T-18 Memorial Petitioner

JSSLC INTRA-COLLEGIATE MOOT COURT COMPETITION, 2020-2021.
Team Code: T-18
BEFORE THE HON’BLE

SUPREME COURT OF INDO
PUBLIC INTEREST LITIGATION

ORIGINAL WRIT JURISDICTION
W.P. (CIVIL) NO. ___ OF 2021.

UNDER ARTICLE 32 OF THE CONSTITUTION OF UNION OF INDO
IN THE MATTER OF
ROY MUSTANG……………………………. PETITIONER
v.
THE UNION OF INDO……………………… RESPONDENT
WRITTEN SUBMISSION ON BEHALF OF THE PETIOTIONER
Counsel for Petitioner PETITIONER

Sd/- Sd/-
i
MEMORIALS ON BEHALF OF THE PETITIONER
TABLE OF CONTENTS
SL.NO PARTICULARS PAGE NO
1. TABLE OF CONTENTS ii
2. LIST OF ABBREVIATIONS iii
3. INDEX OF AUTHORITIES v
v
 BOOKS
 DICTIONARY v
 LEGISLATIONS v
 ARTICLES
v
 LEGAL DATABASES
 TABLE OF CASES vi
4. STATEMENT OF JURISDICTION viii
5. STATEMENT OF FACTS ix
6. ISSUES FOR CONSIDERATION x
7. SUMMARY OF ARGUMENTS xi
8. ARGUMENTS ADVANCED 1
I. Whether the petitioner has the locus standi to approach
1
the Hon’ble Supreme Court of Indo.
II. Whether the App infringes the Right to Privacy under
7
Article 21.
III. Whether the Right to Privacy precedes the Right to
17
Health.
9. PRAYER 24
ii
LIST OF ABBREVIATIONS
% Percentage
& And
+ve positive
1st First
2nd Second
AIR All India Reporter
App Application
Art. Article
Cal Calcutta
DiD Unique Digital ID
Edn. Edition
Govt. Government
GPS Global Positioning System
Hon’ble Honourable
i.e., That is
ID Identity Document
J. Justice
Ltd. Limited
NIC National Informatics Centre
No. Number
Ors. and Anr. Others
Pg. Page
PIL Public Interest Litigation
iii
PMO Prime Minister’s Office
PPE Personal Protective Equipment
Ref Reference
S./Ss Section/s
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reports
Severe acute respiratory syndrome COVID-19

Coronavirus 2
SOP Standard Operating Procedure
Supp. Supplement
T. N Tamil Nadu
U.O. I Union of India
U.P. Uttar Pradesh
u/a Under Article
v. Versus
Vol. Volume
iv
INDEX OF AUTHORITIES
A. BOOKS REFFERED:
1. D.D. Basu, Commentary on Constitution of India, (9th Edn. Lexis Nexis, Second
Reprint, 2019).
2. Gautam Bhatia, “Offend, Shock or Disturb, Free Speech under the Indian
Constitution” (oxford university press,2018).
3. Lord Denning, Discipline of Law (1st Edn. 1979).
4. M.P. Jain, Indian Constitutional Law, (7th ed, Lexis-Nexus Butterworth Wadhwa
Publications, Nagpur, 2016).
5. V.N. Shukla’s “Constitution of India”, (13th Edn. Mahendra Pal Singh, EBC
Publications, Lucknow. 2017 Reprint - 2019).
B. DICTIONARY
1. Black Henry Campbell, Black’s Law Dictionary (6th Edn. 1990).
C. LEGISLATIONS
1. Disaster Management Act, 2005.

2. Epidemic Diseases Act, 1897.
3. Information Technology Act, 2000.
4. Personal Data Protection Bill, 2019 (Bill).
5. The Constitution of India, 1950.
D. ARTICLES REFFERED
1. Warren and Brandies, “The Right to Privacy”, Vol .4, (5), Harvard Law Review, 195-
196 (1890).
2. Gautham Bhatia, “State Surveillance and Right to Privacy in India: A Constitutional
Biography”, Vol. 26 (2) National Law School of India Review, 148 (2014).
E. LEGAL DATABASES
1. Hein Online.
2. Manupatra.
3. SCC Online
4. West Law.
v
TABLE OF CASES
SL.NO NAME OF THE CASE CITATION
1 Anuj Garg v. Hotel Assn. of India. , (2008) 3 SCC 1.
2 Bennett Coleman & Co v. Union of India. (1972) 2 SCC 788.
3 Bhaduva Mukta Moarcha v. Union of India AIR 1984 SC 812.
4 Bijoe Emmanuel v. State of Kerala AIR 1987 SC 748.
5 Chintaman Rao v. State of Madhya Pradesh AIR 1951 SC 118
6 Consumer Education and Research Centre v. AIR 1995 SC 922.

Union of India
7 Gobind v. State of Madya Pradesh (1975) 2 SCC 148.
8 IAMAI V. Union of India (2020) SCC Online 275.
9 Justice K S Puttaswamy and other v. UOI AIR 2017 SC 4161
10 K.S. Puttaswamy v. Union of India. (2019) 1 SCC 1
11 Kharak Singh v. State of UP. AIR 1963 SC 1295
12 Maneka Gandhi v. Union of India AIR 1978 SC 597
13 Mr. X v. Hospital Z. (1998) 8 SCC 296
14 Omkumar v. Union of India AIR 2000 SC 3689.
15 People’s Union for Civil Liberties v. Union of (1997) 1 SCC 301

India,
16 R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632,
17 Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225.
vi
18 Ramlila Maidan Incident v. Home Secretary, (2012) 5 SCC 1

Union of India.
19 Roop Chand Adlaka v. DDA 1989 Supp (1) SCC 116,124.
20 S P Gupta v. Union of India AIR 1982 SC 149
21 Selvi v. State of Karnataka, AIR 2010 SC 1974.
22 Shreya Singhal v. Union of India (2015) 5 SCC 1
23 State of M.P. v. Thakur Bharath Singh. AIR 1967 SC 1170
24 State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75
25 Supreme Court Advocates on Record (2016) 5 SCC 1

Association v Union of India
26 The Mumbai Kamgar Sabha, Bombay v. Abdul AIR 1976 SC 1455
Bhai Faizullbhai and Ors
27 Union of India v. Motion Picture Association 1999 (3) SCR 875.
28 Unni Krishnan v. State of A.P. (1964) 1 SCR 332.
vii
STATEMENT OF JURISDICTION
The Writ Petition has been filed invoking the writ jurisdiction of the Supreme Court of India
under Article 32 of the Constitution of India 1.
The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by part III is guaranteed.
Wherein, Article 32 reads as under:

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
3. Without prejudice to the powers conferred on the Supreme Court by clause (1) and
(2), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause (2).
4. The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution”.
1
Constitution of Indo is in pari materia with Constitution of India, hereinafter referred to as “Constitution”
viii
STATEMENT OF FACTS
Indo is a Democratic Republic. It is the second largest in terms of population and seventh
largest country in the world. After the outbreak of Corona Virus (COVID-19), the National
Informatics Centre under the Ministry of Electronics and Information Technology developed
a Contact tracing app called Go Corona. The app was made public on May 26 th 2020 and the
government advised the public to download the app. The purpose of the app was to Spread
awareness on Covid-19, connect essential covid-19 related health services to the People of
Indo. The app aims at proactively reaching out and informing the users of the app regarding
risks, best practices and relevant advisories pertaining to containment of Covid-19. The app
requires the user’s Mobile number, Name, Age, Profession, Countries visited in last 30 days
and stores it in the app server. The user can take Self-assessment Tests, the app collects their
response to the test. It records details of all the people they have come in contact with as they
go about their routine activities. The application will alert them, if any one of their contacts
tests positive. The app is developed keeping in mind the “Privacy by design” principle to
rule out any possible presence of vulnerabilities that may exist despite the best measures
taken. Glitch-be-gone programme is used to learn vulnerabilities and to do swift action to fix
them and improve the security. The Govt. also released a source code which can be used by
the developers to point out the bugs and to fix the same to maintain transparency and proper
functioning. The classifications were based on colour codes to show the increasing risk of
influence, 1. Green – safe or at low risk. 2. Yellow – Moderate Risk, 3. Orange – high risk
and 4. Red – Covid positive. On June 6th 2020, John Snow, an ethical hacker hacked the
server and informed about the possibilities of the misuse to PMO, Parliament and home
office. Airport Authority of India in its SOP made compulsory that the departing passengers
to use the app or to pay fine, the same was not accepted by Civil Aviation Ministry. As the
time passed several concerns were raised over the app and there was alleged violation of
privacy. Govt. of India mandated the use of app to everyone and anyone who violated the
same had to pay fine and can be detained by the authorities, they were subjected to medical
tests within 18 hours. Spike Spiegel amongst many others was a local farmer and used a basic
mobile phone which supported only basic application and did not support this app. He was
detained for several hours but the test was not conducted due to non-availability of PPE kits.
He was asked to come after 3 days and later he was tested positive with symptoms and
several other detainees also tested positive and 4 authorities also tested positive. Mr. Roy
Mustang, a public-spirited person approached the Hon’ble Supreme Court of Indo.
ix
ISSUES RAISED
ISSUE – I
WHETHER THE PETITIONER HAS THE LOCUS STANDI TO APPROACH THE
HON’BLE SUPREME COURT OF INDO.
ISSUE – II
WHETHER THE APP INFRINGES THE RIGHT TO PRIVACY UNDER
ARTICLE 21.
ISSUE – III
WHETHER THE RIGHT TO PRIVACY PRECEDES THE RIGHT TO HEALTH.
x
SUMMARY OF ARGUMENTS
I. WHETHER THE PETITIONER HAS THE LOCUS STANDI TO APPROACH THE

It is most humbly submitted before the Hon’ble Court that the PIL in the present case is
maintainable, the petitioner being a Public-spirited person has approached this Hon’ble court
under Article. 32 of the Constitution for the enforcement of the Fundamental Rights which is
infringed by the ‘Go Corona’ Application and its mandatory use. The App being made
mandatory for everyone is against Article 14 of the Constitution, as the people who do not
have the smartphones thus cannot install the App by the government in their basic phones are
treated same as the people who have the smartphones. These two classes of people are not
alike and hence they should be treated differently which is not the case in the present issue.
Further the detention of the people without any legislation governing the same even for a
small period of time is a violation of Art.19(1)(d) and cannot be a reasonable restriction given
under 19(5). Further this app violates the Right to Privacy of the citizens of Indo which is
guaranteed under Article 21 of the Constitution, which will also be further substantiated in
the II issue.
II. WHETHER THE APP INFRINGES THE RIGHT TO PRIVACY UNDER

ARTICLE 21.
It is most humbly submitted before the Hon’ble Court that the App infringes the Right to
Privacy under Art.21 of the Constitution. Any interference with any right protected under
Article 21 of the Constitution can only be done with the existence of a law. In this case for
the collection and process of the data, constant surveillance of the ‘Personal Information’,
there exists no specific legislation and thus any interference with the Privacy without a law is
violation of Right to Privacy guaranteed under the Constitution. Any privacy policy or law
which is enacted should be according to the well-established Privacy Principles. In this case,
the mandatory imposition of the app is violation of the Principle of Collection Limitation and
Purpose Limitation, which are the two basics of the many Principles set-out and agreed upon
to be taken into consideration by this Hon’ble Court, violation of these principles possesses a
great threat to Right to Privacy. In order to collect or to process, or just to know any personal
information of any person it is necessary that the person to whom the data belongs as to give
consent for the same, in this particular case the mandatory imposition of the app, which
xi
forces a person to give consent is against the concept of Right to be let alone, and thus
violative of Right to Privacy and is against the well-established principles of Personal
Liberty. The app violates the doctrine of Proportionality, laid down and emphasised by the
Supreme Court in many cases and thus is violative of Right o Privacy. Any person or an
organisation should be held liable for wrong doing, the T&C’s of the app gives immunity to
this well evolved principle and is thus violation of not only Right to Privacy but also is in
violation of Information Technology Act, 2000 which is the only legislation dealing with
informational data. Thus, the app infringes the Right to Privacy guaranteed under Article 21
of the Constitution.
III. WHETHER THE RIGHT TO PRIVACY PRECEDES THE RIGHT TO HEALTH.
It is Humbly submitted before the Hon’ble Court that the Right to Health cannot be
prioritised over Right to Privacy, as both are Fundamental Rights. In the present case the
violates Right to Privacy as it is not in accordance with the principles of Right to Privacy and
the app is not in accordance with the ‘Privacy-by-design’ principle. The intrusion of Right to
Privacy cannot be justified as the intrusion does not pass the tests of proportionality.
Thus, the app should not be made mandatory as it violates the Right to Privacy of the
citizens.
xii
ARGUMENTS ADVANCED
I.
WHETHER THE PETITIONER HAS THE locus standi TO APPROACH THE
It is humbly submitted before the Hon’ble Supreme Court that the petitioner in the instant
case has the locus standi to approach the Hon’ble Court. The locus standi means the power to
stand before the court. The basic principle of the Public Intrest Litigation is that the petitioner
should seek the benefit of public at large and should not have his own motive to be served by
the outcome of such PIL and only when constitutional provisions has been compromised. A
PIL can be filed by any member or NGO or any institutions working for the society at large.
I.1 LOCUS STANDI
The petitioner seeks the Article 32 of the Constitution as the locus standi which is a
Fundamental Right in itself, every aggrived citizen who is deprived of their Fundamental
Right can approach this Hon’ble Court for the enforcenment of the Fundamental Rights
against the State authorities.
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
3. Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of
its jurisdiction all or any of the powers exercisable by the Supreme Court under clause
(2).
4. The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution”.
A citizen has the right to approach the Supreme Court under Art.32 for the enforcement of
their Fundamental Rights mentioned under Part III of the Constitution. Art.32 is remarked as
the Heart and Soul of the Constitution.
1
The Rights under Part III would be meaningless if they cannot be enforced.
In S P Gupta V. Union of India (UOI) and Ors., the court stated that :2
“where a legal wrong or a legal injury is caused to a person or to a determinate class of

persons by reason of violation of any constitutional or legal right or any burden is imposed in
contravention of any constitutional or legal provision or without authority of law or any such
legal wrong or legal injury or illegal burden is threatened and such person or determinate
class of persons is by reason of poverty, helplessness or disability or socially or economically
disadvantaged position, unable to approach the Court for relief, any member of the public can
maintain an application for an appropriate direction, order or writ in the High Court under
Article 226 and in case of breach of any Fundamental Right of such person or determinate
class of persons, in this Court under Article 32.”
In the Mumbai Kamgar Sabha, Bombay V. Abdul Bhai Faizullabhai and Ors3, Justice V. R
Krishna Iyer rightfully held that, the right to approach the courts when similar individual
rights of several people are infringed is the appropriate remedy in our socio-economic
context.
In the instant case, the petitioner is a public spirited person and is filing the present PIL
before this Hon’ble court bona fide for the welfare and benefit of society as a whole and
dosen’t have any personal interest in the subject matter herein.
Hence, the petetioner has the locus standi to approach the Hon’ble Court on the grounds of
violation of the Fundamental Rights such as Right to equality, Right to privacy, and Right to
move freely throught the territory of India, guranteed under Article 14, 21 and 19(1)(d) of
the Constitution respectively, while mandating the use of the “ Go Corona” application.
I.2 Violation of Article 14 of The Constitution.
“ The state shall not deny to any person equality before the law or the equal protection of the
law within the territory of India”
Equality before law means that among equals the law should be equal and should be equally
administered, that like should be treated alike. Equal protection of law –means that all the
persons similarly circumstanced shall be treated alike both in the privilages conferred and
2
S P Gupta v. Union of India, AIR 1982 SC 149.
3
The Mumbai Kamgar Sabha, Bombay v. Abdul Bhai Faizullbhai and Ors, AIR 1976 SC 1455.
2
liabilities imposed by the laws. Equal protection of should be applied to all in the same
situation, and there should no discrimination between one person and another 4.The rule is that
the like should be treated alike not that unlike should be treated alike. Equality before the law
or equal protection of the law does not mean same treatment as everyone 5 i.e to give same
treatment in respects in which they are different. Thus their exists no Reasonable
classification in this particular case as the people with smartphones and people without
smartphones are treated the same.
Whenever there exists a classification their must be a law which should govern this
classification and the law must be reasnable. This Hon’ble Court has laid down tests to show
that a classification made is valid or not. It is most humbly submitted that the classification in
this partcular case is unreasonable and the classification does not satisfy the tests laid down
by the court.The test which are considered for a reasonable classification are, 1) the
classification must be founded on intelligible differntia and 2) the differentia must have a
rational nexus with the object sought to be achieved.6 In this case the medium of classication
is a smartphone which is against the intelligable differntia test. The expression intelligible
diffrentia means differnece capable of being understood and this should be reasonable and
arbitrary7 All marks of distinction do not necessarily justify classification irrespective of the
relavance or nexus to objects sought to be achieved by the law imposing the classification8.
Hence in this particular case there are two different classes, and these two differnent classes
are treated similar, thus violating Equality. Thus there exists no Reasonable classification in
this particular case as the people with smartphones and people without smartphones are
treated the same.
Discriminatory Nature of the App: 1.The ‘Go Corona’ app inadvenrtently differntiate
against regions which have smaller number of concentrations of smartphones or low-income
non-smartphone users. 2. Vulnerable sections like Spike Sigel can’t afford a smartphone and
the internet. Thus mandating use of the App is practically impossible and discrimantes
people.
4
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
5
V.N. Shukla’s “Constitution of India” 50, (13th Edn. Mahendra Pal Singh, EBC Publications, Lucknow. 2017
Reprint - 2019).
6
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
7
M.P. Jain, Indian Constitutional Law, 876 (7th ed, Lexis-Nexus Butterworth Wadhwa Publications, Nagpur,
2016)
8
Roop Chand Adlaka v. DDA, 1989 Supp (1) SCC 116,124.
3
In the instant case, Spike Spigel, who was a local farmer was using a basic phone which
supported only a certain types of basic applications. He was detained along with several
others by the authorities for not having the App on his phone. 9 The direction issued by the
government mandating the use of the App by all the residents of Indo is discriminatory and
violative of of Art.14 of the Constitution. This direction results in denying the benefit of
public services to the vast majority of citizens who do not have a smart phone installed with
Go Corona application. Thus the equal application of the imposition is not possible in such
circumstances, as the people with and without smartphones are subjected to the same
imposition thus against the equal treatment for equals rule.
The government of Indo has not taken any measures for the people with basic phones and
hence, unlikes were also treated alike which is against the ‘Equal protection of the law’. Thus
violating Art. 14 of the Constitution.
I.3 Violation of Article 19(1)(d) of the Constitution.
“All the citizes shall have right to move freely throught the territory of India”. In the instant
case, there were claims that due to technical glitches the App displayed different results with
repeated tests using the same answers and that the App indicated people to be COVID
positive erronously and hence restricting their movement, unresonably.
And further the people who did not have App on their phone were detained for not exceeding
18 hours, thus restricting their free movement in violation of Article 19(1)(d) of the
Constitution. As already mentioned the people like Mr. Sigel who did not have a phone
which supported the App was also detained and thus violating his Right to movement. In
order to impose a restictions on this freedom, the requirement of the law is a pre-requisite and
the restiction can only be imposed by law and not otherwise 10 thus the state authoririties
detaining the person without any law and without giving him a reasonable oppurtunity is in
violation of this precious right.
The right to move freely throught the territory of India is a fundamental right guranteed under
part III of the Constitution of India. This right is, however subject to resonable restriction
mentioned under Art.19(5). In the absence of the law, restrictions cannot be imposed under
Art.19(5). Therefore, the same is in violation of Art 19(1)(d) of the Constitution.
9
Paragraph 9 of the Moot Proposition.
V.N. Shukla’s “Constitution of India” 135, (13th Edn. Mahendra Pal Singh, EBC Publications, Lucknow, 2017,
10
Reprint – 2019).
4
1.4 Violation of Article 21 of the Constitution.
“No person shall be deprived of his life and personal liberty except according to the
procedure established by law.”
According to the Black’s Law Dictionary, privacy means “the right to be let alone; the right
of a person to be free from any unwarranted publicity; the right to live without any
unwarranted interference by the public in matters with which the public is not necessarily
concerned”. The right to privacy is a general term, which encompasses various rights in itself.
In the instant case, the Go Corona App collects name, gender,age, profession, mobile number
along with access to bluetooth and GPS service. GPS (Global Positioning System) tracking is
one of the common ways for tracking and it is quite possible that a person right to privacy
may be violated during the process, as this technology provides ample information after
examining the activities of a person. The nature of data collected through the application is
sensitive and the app is susceptiable to hacking as evidenced by an ethical hacker John Snow.
As it violates one the Fundamental rights i.e right to privacy, it should pass the test of
proportionality.
In Justice K.S. Puttaswamy and others v. Union of India and or11s, the Hon’ble court deduced
principles which govern the permitted circumstances and requirements when the state can
legally infringe the right to privacy. The principles deduced where the principle of legitimate
state aim; the principle of necessity; the principle of adequacy; and the principle of
prooportionality. The Hon’ble court held that:
“ 1) There must be a law in existence to justify an encroachment on privacy by the state.
2) There must be a legitimate state aim.
3) The means which are adopted by the legislature must be proportional to the objectand
needs of the legislation/provision.”
Thus, there should be a law in existence to justify an encroachment on privacy. In this case
there is no such law which mandates the installation of an app that tracks a citizen.
Expanding on the tests laid down by Chandrachud, J., Kaul, J. articulated:
11
Justice K S Puttaswamy and other v. UOI, AIR 2017 SC 4161.
5
“ The concerns expressed on behalf of the petitioners arising from the possibility of the state
infringing the right to privacy can be met by the test suggested for limiting the discreation of
the state:
(i) The action must be sanctioned by law;

(ii) The proposed action must be necessary in a democratic society for a legitimate
aim;
(iii) The extent of such interference must be proportionate to the need for such
interference;
(iv) There must be procedural gurantees against abuse of such interference.”
The pinciple of necessity requires the employement of the least intrusive means of attaining
the legitimate state aim. In the instant case the Go Corona app has used for the most intrusive
method of collecting both location as well as Bluetooth data.
Proportionality was another test established in the privacy judgement to determine the
validity of State’s collection of citizen’s private information. In the instant case, seeking
access to location is not at all proportional and violates the principle of data minimisation.
Similar applications like Singapore’s TraceTogether, France’s StopCovid, Australia’s

COVIDSafe operate on bluetooth only. The purpose of the Go Corona appis to only inform a
user if they came in contact with someone who has been tested positive for Covid. This
purpose can be served by Bluetooth tracing mechanism only, seeking access to location is not
need at all. Hence, the extent of interference is not proportionate to the need of such
interference.
Thus the app Infringes Right to Privacy of the citizens of Indo, this point shall be further
substantiated in the second issue.
Further, the mandatory use of the application discriminates against persons who do not have a
smart phone and also affects the right to privacy of persons with comptiable device but not
willing to install the app due to privacy concerns. Also, there is no expresed existing law
which mandates the installation of the Go Corona app.
Hence it is most humbly and respectfully submitted this Hon’ble Court that the petitioner in
this present case has a lacus standi to approach the Court.
6
II.
WHETHER THE APP INFRINGES THE RIGHT TO PRIVACY UNDER
ARTICLE 21.
It is most humbly and respectfully submitted before the Hon’ble Court that the ‘Go Corona’
App violates the Right to Privacy guaranteed under Article 21 of the Constitution.
In the case of Justice K.S. Puttaswamy (Retd) and Anr. v. Union of India and Ors,12,this
Hon’ble Court held that the Right to Privacy is the basic inalienable right of an individual.
The App violates this inalienable right on the following grounds:
II.1. NO LEGISLATIVE BACKING
It is most humbly submitted before the Hon’ble Court that the App and the Privacy terms
mentioned in the Terms and Conditions does not have any legislative backing to invade the
Right to Privacy of citizens of Indo. The Union of Indo cannot infringe the Right to Privacy
which is an integral part of Right to life and Personal Liberty13 and thus in order to interfere
in the matters of Privacy there should be a legislation. The same will be substantiated as
follows:
II.1.1. NON-EXISTENCE OF A LAW AND NOT IN ACCORDANCE WITH

‘PROCEDURE ESTABLISHED BY LAW’14
The right to privacy is protected as an intrinsic part of the right to life and personal liberty
under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. 15
The expression ‘Procedure established by law’ means the procedure fixed by the law of the
State16, and the infringement of Right to Privacy can only be done through a procedure
established by law’, as given under Article 21 of the Constitution 17. There exists no law in the
either by any legislature or the Parliament which governs the ‘valid intrusion of privacy’. The
concept ‘Procedure established by law’ has three main ingredients, and one among the
ingredients is that there must be a law. In this particular case there exists no law which
12
Justice K S Puttaswamy and other v. UOI, (2017) 10 SCC 1.
13
Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1.
14
Article 21 - Protection of Life and personal liberty – No person shall be deprived of his life or personal liberty
except according to the procedure established by law.
15
Justice K.S. Puttaswamy (Retd) and Anr. v. Union of India and Ors, (2017) 10 SCC 1.
16
Reprint - 2019).
17
People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.
7
empowers the State to collect ‘Personal Information’ for the App. Only the privacy part of the
terms and conditions which requires ‘Personal Information’ is the existing condition to use
this app. This is not a legislation or an ordinance and further this T&C’s do not clearly
establish a procedure for the collection of data, and this falls foul to the test necessity of a
law, which is one of the condition precedents for the ‘procedure established by law’. In
Maneka Gandhi v. Union of India18, a golden triangle rule was laid down by this court.
According to this apart from satisfying the grounds for infringement of Life and Personal
Liberty under Article 21 of the Constitution, the same state action must also satisfy the
reasonableness laid down under Article 14 and Article 19. In this particular case the app
which collects the ‘Personal Information’ does not satisfy the reasonableness tests laid down
under Art.14 and Art 19, as already discussed in the I issue. Reasonable restrictions can only
be imposed by a law and not otherwise any restriction without the authority of law is
unconstitutional19. ‘Every act done by the Government or by its officers must, if it is to
operate to the prejudice of any person, be supported by some legislative authority’ 20
In the context of data privacy, a piece of specific legislation, would be one that defines the
purpose of data collection, details of procedural safeguards against the misuse of such data,
and lays down the period beyond which the data will be purged.
Hence it is most humbly and respectfully submitted that the Non-Existence of a specific
legislation governing the Privacy of the citizens of Indo which gives the procedure for the
collection of data, its storage the app which collects the ‘Personal Information’ is violative of
Fundamental Right of Right to Privacy and further the mandatory imposition of the app in the
citizen of Indo is unconstitutional.
II.1.2. THE MANDATORY IMPOSITION OF ‘GO CORONA’ APP BY AN

EXECUTIVE ORDER NOT VALID.
The need for a legislative authority is based on the democratic principle that the legislature
represents the will of the people and therefore, any infraction of the people’s rights must have
statutory backing. Right to privacy has been culled from Art.21 of the Constitution 21as the
18
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
19
Reprint - 2019).
20
State of M.P. v. Thakur Bharath Singh, AIR 1967 SC 1170., Bennett Coleman & Co v. Union of India, (1972)
2 SCC 788.
21
Mr. X v. Hospital Z (1998) 8 SCC 296.
8
concept of Privacy overlaps with that of liberty22 can only be curtailed with an existence of a
law23.
In this case the National Executive Authority which is formed to assist the management of
the Disaster, is an executive authority and without any legislative backing for the collection
of the ‘Personal Information’ the same cannot mandate the use of application. In Ram Jawaya
Kapur v. State of Punjab24, the Supreme Court noted that the Constitution broadly recognizes
separation of powers, holding the executive authority without specific legislation cannot
encroach upon the legal rights of a person. In this case there is no legislation which
specifically deals with the Data collection and procedural safeguards, thus the collection of
‘Sensitive Personal Information’ of the citizens of Indo by the App is a gross violation of
Right to Privacy. Any executive order which mandates the imposition of such app without
any legal backing should be held unconstitutional as it violates the Right to Privacy
guaranteed under Art.21 of the Constitution.
II.1.3. OVER-BROAD INTERPRETATION OF THE DISASTER MANAGEMENT

ACT SHOULD NOT BE PERMITTED.
Over-broad interpretation of the sections of disaster management act should not be permitted,
as the same gives excess power to the executive to make orders which disturb the
Fundamental Rights of the citizens as in this case. In this case the executive order making the
app mandatory is in violative of the Right to Privacy. In Shreya Singhal v. Union of India25,
Section 66A of Information Technology Act, 2000 was struck down as it was over-broad and
thus violation of Article 19(1)(a). The language employed is wide enough to cover
restrictions both within and without the limits of Constitutionally permissible legislative
action for the purpose’s not sanctioned by the Constitution cannot be ruled out, it must be
held to be wholly void 26 Thus in this particular case the over broad interpretation of the
Disaster Management Act, 2005 should not be allowed as it gives excessive powers to the
Executive Authorities. In this particular case the mandatory imposition of the app in the name
of Covid-19 contact tracing is in violation of the Right to Privacy and mandatory imposition
of the app by executive authority without any legal backing is outside the permissible limits
of the Constitution.
22
Gobind v. State of Madya Pradesh, (1975) 2 SCC 148.
23
24
Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225.
25
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
26
Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118.
9
The Disaster management Act and the Epidemic diseases act cannot used as a means to
collect the sensitive information of the people as the same acts do not have any provisions
related to data collection. Thus, the over-broad application of the act which empowers the
executive, without a law related to data collection cannot be given broadest interpretation
which will potentially violate the Right to Privacy of the individual. The broadest
interpretation in this particular case making the mandatory use of the app amounts to
executive overreach.
Hence it is humbly submitted that the over-broad interpretation of the Umbrella legislation
like Disaster Management Act, 2005 and giving excessive power to the Executive without
any legal backing for the mandatory use of the app is violation of the Right to Privacy and
hence the same should not be permitted.
In Arguendo, without the prejudice to submissions made by the petitioner’s in this sub-
contention if the Hon’ble Court is still of the opinion that the power of mandatory imposition
of the of ‘Go Corona’ app could flow from the Disaster Management Act, 2005,it is humbly
submitted that the same is in violation of Article 14 as it discriminates people who have
smartphones and those who cannot afford smartphones is against the Equality principle and
fouls foul in front of the tests laid down by this Hon’ble Court as already contended in Issue
I. Further if a person who does not possess a smartphone as in this case Spike Sigel is
detained restricting his Right to Movement within the territory of India guaranteed under
Art.19(1)(d).
Hence it is most humbly submitted before the Hon’ble Court that the app does not have any
legal backing and thus is violative of Right to Privacy of the Individual.
II.2. VIOLATION OF COLLECTION LIMITATION AND PURPOSE LIMITATION

PRINCIPLES.
In the case of Justice K.S. Puttaswamy (Retd) and Anr. v. Union of India and Ors27, the
Supreme Court acknowledged the Principles of Collection Limitation and Purpose limitation.
The Hon’ble Court acknowledged the committee report 28
, and urged the Government to
consider the same in formation of Privacy Policies in the Country.
27
Justice K.S. Puttaswamy (Retd) and Anr. v. Union of India and Ors, (2017) 10 SCC 1
28
“Report of the Group of Experts on Privacy” (16 October, 2012), Government of India.
10
Collection Limitation: refers to “A data controller shall only collect personal information
from data subjects as is necessary for the purposes identified for such collection, regarding
which notice has been provided and consent of the individual taken. Such collection shall be
through lawful and fair means”. In this case, the app collects excessive information than what
is necessary, here the State is collecting the information more than what is necessary is
against Collection Limitation and thus it is violation of Right to Privacy.
As can be seen, ‘A data controller shall only collect personal information from data subjects
as is necessary for the purposes identified for such collection’. In this case the ‘Go Corona’
app collects name, gender, age, profession, countries visited in the last 30 days. This violates
the Principle of Collection Limitation. Name of the person can only be considered the only
necessary information required for contact tracing. The age, gender, profession and others
and collection of the same amounts to “excessive collection” and is not required to trace a
person. As mentioned in the terms and conditions, the data anonymisation is necessary in
order for non-disclosure of collected data to third parties, the data anonymisation can be done
only using the name of the person and his phone number, using this the government can
obtain the Device ID which is enough for contact tracing.
Further the requirement of GPS for the contact tracing amounts to excessive intrusion of
Privacy and thus is violation of Right to Privacy of the individual. Right to Privacy basically
means Right to be let alone 29 , the requirement of GPS, which gives the location details of a
person, and thus it amounts to tapping his movement which is against the well-established
principle of Privacy. The location of a person can also be traced by a using the method of
cellular triangulation of a person’s phone, this process will be explained in the III issue.
Further the collection limitation principle states that, “Such collection shall be through lawful
and fair means”, in the absence of a specific legislation, as already discussed above the
collection of such information is against the Collection Principle. Such mandatory collection
and processing of information cannot be carried out without an enabling legislation.in the
case of Bijoe Emmanuel v. State of Kerala30, this Hon’ble Court held that “the law is now
well settled that any law which made under clauses (2) to (6) of Art. 19 to regulate the
29
Justice K.S. Puttaswamy (Retd) and Anr. v. Union of India and Ors, (2017) 10 SCC 1, R. Rajagopal v. State
of Tamil Nadu, (1994) 6 SCC 632, Warren and Brandies, “The Right to Privacy”. Vol.4 (5), Harvard Law
Review, 195-196 (1890)
30
Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748.
11
exercise of the right to freedoms guaranteed by Art. 19(1)(a) to (e) and (g) must be a ‘law’
having a statutory force and not a mere executive or departmental intrusion”
Thus, the App is against the Principle of Collection Limitation, thus violative of Right to
Privacy.
Purpose Limitation: “Personal data collected and processed by data controllers should be
adequate and relevant to the purposes for which it is processed. A data controller shall
collect, process, disclose, make available, or otherwise use personal information only for the
purposes as stated in the notice after taking consent of individuals. If there is a change of
purpose, this must be notified to the individual. After personal information has been used in
accordance with the identified purpose it should be destroyed as per the identified procedures.
Data retention mandates by the government should be in compliance with the National
Privacy Principles;”31
It is most humbly submitted before the Hon’ble court, there is no clear provisions in the
Terms and Conditions, who has access to the data collected by the app. The Personal data
which is collected by the State in this particular case is ‘Sensitive Personal Information’.
“data controller shall collect, process, disclose, make available, or otherwise use personal
information only for the purposes as stated in the notice", the terms and conditions of the app
do not say how the data will be processed, who all have the access to the data and making the
app mandatory makes a person to accept the terms and conditions, which can be unilaterally
changed by the state, terms and conditions does not specify the process of ‘anonymisation’,
the purpose for which the data will be used is also open-ended and vague. The terms and
conditions states ‘risk of infection is analysed by Government of Indo, to facilitate suitable
medical interventions, as and when required’, the above statement does not specify who all
will have the access of the data and uses the broad word ‘Government of Indo’, there is no
specification provided for the term and interpreting it in a broad way, any branch of the
‘Government of Indo’ can access the personal information and the health status of millions of
people and thus without a clear specification, the app is against the purpose limitation
principle.
The second part of this principle says, the use of the data should be only for the specific
purpose. The primary purpose of the app is ‘contact tracing’. But as can be seen from the
T&C’s the data is also being used by the app for analyses. Thus, one data is used for more
31
12
than one purpose. Though the counsel for the petitioner agrees the data analyses for the
purpose of the health is necessary but the government may use it for many other purposes as
all the departments of the government of Indo has the access to the data, and the broad clause
‘Government of Indo’ which has many agencies and the branches creates a confusion in the
minds of the people of Indo about all the authorities which can use this data and thus there is
a threat for ‘Sensitive Personal Information’ of the citizens, which is against the principles of
Privacy laid down by the Court in its judgement.
The third part of the purpose limitation specifies that the data which is collected for a purpose
should be deleted after the purpose is over as per identified procedures. The T&C’s does not
contain any provisions related to the deletion of the ‘personal Sensitive Information’ and it
only specifies the deletion of the unique interactions took place because of the exchange of
DiD’s. There is absence of Sunset clause as to when the data provided by the users will be
deleted. In the first instance, as already contended there is no legislation which specifies the
collection, use and process of the date, and further the T&C’s does not contain any sunset
clause, thus it creates a threat to the data collected by the app, which may be used for other
purposes for ex. tracking of criminals by the police and other commercial purposes.
Thus, it is most humbly submitted before the Hon’ble Court the app does not comply with the
Principle of Purpose Limitation which one of the fundamental prongs of Right to Privacy.
Hence it humbly submitted before the Hon’ble Court that the app is in violation with the
Principles of Right to Privacy and thus violative of Right to Privacy.
II.3. MANDATORY IMPOSITION WITHOUT CONSENT IS VIOLATION OF THE

PRINCIPLES LAID DOWN IN PRIVACY JUDGEMENT AND THUS VIOLATIVE
OF RIGHT TO PRIVACY.
As can be seen in the above-mentioned principles, and the other principles laid down by the
Supreme Court Judgment in K.S. Puttaswamy v. Union of India32 and in Privacy judgement33,
the consent of the people to use their data is a very important facet of Right to Privacy.
“Choice and Consent: A data controller shall give individuals choices (opt-in/optout) with
regard to providing their personal information, and take individual consent only after
32
K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1.
33
Justice K.S. Puttaswamy (Retd) and Anr. v. Union of India and Ors ,(2017) 10 SCC 1.
13
providing notice of its information practices;” 34. In the case at hand mandatory imposition of
the App vis against this very Principle which is the heart and soul of Privacy. The T&C’s of
the gives a choice to the people to opt-out and delete the app whenever they want, but the
mandatory imposition of the use of the app is opposite to the T&C’s, and thus the act of
imposition of the app is against the privacy norms set by the app and also violation of Right
to Privacy. In the case of Selvi v. State of Karnataka35, the Court held that if an individual is
being forced to give consent for any purpose, then it is a kind of intrusion of personal liberty.
In the case of Anuj Garg v. Hotel Association of India36, the Court held that “personal
autonomy includes both negative right of not to subject to interference by other and positive
right of individuals to make decisions about their life, to express themselves and to choose
which activities to take part.”, “the ability of an individual to make choices lies at the core of
human personality37. Intrusion upon the Privacy which is inalienable part of life and personal
liberty requires the consent of the person to use the personal information and any imposition
of the same is violative of this precious right.
Hence the vagueness in the decision of the State for the mandatory imposition of the App, is
against the privacy norms given the T&C’s of the app. Thus, it is most humbly and
respectfully submitted before the Hon’ble Court that the mandatory imposition of the app is
against the Consent principle and also acceptance of the terms and conditions which is made
mandatory without giving any choice to the people forms a part of compelled speech and thus
is violative of Art. 19(1)(a)38 and Article 21 of the Constitution.
II.4. AGAINST PROPORTIONALITY PRINCIPLE AND ESCAPE FROM LIABILTY
II.4.1. VIOLATION OF PROPORTIONALITY PRINCIPLE:
The principle of proportionality envisages that a public authority ought to maintain a sense of
proportion between its particular goals and the means it employs to achieve those goals, so
that its action impinges on the individual rights to the minimum extent to preserve the public
interest. It means that the administrative action ought to bear a reasonable relationship to the
34
35
Selvi v. State of Karnataka, AIR 2010 SC 1974.
36
Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1.
37
38
Union of India v. Motion Picture Association, 1999 (3) SCR 875.
14
general purpose sought to be achieved and the same was confirmed by this court39 this also
covers necessity test which takes into account other less restrictive alternative.
In the case at hand, the invasion of privacy is against proportionality principle as there is an
excessive intrusion of the Right to Privacy and does not have the rational nexus with the
object sought to be achieved. This will be further substantiated in the Issue III, where the
counsel for the petitioners will be substantiating why in this case the app which collects data
for contact tracing is against the proportionality standard laid down by the Supreme Court
and thus is in violation of the Right to Privacy.
II.4.2. IMMUNITY FROM LIABILITY AGAINST RIGHT TO PRIVACY AND IN

VIOLATION OF INFORMATION TECHNOLOGY ACT.
Further it is humbly submitted before the Hon’ble Court that the Application violates
Constitutional aspects of data privacy. When we see the liability clause of the application, the
Terms and Conditions clearly states that the Government will not be liable for the
“inaccurate identification of the infected person” and the “inaccuracy of the information”
provided by the in-built server of the Application. The Terms and Condition of the app goes
on to say that the Government of India will not be liable for any “unauthorized access” to the
information of the users. When an individual trusts the State with its data, the trust develops
on the very foundation that the data provided by him/her will be safe and will not be used for
any illegitimate purpose. Data privacy and protection needs to be ensured at every step of
such a big project.40 By adding on to this clause, it creates a suspicion in the mind of the users
with respect to the data protection. There are no proper safeguards along with the application
that ensures that in no case there is a threat to the data of the individual. Thus, it can be said
that mandating the use of application violates the Fundamental Right of Privacy, which is
enshrined by the combination of Article 14, 19 and 21 of the Constitution of India, and is
thus, unconstitutional, as the government escapes from its liability and the people are left
with no legal remedy if there is a data loss due to technical glitches. Thus, it can be said that
if the State ensures that there will be no data leakage, a law by the legislation or action of the
executive, along with the reasonable restrictions, can be passed and stands valid. As can be
seen there are no such guarantees given by the App, and there is no enabling legislation
through which the citizens can get legal remedy for the loss of data due to technical glitches.
39
Omkumar v. Union of India, AIR 2000 SC 3689.
40
15
VIOLATION OF INFORMATION TECHNOLOGY ACT, 2000.
As there is no specific legislation enabling the process of data collection and storage, one has
to look to the only legislation which deals with the Information Technology i.e., the
Information Technology Act, 2000. The T&C’s of the app which gives Government
immunity from liability violates provisions the Information Technology Act, 2000.
According to 2(w)41 of IT Act, which defines the term intermediary, when upon the
application of the definition given above, the mobile application service providers also fall in
the definition of intermediaries i.e., in this case the Government, as the Government is
collecting and storing the information. As per Section 43A of IT act, in case the body
corporate fails to protect the sensitive personal data or the information so possessed by it, and
is negligent in implementing the reasonable security measures, which consequently results in
a wrongful gain or loss, the body corporate is held liable to pay the damages to the affected
person, by way of damages. In this case when Section 2(w) and Section 43A of the IT Act are
co-jointly read, it becomes very clear that the intermediary, in this case, the App which
collects the information and the intermediary i.e., Government should be considered as a
body corporate and will be held liable in case of data breach or mishandling of the data of the
individual. Thus, Liability Clause of the Terms of Service of the app is the clear violation of
Section 43A of the IT Act, 2000, though one can argue that the Government is not a body
corporate, the Government has the duty to protect the information and if it fails to do so then
it should be held liable according to this provision as there are no any other legal remedies
available to the Citizen of Indo.
Hence it is most humbly and respectfully submitted before the Hon’ble Court, after
examining the Terms and conditions and the working of the App, the is in clear violation of
the Fundamental Right of Right to Privacy and thus violates Article 21 of the Constitution.
41
Sec. 2(W) of Information Technology Act, “any person who on behalf of another person receives, stores or
transmits that record or provides any service with respect to that record and includes telecom service providers,
web-housing service providers, search engines, online payment sites, online auction sites, online market places
and cyber cafes.”
16
III.
WHETHER THE RIGHT TO PRIVACY PRECEDES THE RIGHT TO HEALTH.
It is most humbly and respectfully submitted before the Hon’ble Court that in the case at
hand there is excessive intrusion of Right to Privacy and the App violates the Principles of
Right to Privacy, and is against the Proportionality principle, which states that in case of
intrusion of Right to Privacy or any other legal right the Policy Makers i.e., the Government
should choose the less intrusive methods if available. In this case the Government has chosen
a method of data collection, processing and surveillance method which is complex and does
not have the authority of law. In this case it is humbly submitted before the Hon’ble Court
that there is excessive intrusion of Right to Privacy in the name of Right to Health, when
both can co-exist, the violation of one right in the name of the other should not be done as
Right to Privacy not only includes the negative right of Right to be let alone, but also a
positive obligation on the State, in this case the state is not only interfering excessively into
the personal sphere of an individual but also has not taken any proper measures to secure the
data which it has collected. The same can be substantiated in the following sub-issues:
III.1. BOTH RIGHT TO PRIVACY AND RIGHT TO HEALTH ARE
CONSTITUTIONALLY PROTECTED FUNDAMENTAL RIGHTS UNDER
ARTICLE 21 OF THE CONSTITUION.
Both Right to Privacy and Right to Health are equally important and are vital as the former
ensures that the people are healthy in a State and the later gives protection to the people
against arbitrary intrusion into the Personal Sphere of the Individual. In the case of Consumer
Education and Research Centre v. Union of India42, the Court expanding the sphere of
Article 21 of the Constitution held that Right to Health and medical ad to protect the Health
and vigour of a worker, both while in service and post-retirement, is a Fundamental Right
under Article 21 of the Constitution. In Bhaduva Mukta Moarcha v. Union of India,43, held
that although the Directive Principles of the State Policy hold persuasive value, yet they
should be duly implemented by the state; Health forms within the ambit of dignity and within
the ambit of life and liberty under the Constitution. On the other hand, Right to Privacy is
held to be inalienable part of Art. 21 of the Constitution44. concomitant of his right to
exercise control over his personality and is essential for his development as a human being.
42
Consumer Education and Research Centre v. Union of India, AIR 1995 SC 922.
43
Bhaduva Mukta Moarcha v. Union of India, AIR 1984 SC 812.
44
17
The liberty of an individual is a matter of fundamental natural law, a private preserve and
must be safeguarded from unnecessary interference45 Right to privacy is vested within right
to life and personal liberty under Art. 21 of Constitution 46 A citizen under this right has the
right to protect and safeguard the liberty of his own, his family, marriage, procreation,
motherhood, childbearing and education among other matters.47
In the case at hand, it is most humbly and respectfully submitted that, both the rights have its
own value and both the Rights can co-exist even in these unforeseeable circumstances.
Prioritising one over the other cannot be done as both are Fundamental Rights. In this case,
the app violates universally accepted principles of Right to Privacy and it is violative of
Proportionality Principle laid down by this Hon’ble Court, and thus in the name of Contact
Tracing and protection of Health of the Individuals, the Government is violating Right to
Privacy, a constitutionally guaranteed Fundamental Right.
III.2. ‘PRIVACY BY DESIGN’ NOT:
Privacy by Design advances the view that the future of privacy cannot be assured solely by
compliance with regulatory frameworks; rather, privacy assurance must ideally become an
organization’s default mode of operation. 48 The objectives of Privacy by Design — ensuring
privacy and gaining personal control over one’s information and, for organizations, gaining a
sustainable competitive advantage — may be accomplished by practicing the following 7
Foundational Principles49. As given in the moot proposition, the app is designed keeping in
mind the Privacy by design model. This model has 7 foundational Principles, and in this case
few of these foundational principles are violated: 1. Proactive not Reactive; Preventative not
Remedial: According to this principle the ‘privacy by design’ emphasises mostly on
establishing a preventive measures before the collection of data, in the case at hand the same
as not been followed as the state has taken inadequate steps for designing the app as the app
collects the Sensitive data, can be hacked easily by a person who knows his hand around
technology. 2. Privacy as the Default Setting: this principle says that any application which
collects the information should keep in mind the default setting should be for the protection
of data, in this case the contact tracing is given more importance than the privacy, and using
of sensitive information for the ‘sole purpose’ of contact tracing and there is no adequate
45
Gobind v. State of Madhya Pradesh and Ors., (1975) 2 SCC 148.
46
Kharak Singh v. State of UP, AIR 1963 SC 1295.
47
Unni Krishnan v. State of A.P. (1964) 1 SCR 332.
48
Ann Cavoukian,s “Privacy by Design: The 7 Foundational Principles”, (www.privacybydesign.ca, published
2009 and Revised, 2011.
49
Ibid.
18
protection given to data protection, and the government fails to show how the data is
processed.
LACKS TRANSPERANCY: “6. Visibility and Transparency — Keep it Open: Its
component parts and operations remain visible and transparent, to users and providers
alike.”50 There is no transparency as to who can access the data of the individual. Thus,
ignoring the data and making the ‘contact tracing’ a default function of the app, which is
violation of this principle. In the case of Justice K.S. Puttaswamy (Retd) and Anr. v. Union
of India and Ors,51 the court while discussing about data protection held that, “Apart from
safeguarding privacy, data protection regimes seek to protect the autonomy of the individual.
This is evident from the emphasis in the European data protection regime on the centrality of
consent. Related to the issue of consent is the requirement of transparency which requires a
disclosure by the data recipient of information pertaining to data transfer and use.” Thus,
there should be maintenance of transparency by the services providers, in this case there is
zero-transparency about the data transfer and use. “7. Respect for User Privacy — Keep it
User-Centric Above all, Privacy by Design requires architects and operators to keep the
interests of the individual uppermost by offering such measures as strong privacy defaults,
appropriate notice, and empowering user-friendly options. Keep it user-centric.” – in this
case, as can be seen, the app infringes Right to privacy and it is not user-centric rather it is
operator-centric, which allows the operator to have discretion over the private information
and thus, it is against this Principle.
In the privacy judgement, the Supreme court acknowledged the principles to be kept in mind
while forming the policies. The Court held that “Access and correction, disclosure of
information, security, openness, accountability” are few of the Principles to be kept in mind
while formation of Privacy Policies. In the case at hand none of the above principles are
followed by the Govt, the app does not allow people to have access to their information and
also does not allow the correction of the data, the app does not specify who all will have
access to data in specific, but uses a broad term ‘Govt. of Indo’, in the case of Supreme Court
Advocates on Record Association v Union of India52 emphasising the breach of
confidentiality and data protection held that “The balance between transparency and
confidentiality is very delicate and if some sensitive information about a particular person is
50
Ann Cavoukian, s “Privacy by Design: The 7 Foundational Principles”, (www.privacybydesign.ca, published
2009 and Revised, 2011.
51
52
Supreme Court Advocates on Record Association v Union of India, (2016) 5 SCC 1.
19
made public, it can have a far-reaching impact on his/her reputation and dignity.” The above-
mentioned terms are also the facets of Right to Life and Personal Liberty and thus the app
violates Art. 21 of the Constitution, the rules or the terms and conditions do not specify as to
the same thus is violative of Non-Disclosure and Security principles. As discussed, the Govt.
has blanket protection from liability this does not make the Govt. accountable for the Data
Breach due to technical glitches thus escaping from accountability.
Hence it is humbly submitted that though the Right to Health is also important, in this case
there is a grave violation of Right to Privacy and this is one of the core principles right of
Art.21 and thus it is submitted before the Hon’ble Court that Right to Privacy cannot be
sacrificed in the interest of Right to Health.
III.3. AGAINST PROPORTIONALITY PRINCIPLE:
The proportionality principle in general can be defined as, “the Court’s will quash exercise of
discretionary powers in which there is no reasonable relation between the objective which is
sought to be achieved and the means used to that end”, Proportionality is an essential facet of
the guarantee against arbitrary state action because it ensures that the nature and quality of
the encroachment on the right is not disproportionate to the purpose of the law 53. The
proportionality principle for the infringement of Right to privacy contains 4 facets54,
(i) The action must be sanctioned by law;
(ii) The proposed action must be necessary in a democratic society for a legitimate
aim;
(iii) The extent of such interference must be proportionate to the need for such
interference;
(iv) There must be procedural gurantees against abuse of such interference.”
In this present case, there is violation of all the four facets of Proportionality which is
required to infringe the Right to Privacy of the individual,
III.3.1. THE ACTION MUST BE SANCTIONED BY LAW:
In order to take any action, the action must be sanctioned by law, the requirement of the Law
to infringe any legal right or a Fundamental Right is ‘the essential’ requirement. In this case
as already substantiated in III.1, there is no law which mandates the use of the app, further
the law must be specific and explicit with respect to the rights it seeks to infringe, the basis of
infringement, the procedural safeguards that it establishes. In the instant case there is no law
53
54
Ibid.
20
which fulfils all the above-mentioned mandates. DMA, 2005 cannot be a law as it does deal
with any of the above-mentioned provisions, thus when there is no proper legislative
authority the mandatory use of the app cannot be imposed.
III.3.2.THE PROPOSED ACTION MUST BE NECESSARY IN A DEMOCRATIC
SOCIETY FOR A LEGITIMATE AIM;
According to this facet, the government, there must be a a rationale relationship between the
means and the end i.e, the action taken by the state to meet the legitimate aim and there must
be a balance between the extent to which the rights are infringed and the State’s legitimate
aim. In this particular case, there is a constant survillance of the data of the Indivudual which
which is in no way nexus with the object sought to be achieved. The object sought to be
achieved in this particular case is contact tracing, but the Government to coercively share the
sensitive personal information it must establish a compelling interest, demonstarate the
measures taken will serve the goal, and provide adequate safeguards for the misuse 55, in this
particular casse the Govt in the name of Contact Tracing is doing a constant state survailance
on the indivdual which cannot be a compelling interest, as it violates the Right to Privacy.
The constant state survailence is against Right to Privacy and thus without the authority of
law it cannot be allowed. Liberty is among the core values of the Constitution. Right to
privacy which is an integral part of Right to life ensures freedom from unwarranted state
intervention. The Constant state surveillance amounts to unwarranted state intervention,
which is against the liberty of the individual, and does not serve any legitimate object which
is sought to achieved. There cannot be any balance between the Constant Surveillance as the
extent to which the rights are infringed and the State’s legitimate aim, there is no rational
nexus between the extent of the Right infringed and the object it is sought to achieve, as the
balance is disproportionate to the aim of the Policy.
III.3.3.THE EXTENT OF SUCH INTERFERENCE MUST BE PROPORTIONATE

TO THE NEED FOR SUCH INTERFERENCE:
This is the nessecity principle, according to which it must be the least restrictive alternative.
In this particular case the Collection of excessive information than what is requires, and the
use of GPS , which gives the location of the induvidual constantly is against the necessity
principle. In the case of IAMAI V. Union of India56, the court thus substantiated the necessity
55
Gobind v. State of Madhya Pradesh and Ors., (1975) 2 SCC 148.
56
IAMAI V. Union of India (2020) SCC Online 275.
21
doctrine, held that the necessity stage, the government must adapt least restrictive alternative
that can adequtely serve the state’s purpose, if there is less restrictive alternatives to impinged
measure exist, then the State bears the burden of demostrating, through evidence, that (a) it
has considered these alternatives (b) it has found them to be wanting, leaving it with no
choice but to adopt the impunged measure. In this case, the collection of age, profession and
other sensitive details instaed of only name, through which DiD can be made and further the
collection of the location information cannot be a least alternative method as there exists
other methods such as cellular triangulation, which is a technology that uses multiple cell
towers to track a phone’s location by measuring the time dealy that a signal takes to return
back to the towers from the phone or Unstructred supplementary Service Data (USSD).
Similar applications like Singapore’s TraceTogether, France’s StopCovid, Australia’s
COVIDSafe operate on bluetooth only. The purpose of the Go Corona appis to only inform a
user if they came in contact with someone who has been tested positive for Covid. This
purpose can be served by Bluetooth tracing mechanism only, seeking access to location is not
need at all. In the case of K.S. Puttaswamy v. Union of India,57 the mandatory linking of bank
accounts with Aadhar was struck down precisely on the basis that there existed less
alternatives, and that the government failed to provide any reasons why thy had not been
considered. In the case at hand, there is no possible explanation to show why it has chosen
more intrusive data collecting app over a less intrusive alternative (that exists) thus it is in no
sense a constitutionally justified decision. Hence, the extent of interference is not
proportionate to the need of such interference.
III.3.4. THERE MUST BE PROCEDURAL GURANTEES AGAINST ABUSE OF

SUCH INTERFERENCE: In this case the Government does not in any way as shown any
kind of procedural safeguards or the terms and conditions of the app does not specify the
same. Thus it is violative of this facet of protionality principle.
Hence it is humbly submitted efore the Hon’ble Court that there is excessive intrusion of
right to privacy, and the same falls foul to the proportionality principle laid doen by this
Hon’ble Court.
57
K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1.
22
Hence it is most humbly submitted beofre the Hon’ble Court that, assertive containment
staratergies do not require Govt. to be completely ignorant of other rights, nor do they require
any kind of inaction for the violation of the Right to Privacy of the Indivudals. There should
be balance of Rights, especially when it comes to Privacy which has gained such
International recognition. This becomes even more important when institutionalisation of
sensitive personal information survellience and the same can only be done by the existence of
a law and also the Govt. should frame policies which balances the Right. In the present case
as shown above there is excessive intrusion by the State in the Right to Privacy, and hence in
the name of public health the Right to Privacy cannot be infringed without proper law or
procedural safeguardes.
23
PRAYER
Wherefore, in the light of the facts stated, arguments advanced and authorities cited, it is most
humbly prayed and implored before the Hon’ble Supreme Court of India, that it may be
graciously pleased to adjudge and declare that:
1. The Public Interest Litigation is maintainable and the petitioner has the locus
standi to approach the Court.
2. The ‘Go Corona’ app infringes Right to Privacy and thus the mandatory
imposition of the app is unconstitutional as it is violative of Articles 14, 19 and
21 of the Constitution.
3. The Right to Health cannot be prioritised over Right to Privacy in this case as the
app fails to pass the tests of Proportionality.
AND/OR
Pass any other order that it may deem fit in the favour of the petitioners to meet the ends of
equity, justice and good conscience. For this act of Kindness, the petitioners shall duty bound
forever pray.
COUNSELS FOR THE PETITIONER
24

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JSSLC INTRA-COLLEGIATE MOOT COURT COMPETITION, 2020-2021.

Team Code: T-18

JSSLC INTRA-COLLEGIATE MOOT COURT COMPETITION, 2020-2021.

BEFORE THE HON’BLE

PUBLIC INTEREST LITIGATION

W.P. (CIVIL) NO. ___ OF 2021.

WRITTEN SUBMISSION ON BEHALF OF THE PETIOTIONER

Counsel for Petitioner PETITIONER

2. LIST OF ABBREVIATIONS iii

4. STATEMENT OF JURISDICTION viii

6. ISSUES FOR CONSIDERATION x

AIR All India Reporter

DiD Unique Digital ID

GPS Global Positioning System

NIC National Informatics Centre

Ors. and Anr. Others

PIL Public Interest Litigation

PMO Prime Minister’s Office

PPE Personal Protective Equipment

SCC Supreme Court Cases

SCJ Supreme Court Journal

SCR Supreme Court Reports

Severe acute respiratory syndrome COVID-19

U.O. I Union of India

U.P. Uttar Pradesh

u/a Under Article

1. Disaster Management Act, 2005.

SL.NO NAME OF THE CASE CITATION

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

2 Bennett Coleman & Co v. Union of India. (1972) 2 SCC 788.

3 Bhaduva Mukta Moarcha v. Union of India AIR 1984 SC 812.

4 Bijoe Emmanuel v. State of Kerala AIR 1987 SC 748.

5 Chintaman Rao v. State of Madhya Pradesh AIR 1951 SC 118

6 Consumer Education and Research Centre v. AIR 1995 SC 922.

8 IAMAI V. Union of India (2020) SCC Online 275.

9 Justice K S Puttaswamy and other v. UOI AIR 2017 SC 4161

10 K.S. Puttaswamy v. Union of India. (2019) 1 SCC 1

11 Kharak Singh v. State of UP. AIR 1963 SC 1295

12 Maneka Gandhi v. Union of India AIR 1978 SC 597

13 Mr. X v. Hospital Z. (1998) 8 SCC 296

14 Omkumar v. Union of India AIR 2000 SC 3689.

15 People’s Union for Civil Liberties v. Union of (1997) 1 SCC 301

16 R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632,

17 Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225.

18 Ramlila Maidan Incident v. Home Secretary, (2012) 5 SCC 1

20 S P Gupta v. Union of India AIR 1982 SC 149

21 Selvi v. State of Karnataka, AIR 2010 SC 1974.

22 Shreya Singhal v. Union of India (2015) 5 SCC 1

23 State of M.P. v. Thakur Bharath Singh. AIR 1967 SC 1170

24 State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75

25 Supreme Court Advocates on Record (2016) 5 SCC 1

28 Unni Krishnan v. State of A.P. (1964) 1 SCR 332.

Wherein, Article 32 reads as under:

I. WHETHER THE PETITIONER HAS THE LOCUS STANDI TO APPROACH THE

II. WHETHER THE APP INFRINGES THE RIGHT TO PRIVACY UNDER

III. WHETHER THE RIGHT TO PRIVACY PRECEDES THE RIGHT TO HEALTH.

I.1 LOCUS STANDI

32. “Remedies for enforcement of rights conferred by this Part

“where a legal wrong or a legal injury is caused to a person or to a determinate class of

I.2 Violation of Article 14 of The Constitution.

I.3 Violation of Article 19(1)(d) of the Constitution.

1.4 Violation of Article 21 of the Constitution.

“ 1) There must be a law in existence to justify an encroachment on privacy by the state.

2) There must be a legitimate state aim.