
9. R. Rajagopal Alias R.R. Gopal and Another v. State of T.N. and others…………….20
10. Basheshar Nath v Commissioner of Income Tax……….…………………………….20
11. Meyer v. Nebraska………………………………………………………………..…..20
12. Frankfurter J., in Wolf v. Colorado………………………………………………...…21
13. United States v Miller……….......................................................................................21
14. Shirin RK v. State of Kerala………………………………………………………......23
15. Binoy Vishwan v. Union of India…………………………………………………….24
16. UIDAI v. CBI…………………………………………………………………...……25
17. R. C. Cooper v. Union of India…………………………………………………..……25
18. Ram Jethmalani v Union of India……………………………………………………..25
19. Kharak Singh v. State of UP…………………………………………………………..26
20. R.P. Ltd. v. Indian Express Newspaper………………………………………………26
21. Katz v. United States…………………………………………………………...……..26
22. Naz Foundation vs Government Of Nct Of Delhi……………………………….……27
23. CIT v Hindustan Bulk Carriers………………………………………………...…….28
24. Sultana Begum vs Prem Chand Jain…………………………………………………..28

STATUTES
1 Information Technology Act, 2000
2 Disaster Management Act, 2005
3 Indian Penal Code, 1860
4 Aadhar Act, 2016
5 The Constitution of India, 1950
BOOKS REFERRED
1 M P Jain, Indian Constitutional Law, Eighth Edition.
2 Mamta Rao, PUBLIC INTEREST LITIGATION, Legal Aid

and Lok Adalat (3ª ed.))
3 Durga Das Basu, Commentary On The Constitution Of India

(8th ed.) (Volume-2,4,8,10)
4 Samaraditya Pal, India's Constitution - Origins & Evolution

(volume-2)
5 Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed.

(2011)

TREATIES
1 International Covenant on Civil and Political Rights
2 Universal Declaration of Human Rights
3 European Convention on Human Rights
LEXICONS
1 Garner Bryana, Black's law Dictionary, 7th Edn.1981, West

Group.
2 Collins Gem English Thesaurus, 8th Edn. 2016, Collins
3 Catherine Sounes, Oxford Dictionary Thesaurus. 40th Edn. 2006,

Oxford University Press

LIST OF ABBREVIATIONS
S.NO ABBREVIATIONS EXPANSION
1 AD APEX DECISION
2 AIR ALL INDIA REPORT
3 AIHC ALL INDIA HIGH COURT CASE
4 ART ARTICLE
5 CBI CENTRAL BUREAU OF INVESTIGATION
6 CONS CONSTITUTION
7 Cri LJ CRIMINAL LAW JOURNAL
8 Cr.P.C CRIMINAL PROCEDURE CODE
9 HC HIGH COURT
10 HCC HIGH COURT CASE
11 IPC INDIAN PENAL CODE
12 NGO NON GOVERNMENTAL ORGANIZATION
13 SC SUPREME COURT
14 SCC SUPREME COURT CASE
15 U/S UNDER SECTION
16 UOI UNION OF INDIA
17 WHO WORLD HEALTH ORGANIZATION
18 & AND
19 % PERCENTAGE

STATEMENTS OF JURISDICTION
The Hon'ble Supreme Court of Sindhiana has the jurisdiction in this matter under Article 32
of the Constitution of Sindhiana which reads as follows:
32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed,
(2) The Supreme Court shall have power 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 by this Part.
This Memorandum sets forth the facts, laws and the corresponding arguments on which the
claims are based on the instant case. The Petitioner affirm that they shall accept any Judgement
of this Hon’ble Court as final and binding upon itself and shall execute it in its entirety and in
good faith.

STATEMENT OF FACTS
SINDHIANA'S PROFILE:
The Republic of Sindhiana, being the second most populous country in the world, leads the
developing nations in terms of technological advancement. The citizens of Sindhiana are well
versed with the technology and different applications available in the tech-market. The
Government and the judiciary of the democratic country have been curtailing certain rights on
the usage of the internet and at times the freedom of speech and expression were upheld.
NOVEL DISEASE AND SOWKIYA APP:

In the month of December 2019, there was a sudden outbreak of a novel coronavirus in the
province of Chuhan in the neighbouring state. The virus had spread across the nations within a
span of two to three months. The Central Government of Sindhiana declared a complete
lockdown from the month of March, 2020. To trace the spread of the virus and to isolate the
people who were in personal contact with the infected, the Central Government set up an
application known as the “Sowkiya App” available in android and other online platforms. Even
after the complete lockdown was lifted, the Central Government directed all the State
Government authorities to make it mandatory for the people of Sindhiana to download the
application.
SOWKIYA APP AND PRIVACY:

The Sowkiya app requires the user to always enable GPS (location) and Bluetooth. Again, a
person’s location and movement, user privacy gets compromised by keeping the GPS and
Bluetooth switched on. Other than the two major challenges, there were doubts raised by
information security experts on the lifespan of the app, its data management protocols, user
confidentiality, the absence of a viable mechanism to address data breach violations and an in-
built “No liability” clause protecting the app developers.
The app collects a significant amount of personal data such as: name, phone number, age,
sex, profession, countries visited in the last 30 days, user’s lifestyle and habits. Around 9
NGO’s and 150 individuals raised the issue along with the infringement of “right to privacy”
to the Central Government of Sindhiana. One of the NGO’s, “The People Foundation on
Internet Privacy” filed a PIL before the Hon’ble Supreme Court of Sindhiana.

ISSUES RAISED
WHETHER THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE.

WHETHER THE NGO CAN INVOKE THE RIGHT TO APPROACH THE
SUPREME COURT UNDER ARTICLE 32 FOR THE VIOLATION OF
FUNDAMENTAL RIGHT ?
II
WHETHER THE USAGE OF THE SOWKIYA APP WHICH REQUIRES THE

USERS TO ENABLE GPS AND BLUETOOTH AFFECT THE PRIVACY RIGHTS
AND LIBERTY OF THE CITIZENS. ?
III
WHETHER THE ‘RIGHT TO HEALTH’ IS PARAMOUNT WHEN COMPARED TO

THE ‘RIGHT TO PRIVACY’ ?

SUMMARY OF ARGUMENTS
1. WHETHER THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE.

FUNDAMENTAL RIGHT ?
The counsel for the Petitioner humbly submits that the Public Interest Litigation is
maintainable and the NGO can invoke the right to approach the Supreme Court under
article 32 for the violation of the fundamental rights. It is contended that the right to
privacy is a fundamental right under Article 21 of the Indian constitution, the violation
of which by the respondent has mandated the petitioner to file this Public Interest
Litigation.
2. WHETHER THE USAGE OF THE SOWKIYA APP WHICH REQUIRES THE

USERS TO ENABLE GPS AND BLUETOOTH AFFECT THE PRIVACY
RIGHTS AND LIBERTY OF THE CITIZENS?
The counsel for the Petitioner humbly submits that the usage of the Sowkiya app which
requires the users to enable GPS and Bluetooth affect the privacy rights and liberty of
the citizens. Mandating the app's use would require a legal statute that satisfies the triple
test. Since there is no law backing the Sowkiya app, making it mandatory would be
violating the right to privacy.
3. WHETHER THE ‘RIGHT TO HEALTH’ IS PARAMOUNT WHEN

COMPARED TO THE ‘RIGHT TO PRIVACY’ ?
The counsel for the Petitioner humbly submits that the right to privacy is equally
important to the Right to Health. It is further contended that the Right to heath is
paramount when compared to the Right to Privacy only when it passes the test of
reasonableness & proportionality under Art 21 and as far as this case is concerned that
is not passed. It is also humbly submitted that the Right to Health must be harmoniously
construed with Right to Privacy.

ARGUMENTS ADVANCED
1. WHETHER THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE.

FUNDAMENTAL RIGHT ?
The counsel for the Petitioner humbly submits that the Public Interest Litigation is maintainable
and the NGO can invoke the right to approach the Supreme Court under article 32 1 for the
violation of the fundamental rights. It is contended that the right to privacy is a fundamental
right under Article 21 of the Indian constitution2, the violation of which by the respondent has
mandated the petitioner to file this Public Interest Litigation.
1.1 THAT THERE IS A VIOLATION OF FUNDAMENTAL RIGHTS IN THE PUBLIC

INTEREST.
1. It is humbly submitted that the respondent declared a complete lockdown as a measure

to contain the spread of the virus and pursuant to the object the Central Government set
up an application known as the "Sowkiya App". The purpose of the app is to trace the
spread of the virus and to isolate the people who were in personal contact with an
infected person3.
2. It is contended that even after the complete lockdown was lifted the Central
Government directed all the state government authorities to make it mandatory for the
people of Sindhiana to download the application.
1
Art. 32 of the Indian Constitution, 1950.
2
Art. 21 of the Indian Constitution, 1950.
3
Moot Proposition.

3. The entry to the government organizations, public transport, private corporate

establishment, shopping malls, Cinema halls ect., required the citizens to show the
installed "Sowkiya App" to the security at the entrance. It is contented that mandatory
installation of the application is against the right to privacy of the Petitioner and the
public at large.
It is further contended that the lifespan of the app, its data management protocols, user
confidentiality, the absence of a viable mechanism to address data breach violations and an
In-Build “No Liability Clause” protecting the app developers, are not clarified by the
Respondent who seeks the mandatory installation of this application.
1.2 THERE IS A BREACH OF FUNDAMENTAL RIGHTS OF PUBLIC AT LARGE,

BY THE RESPONDENT:
4. It is humbly submitted that the Right to Privacy shall be curtailed as a preventive

measure only in accordance with the law and that must be fair, just and reasonable. The
Central Government has used the residuary powers under Section 6 of the Disaster
Management Act, 20054 and the state authorities have derived their powers from section
2(1), of the Epidemic Diseases Act, 18975.
5. It is contended that this Hon'ble Court in the case of "PUCL v. Union of India6", has
held that the Right to Privacy is a part of Right to Life and Personal Liberty enshrined
under Article 21 of the Constitution and such rights cannot be curtailed except
according to the procedure established by law which has to be just fair and reasonable.
4
Section 6 of the Disaster Management Act, 2005
5
Section 2(1) Epidemic Diseases Act, 1897.
6
(1997) 1 SCC 301

6. It is further contended that the same has been reiterated by this Hon'ble Court, in
K.S Puttaswamy vs Union of India7,
● That the violation of the privacy with regard to arbitrary State action would be
subjected to the reasonableness test under article 14.
● Intrusion of one's life and personal liberty under article 21 will attract just, fair
and reasonable threshold”.
● The Public Emergency invoked by the Central Government is insufficient for
breach of Right to Privacy.
7. It has humbly submitted that the respondents have invoked "public emergency" and the
"Interests of Public Safety" under Sec 5(1) of the Information technology Act8, to color
the infringement of violation of right to privacy, referring to the pandemic.
8. It is humbly submitted that the application is against the principles laid down in the
Guidelines for Ethical Consideration for the Use of Digital Proximity Tracking
Technology for Covid-19 Contact Tracing9.
9. It is humbly submitted that the World Health Organization (WHO), came up with
interim guidelines for Ethical Consideration Using of Digital Proximity Tracking
Technologies for Covid-19 Contact Tracing10. It is contended that the principles laid
down in the guidelines are not followed by the Sowkiya App, which makes the measure
of the government unreasonable, unjust & unfair.
7
(2019) 1 SCC 1
8
Sec 5(1) of the Information Technology Act, 2000.
9
https://corporate.cyrilamarchandblogs.com
10
https://www.who.int

1.2.1 TIME LIMITATIONS:
10. It is contended that the guidelines obligated the Sunset clause, mandating the usage of
the collected information shall be maintained only to address the current pandemic. The
uncertainty in the policy of the application has raised suspicion among the Information
Security Experts that the absence of a sunset Clause will entail the government to use
the information collected beyond its object.
1.2.2 VOLUNTARINESS
11. Another principle laid down by the World Health Organization is voluntariness, that
the government shall not mandate the use of such application and no individual should
be denied services or benefits from either a government or private parties for refusing
to use an application including the right to use Health Services. This has not been
compiled as the Respondents directed all State Governments to make it mandatory for
the people of Sindhiana to install the application.
12. That the respondents cannot contend that the absence of a sunset Clause is due to the
fact that it is not possible to determine when shall the object will be completely fulfilled
ask depends upon the spreading of the pandemic, because there is an absence of
independent oversight authority who must ensure that any use of digital proximity
tracking applications by the government is firewalled from other government functions.
1.2.3 TRANSPARENCY AND ACCOUNTABILITY:
13. It is evident from the fact that the data management protocols and user confidentiality
and the absence of a viable mechanism to address data breach violations and an in-built
No-Liability clause, entails a lack of transparency and accountability.
Thus the High Court's order considering the situation of Public emergency is not followed by
the Respondents.

14. It is humbly submitted that be Karnataka High Court11 passed an interim order against
such a digital proximity tracing technology application, accepting the Central
Government's assurance that the installation of the application shall not be made
mandatory the informed consent of the users shall be taken for the implementation of
protocols related to the privacy of the application.
It is humbly submitted that the non-compliance of the assurance by the respondents are against
the law procedure established by law and an infringement of Article 21, and the right to privacy
of the petitioner and the public at large.
1.3 THAT THE NGO CAN INVOKE THE RIGHT TO APPROACH SC UNDER ART
32 FOR THE VIOLATIONS OF THE FUNDAMENTAL RIGHTS.
15. It is humbly submitted that the Public Interest Litigation is a legal action initiated in a
court of law for the enforcement of public interest or generally invest in which the
public or class of community help a community interest or some interest but you did
legal rights or liabilities are affected12
16. It is humbly submitted that the petitioner in this case is a registered Non-Governmental
Organization, striving to protect the privacy rights of the public. It is contended that
the objective of the organization as its name suggested is to protect the internet privacy
all of the people
17. It is humbly submitted that the Hon'ble Court in the case of People's Union for
Democratic Rights v. UOI13, held that the public-spirited citizens can enforce the
Constitutional and legal rights of any person or group of persons who are unable to
approach court for relief.
11
WRIT PETITION NO.7483 OF 2020
12
https://ngosindia.com/ngo-resources/public-interest-litigation/
13
1982 AIR 1473, 1983 SCR (1) 456

18. It is humbly submitted that this hon'ble Court in the case of Council for Environment
Legal Action, v. UOI14 , issued appropriate orders and directions for enforcing the laws
to protect the ecology and it was the public interest litigation filed by a registered
voluntary organization.
From the above submission the counsel for the Petitioner humbly submits that the NGO (the
petitioner herein) has sufficient cause to file the Public Interest Litigation and the Supreme
Court of Sindhiana also has jurisdiction under Article 32 of the Sindhiana Constitution.
14
1996 AIR 1446

2. WHETHER THE USAGE OF THE SOWKIYA APP WHICH REQUIRES THE

USERS TO ENABLE GPS AND BLUETOOTH AFFECT THE PRIVACY RIGHTS
AND LIBERTY OF THE CITIZENS. ?
The counsel for the Petitioner humbly submits that the usage of the Sowkiya app which requires
the users to enable GPS and Bluetooth affect the privacy rights and liberty of the citizens.
Mandating the app's use would require a legal statute that satisfies the triple test. Since there is
no law backing the Sowkiya app, making it mandatory would be violating the right to privacy.
2.1. BURDEN OF PROOF WHILE CHALLENGING THE CONSTITUTIONAL

VALIDITY OF SOWKIYA APP IN PUBLIC INTEREST LITIGATIONS:
19. Burden of proof/presumption of constitutionality of the statute is on him who

challenges it to show that there has been a clear transgression of constitutional
principles as there is always a presumption in favour of the constitutionality of an
enactment as held in Dharmendra Kirthal v.State of U.P.15 Even though in this public
interest litigation even though the petitioner challenges the application that is mandated
by the government, they cannot resort to the immunity in this case. The petitioner
strongly agrees with the points of the burden of the proof in respect of us. It is duty for
the petitioner, in this kind of necessary petition and imposition of the strict conditions
in respect to that. Hence, the petitioner herein submission regarding the privacy and the
safeguard of the fundamental rights as follows before this Hon’ble Supreme court.
20. One right does not override the other. No single right taken individually is absolute. In
Sahara India Real Estate Corp. Ltd v SEBI the court held that, Court’s duty is to
strike a proper balance in a given situation where one right competes with other16
15
(2013) 8 SCC 368
16
(2012) 10 SC 603

21. Privacy has both positive and negative content. Negative content restrains the state from
committing an intrusion upon the life and personal liberty of a citizen. Its positive
content imposes an obligation on the state to take all necessary measures to protect the
privacy of the individual17. At the same time, data protection and data safety is also to
be ensured to avoid even the remote possibility of data profiling or data leakage.
2.2 MANDATING THE USE OF APP IS VIOLATING THE RIGHT TO PRIVACY:
22. The counsel for the Petitioner most humbly submits that mandating the app's use would
require a legal statute that satisfies the triple test. Since there is no law backing the
Sowkiya app, making it mandatory would be violating the right to privacy [1]. Sowkiya
Application collects the personal data of a person including his health-related data,
name, phone number, age, sex, etc. It is also mandatory for switching on Bluetooth and
Location of a person which means there is constant surveillance on a person [2].
23. Sowkiya Application is a contact tracking application which the central government
has developed and is being mandatorily directed by the respondent to be installed in all
smartphones. In clause 16 of the guidelines as per MHA Order no. 01/05/2020-DM-
I(A), it is specifically stated as follows
"any person violating these lockdown measures and the National Directives for
COVID-19 Management will be liable to be proceeded against as per the provision of
Section 51 to 60 of the Disaster Management Act, 2005, besides legal action under
S.188 of Indian Penal Code and other legal provisions as applicable18".
24. Since there is no law backing Sowkiya App, making it mandatory would be illegal. The
mandatory imposing of this app indulges with the right to exercise their choice or right
to be let alone and right to consent under Article 21 and 19 (a) of the Constitution of
Sindiana.
17
K.S. Puttaswamy v Union of India, (2019) 1 SCC 1
18
Clause 16 of the guidelines as per MHA Order no. 01/05/2020-DM-I(A).

25. This violates the right to privacy of a person enshrined under Article 21 of the
Constitution of Sindiana as reasonable restrictions on a person's right to life cannot take
away right to consent declared by the Hon'ble Supreme Court of India19.
26. When two registered users come within the Bluetooth range of each other, their apps
will automatically exchange DiDs and record the time and GPS location at which the
contact took place. It humbly submitted that there is "No Sunset Clause" for the data
collected. The sunset clause provides that unless specifically extended by the
Empowered Group on account of the continuation of COVID-19 pandemic in India, the
said protocol will be in force for six months from the date on which it was issued. Even
though the app is silent about where the data will be stored and how long the data will
be stored and how long the data will be maintained, and ambiguous is who will access
to this data.
27. The Doctrine of Proportionality is of European origin.

"The principle of proportionality envisages that an administrative action could be
quashed if it was disproportionate to the mischief at which it was aimed."
The measures adopted by the Administration must be proportionate to the pursued objective.
This is especially important because no detailed and credible evaluation of its efficacy is as yet
publicly available. Public applications definitely need to be more transparent in their design
28. In India the doctrine of proportionality was adopted by the Supreme Court of India in
the case of Om Kumar v. Union of India20. In this case the Apex court observed that
Indian courts have been using this doctrine since 1950, in cases of legislations violating
fundamental rights enshrined in Article 19(1) of the constitution.
19
K.S.Puttaswamy v. Union of India
20
AIR 2000 SC 3689.

2.3 FUNDAMENTAL RIGHTS CANNOT BE WAIVED:
29. It is humbly submitted that tracking a covid 19 patient or any one who is infected with
these types of disease doesn't make any pavement for the government to reduce the risk
of the virus or that it cannot be dealt with as a measure to reduce the spread of virus.
Instead of curbing the virus the government has in turn curbed the freedom and privacy
of each and every citizen and also collection of so much data will lead to other
dangerous forms of cyber attack.
30. In the case of "Basheshar Nath v Commissioner of Income Tax21 '' Hon'ble Supreme
court observed that the fundamental rights of the citizens cannot be waived, the strain
of the essential and the necessity or even in the case of the emergency.
31. The counsel for the petitioner humbly submits that a law forbidding use of
contraceptives has been invalidated as invading the right of privacy and a penumbral
right emanating from the various amendments22. The U.S. The Supreme Court is
endeavouring to derive from "liberty" a constitutional protection for privacy, personal
autonomy and some family relationships. As the court had said in Meyer v. Nebraska23,
the liberty protected by due process.
"......denotes not merely freedom from bodily restraint, but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship God according to the dictates of
his own conscience, and, generally, to enjoy those privileges long recognized at common law
as essential to the orderly pursuit of happiness by freemen….."
21
1959 AIR 149, 1959 SCR Supl. (1) 528
22
Griswold v. Connecticut, 381 U.S. 479 (1965)
23
262 U.S. 390 (1923)

32. In the case of Frankfurter J., in Wolf v. Colorado24, it was pointing out the importance
of the security of one's privacy against arbitrary intrusion by the police, could have no
less application to an Sindhianan home as to an American one. If physical restraints on
a person's movements affect his personal liberty, physical encroachments on his private
life would affect it to a larger degree. Indeed, nothing is more deleterious to a man's
physical happiness and health than a calculated interference with his privacy.
33. We would, therefore, define the right of personal liberty in Article 21 as a right of an
individual to be free from restrictions or encroachments on his person, whether those
restrictions or encroachments are directly imposed or indirectly brought about by
calculated measures. If so understood, all the acts of surveillance under
Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the
Constitution.
2.4. STATE HAS AFFIRMATIVE DUTY TO PROTECT INDIVIDUAL DATA:
34. The judgment delivered by Justice Sopinka relied on a part of the United States v
Miller25 decision, that in order to be constitutionally protected the information must be
of a “personal and confidential” nature and held that:
“In fostering the underlying values of dignity, integrity and autonomy, it is fitting that
Section 8 of the Charter should seek to protect a biographical core of personal information
which individuals in a free and democratic society would wish to maintain and control from
dissemination to the state. This would include information which tends to reveal intimate
details of the lifestyle and personal choices of the individual.”
24
338 U.S. 25 (1949)
25
425 US 435 (1976)

35. Justice Kaul once very clearly brings this out by mentioning,
"…the state must ensure that information is not used without the consent of users and that it
is used for the purpose and to the extent it was disclosed26".
A joint reading of this would give the following preposition “consent is not a one-time waiver
of your right to control your personal information, but must extend to each and every distinct
and specific use of that information, even after you have consented to the State collecting it
from you.27
2.5 JUSTICE BN SRIKRISHNA COMMITTEE ON THE DATA PRIVACY ON

INDIVIDUAL AFTER TECHNOLOGY IMPROVEMENT:
36. The extent to which the right to privacy is critical for the protection of democracy
cannot be overemphasised. To achieve this, the State has to enact laws to regulate data
management practices of entities. The Srikrishna Committee28 has been given the
unenviable task of formulating the rules for data protection in Sindhiana.
37. The committee has to frame a scheme to mitigate the harms caused due to
indiscriminate collection of data. It will have to, for example, set limits on the amount
of information an entity has to collect from its users or at the very least provide the
method through which the data has to be collected. "It may also have to the extent to
which even that collected data can be used/processed".
26
KS Puttaswamy (n 13) [637] (Kaul J)
27
Gautam Bhatia, ‘Privacy, Informational Self-Determination, and the Idea of Consent’ (n16)
28
A Free and Fair Digital Economy, Protecting Privacy, Empowering Indians Committee of
Experts under the Chairmanship of Justice B.N. Srikrishna

38. The first successful challenge based on the right to privacy occurred in the case of
Shirin RK v. State of Kerala29. The Court held that a university’s rule to restrict the use
of mobile phones within its hostel from 10:00 pm to 6:00 am and then from 6pm to
10pm violated students’ right to privacy. Likewise 24/7 surveillancing the citizens
through Sowkiya App is infringing the right to privacy and liberty to enjoy their life.
The Information Technology Act lacked legal and procedural safeguards to preserve
the integrity of its citizens’ personal information. It is no secret that India lacks a general
culture of privacy.
39. The counsel for the Petitioner argues that the entire procedure right from the stage of
registration of an individual on the Sowkiya app and submitted that as can be seen from
the Sowkiya app itself, it is evident that the personal data such as location details, name,
phone number, age, sex, occupation/profession, countries recently visited by a person
who downloads Sowkiya app and who registers himself is uploaded on the Government
of India server. Also there is "No sunset clause" for the data collected. As per a report
published by Statista, presently there are nearly 700 million internet users in Sindhiana.
This figure is projected to grow to over 974 million users by 2025. In fact, India was
ranked as the second largest online market worldwide in 2019, coming second only to
China. It inserted Section 43A in the Information Technology Act30, Also Section 72A
in the Information Technology Act31, Is also being violated here. Hence, this clearly
violates the right to privacy of the citizens
2.6 FLAWS IN THE SOWKIYA APP:
40. It is humbly submitted that the applications used by other countries are not using the
location services to trace the people and their activities are not traced but however this
application launched by the Indian Government as an health application clearly traces
a person and their way of life and movement.
29
WP(C).No.19716 OF 2019(L)
30
Section 43A of Information Technology Act
31
Section 72A in the Information Technology Act

41. It is humbly submitted that this application which has been launched by the government
is against the will of the society and it clearly violates the right to privacy of the citizens.
It is very much clear that the app infringes into the privacy of the public. This will also
go against the ratio of K.S. Puttaswamy(Retd) and Anr Vs. Union of India32.
The Terms and Conditions of the application are very ambiguous. The preface on it states that
"The terms may be amended from time to time with notice to you. In order to continue using
the App, you will be required to accept the revised Terms. Failure to comply with the Terms
can result in the suspension of your ability to use the App".
42. This clearly indicates that the consent is compulsory even for the revised terms and
conditions and that too after the data from him/her is already collected. The disclaimer
of the terms states that all services are never wholly free from defects, errors, and bugs
and the Government of Sindhiana provides no warranty or representation to that effect.
Security protections for data processing during the Covid-19 pandemic should not be
compromised and the data must be maintained securely and must be exchanged only
through secure platforms and hardware.
43. Any apps related to COVID-19 promoted by the Government should be secure and their
data collection should be in tune with the principles mentioned herein. In Binoy
Vishwan v. Union of India33
It was felt that a large section of citizens felt concerned about data leak, this concern
must be addressed by the government because it is important that their apprehensions
are satisfied by taking proper measures.
32
Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161
33
WRIT PETITION (CIVIL) NO. 247 OF 2017

44. Further, in the case of UIDAI v. CBI34, the Supreme Court had held that fingerprints
and the retina scans cannot be shared with an investigative authority. without the
consent of the individual. The current Indian law regime recognizes biometric data as
Whereas the Sindiana ministry "Sowkiya '' app where more than 50 million users are
involved tracking is done via Bluetooth and a location-generated graph that charts
proximity with anyone infected.
45. Once the app is installed, the users are required to switch on their Bluetooth and
Location sharing, and keep them on always for effective tracking. The rule 4(iii) of the
the Sensitive personal data rules, 2011 states purpose of collection and usage of such
information must be disclosed to the user, but as far as the covid assist apps considered
the location sharing doesn't have a valid purpose or usage for getting the details of it.
46. In R. C. Cooper v. Union of India35 It is established that the right to privacy permeates
with all kinds of freedom under part III besides right to life and personal liberty under
Article 21 and therefore, any interference with the right to privacy by the state must
satisfy the test of reasonableness of restrictions under part III as well as that under
Article 21. In Ram Jethmalani v Union of India36 (“Ram Jethmalani”), a Bench of
two judges was dealing with a public interest litigation concerned with unaccounted
monies and seeking the appointment of a Special Investigating Team to follow and
investigate a money trail. This Court held that the revelation of the details of the bank
accounts of individuals without the establishment of a prima facie ground of
wrongdoing would be a violation of the right to privacy.
34
Unique Identification Auth. of India & Another v. Central Bureau of Investigation
35
1970 AIR 564, 1970 SCR (3) 530
36
Writ Petition (criminal) No. 920 Of 1984)

47. This right is the 'right to be let alone'. In the context of surveillance, it has been held
that surveillance, if intrusive and seriously encroaches on the privacy of citizens, can
infringe the freedom of movement, guaranteed by Articles 19(1)(d) and 21. The first
time this topic was ever raised was in the case of Kharak Singh v. State of UP37 where
the Supreme Court held that Regulation 236 of UP Police regulation was
unconstitutional as it clashed with Article 21 of the Constitution. It was held by the
Court that the right to privacy is a part of the right to protection of life and personal
liberty. Here, the Court had equated privacy to personal liberty
48. The citizens have a Constitutionally guaranteed ‘Right to Know’ right as held in R.P.
Ltd. v. Indian Express Newspaper38. and ‘Right to Reasonable expectation of
Informational Privacy is a right in Katz v. United States39... which must always be
respected by the State.
From the above submission, the counsel for the petitioner humbly submits that the individual
privacy cannot be degraded for the sole reason of public health or safety. The data and the
information has been becoming a huge state of the market, therefore this court must strictly
look into the serious nature of this case.
37
1963 AIR 1295, 1964 SCR (1) 332
38
1988 SCR Supl. (3) 212.
39
389 U.S. 347 (1967)

3. WHETHER THE ‘RIGHT TO HEALTH’ IS PARAMOUNT WHEN COMPARED

TO THE ‘RIGHT TO PRIVACY’ ?
The counsel for the Petitioner humbly submits that the right to privacy is equally important to
the Right to Health. It is further contended that the Right to heath is paramount when compared
to the Right to Privacy only when it passes the test of reasonableness & proportionality under
Art 21 and as far as this case is concerned that is not passed. It is also humbly submitted that
the Right to Health must be harmoniously construed with Right to Privacy. .
3.1 THE RIGHT TO PRIVACY IS A PART OF RIGHT TO LIFE & LIBERTY & IT'S
IMPORTANCE SHALL NOT BE CONTESTED WITH THE RIGHT TO HEALTH.
49. It is content that the Delhi High Court in its Landmark decision40 on consensual
homosexuality held that the private space in which man-made become and remain
himself must be protected and humans need a place of sanctuary where they can be free
from social control.
50. It is humbly submitted that the Right to Health can only be Paramount to the Right to
privacy, if the right is conferred upon the procedure established by law which is just
reasonable and Fair. It is also contended that the Right to Health can be Paramount to
the Right to Privacy only when it passes the proportionality test and the test of
reasonableness under Article 19 and Article 21.
Hence, the counsel for the petitioner humbly submits that the as far as this case is concerned
the personality test is not passed by the protocol followed by the application.
3.2 THE RIGHTS TO HEALTH & RIGHT TO PRIVACY SHALL BE

HARMONIOUSLY CONSTRUED:
51. It is humbly submitted that the doctrine of harmonious construction shall be used to
avoid any inconsistency and repugnancy Within the parts of the statute41.
40
Naz Foundation vs Government Of Nct Of Delhi
41
https://lawcirca.com/what-is-the-doctrine-of-harmonious-construction/

52. It is contended that the Supreme Court has laid down five main principles of the
Doctrine of Harmonious Construction according to which,
3.2.1 THE RIGHT TO PRIVACY AND THE RIGHT TO PUBLIC HEALTH ARE TO
BE HARMONIZED IN SUCH A WAY THAT THE OBJECTIVES OF BOTH OF
THEM ARE ACHIEVED42.
53. The Central Government shall not mandate the installation of the application and
advise the citizens to install it so as to avoid the compulsions of the infringement of
right to privacy.
If it is not possible to completely reconcile the differences in the contradictory Provisions the
court must interpret them in such a way as to give effect to both Provisions as much as
possible43.
54. Though the provisions of Sunset clause cannot be made, the central government shall
constitute an independent oversight authority to ensure that the information collected
are only utilized for the object off the application. The Court must understand that the
interpretation which reduces one provision to a useless standing is against the essence
of Harmonious Construction.
55. The Central Government may not require citizens to install the application to get the
opportunities he may get if it's installed. To harmonies the provisions is not rendered
fruitless or destroy any provision. The provision of one section cannot be used to render
useless the other provision..
From the above submission the counsel for the Petitioner humbly submits that the Right to
Privacy shall be harmoniously construed with that of the Right to Privacy.
42
CIT v Hindustan Bulk Carriers (2003)3 SCC 57
43
Sultana Begum vs Prem Chand Jain AIR 1997 SC 1066, pp 1009, 1010.

PRAYER FOR RELIEF
Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Supreme Court of Sindhiana,
1. To allow this Public Interest Litigation petition under Article 32 of the Constitution of
Sindhiana
2. A writ of mandamus or any other appropriate writ or order directing the respondent
authorities to make the use of Sowkiya application by citizens voluntary;
3. A declaration to the effect that the Sowkiya app cannot be mandated for accessing any
Government service or facility;
And pass any other order, direction, or relief that this hon'ble court may deem fit in the interest
of Justice, equity and good conscience.
For this act of kindness, the Petitioner shall duty-bound forever pray
*****
{Counsel for the Petitioner}

DLS Petitioner

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The Directorate of Legal Studies, Tamilnadu, Inter-Collegiate Level Moot Court

THE DIRECTORATE OF LEGAL STUDIES TAMIL NADU, INTER-COLLEGIATE

BEFORE THE HON’BLE SUPREME COURT OF

ORIGINAL WRIT JURISDICTION

UNDER ARTICLE 32 OF THE CONSTITUTION OF SINDHIANA

THE PEOPLE FOUNDATION ON INTERNET PRIVACY ……PETITIONER

UNION OF SINDHIANA ........ RESPONDENT

MEMORIAL ON BEHALF OF THE PETITIONER

Submission on behalf of the PETITIONER 1

S.NO TABLE OF CONTENTS PAGE NO

3 STATEMENT OF THE FACT 8

Submission on behalf of the PETITIONER 2

1. PUCL v. Union of India………………………………………………………………11

Submission on behalf of the PETITIONER 3

1 Information Technology Act, 2000

2 Disaster Management Act, 2005

3 Indian Penal Code, 1860

4 Aadhar Act, 2016

5 The Constitution of India, 1950

1 M P Jain, Indian Constitutional Law, Eighth Edition.

2 Mamta Rao, PUBLIC INTEREST LITIGATION, Legal Aid

3 Durga Das Basu, Commentary On The Constitution Of India

4 Samaraditya Pal, India's Constitution - Origins & Evolution

5 Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed.

Submission on behalf of the PETITIONER 4

1 International Covenant on Civil and Political Rights

2 Universal Declaration of Human Rights

3 European Convention on Human Rights

1 Garner Bryana, Black's law Dictionary, 7th Edn.1981, West

2 Collins Gem English Thesaurus, 8th Edn. 2016, Collins

3 Catherine Sounes, Oxford Dictionary Thesaurus. 40th Edn. 2006,

Submission on behalf of the PETITIONER 5

S.NO ABBREVIATIONS EXPANSION

2 AIR ALL INDIA REPORT

3 AIHC ALL INDIA HIGH COURT CASE

5 CBI CENTRAL BUREAU OF INVESTIGATION

7 Cri LJ CRIMINAL LAW JOURNAL

8 Cr.P.C CRIMINAL PROCEDURE CODE

10 HCC HIGH COURT CASE

11 IPC INDIAN PENAL CODE

12 NGO NON GOVERNMENTAL ORGANIZATION

14 SCC SUPREME COURT CASE

15 U/S UNDER SECTION

16 UOI UNION OF INDIA

17 WHO WORLD HEALTH ORGANIZATION

Submission on behalf of the PETITIONER 6

32. Remedies for enforcement of rights conferred by this Part

Submission on behalf of the PETITIONER 7

NOVEL DISEASE AND SOWKIYA APP:

SOWKIYA APP AND PRIVACY:

Submission on behalf of the PETITIONER 8

WHETHER THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE.

WHETHER THE USAGE OF THE SOWKIYA APP WHICH REQUIRES THE

WHETHER THE ‘RIGHT TO HEALTH’ IS PARAMOUNT WHEN COMPARED TO

Submission on behalf of the PETITIONER 9

1. WHETHER THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE.

2. WHETHER THE USAGE OF THE SOWKIYA APP WHICH REQUIRES THE

3. WHETHER THE ‘RIGHT TO HEALTH’ IS PARAMOUNT WHEN

Submission on behalf of the PETITIONER 10

1. WHETHER THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE.

1.1 THAT THERE IS A VIOLATION OF FUNDAMENTAL RIGHTS IN THE PUBLIC

1. It is humbly submitted that the respondent declared a complete lockdown as a measure

Submission on behalf of the PETITIONER 11

3. The entry to the government organizations, public transport, private corporate