TEAM CODE – SM14

3RD INTRA MOOT COURT COMPETITION, 2023

STAREX UNIVERSITY,HARYANA

Before

THE HON’BLE SUPREME COURT OF ARVARTYA

IN THE MATTER OF
THE RIGHT TO BE FORGOTTEN

...............................................................................................................................................PETITIONER

V.

STATE OF PUNJAB …. RESPONDENT

Memorial Submitted to the Registry of the Hon’ble Supreme Court of India

MEMORIAL ON THE BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

 LIST OF ABBREVIATIONS.........................................................................................................3
 INDEX OF AUTHORITIES...........................................................................................................4
 TABLE OF CASES..........................................................................................................................5
 STATEMENT OF JURISDICTION…..........................................................................................6
 TIMELINE.......................................................................................................................................7
 STATEMENT OF FACTS..............................................................................................................8
 ISSUES RAISED..............................................................................................................................9
 SUMMARY OF ARGUMENTS...................................................................................................10
 ARGUMENTS ADVANCED…..............................................................................................11-21
I. WHETHER RIGHT TO BE FORGOTTEN CAN BE SEEN AS AN ESSENTIAL ASPECT
IN THE MODERN-DAY TECH ORIENTED AND IT DRIVEN WORLD AND BE
GRANTED THE STATUS OF A FUNDAMENTAL RIGHT WITHIN THE SCOPE AND
BOUNDARIES OF RIGHT TO LIFE AND PERSONAL LIBERTY?

II. WHETHER THE SOCIAL MEDIA PLATFORM FAPBOOK AND THE WEBSITE
OBSCENEVIDEOS.COM BE DIRECTED TO REMOVE ANY OBJECTIONABLE
CONTENT POSTED AND AVAILABLE ON THE SAID PLATFORMS INVOLVING OR
INCLUDING MS. KRITI?

III. WHETHER THERE IS A NEED TO SENSITIZE THE UNPRECEDENTED ESCALATION

OF INSENSITIVE BEHAVIOR OF THE SOCIAL MEDIA AND OTHER WEB
PLATFORMS FROM REMOVAL OF OBJECTIONABLE CONTENT CONCERNING
VICTIMS OF CYBER-CRIMES?

IV. TO WHAT EXTENT DOES RIGHT TO PRIVACY AND RIGHT TO BE FORGOTTEN

DIFFER FROM EACH OTHER AND WHETHER RIGHT TO BE FORGOTTEN COULD
BE INCLUDED WITHIN THE DOMAIN AND SCOPE OF RIGHT TO PRIVACY OR
NOT?

 PRAYERS.......................................................................................................................................22

MEMORIAL ON THE BEHALF OF PETITIONER

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LIST OF ABBREVIATIONS

1
IPC Indian Penal Code

2
IT Information Technology

3
FIR First Information Report

4
Meity Ministry of Electronics and Information Technology

5
Info. Information

6
Ors. Others

7
Hon’ble Honourable

8
& And

9
Sect. Section

10
SCC Supreme Court Cases

MEMORIAL ON THE BEHALF OF PETITIONER

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INDEX OF AUTHORITIES

STATUES AND BOOKS

1. The Constitution of India 1950

2. Indian Penal code 1860

3. Information Technology Act, 2000

4. Information Technology (Intermediaries Guidelines) Rules, 2011

Information Technology (Intermediaries Guidelines and Digital Media Ethics

5.
Code) Rules, 2021

6. Indian Penal Code S.N. Mishra 22nd edition

7. Cyber Law Aparna Vishwanathan Lexis Nexis

8. V.N. Shukla’s Constitution of India Mahendra Pal Singh 13th Edition

9. D.D. Basu Constitutional law

10. A.K. Jain Constitutional law

11. J.N. Pandey Constitutional law

JOURNALS REFERRED

1. Manupatra

2. SCC

3. Indian Kanoon

4. Legal Services

MEMORIAL ON THE BEHALF OF PETITIONER

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TABLE OF CASES

1. Kharak Singh v. State of UP (1964)

2. Justice K.S. Puttaswamy (Retd.) and Anr. vs Union of India

3. Zulfiqar Ahman Khan v. M/S Quintillion Business Media Pvt. Ltd. And others

Maneka Gandhi vs. Union of India, AIR 1978 SC 597

4.

5. In Karthick Theodore v. Madras High Court

Google Spain SL v. Agencia Española Protección de Datos, 2010

6.

Jorawer Singh Mundy v. Union of India and Ors.

7.

Dharmaraj Banu Shankar Dave v. State of Gujarat

8.

X vs. Registrar General

9.

Sri Vasunathan v. The Registrar General (2017)

10.

Subranshu Raot v. State of Odisha BLAPL No. 4592 OF 2020

11.

Melvin v. Reid, 112 Cal.App. 285, 297 P. 91 (1931)

12.

13. Jorawer Singh Mundy vs. Union of India & Ors. W.P. (C) 3918/ 2020

State of Punjab v. Gurmeet Singh and Ors.

14.

MEMORIAL ON THE BEHALF OF PETITIONER

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STATEMENT OF JURISDICTION

The Petitioner has submitted their Appeal before the Hon’ble Supreme Court of India:
UNDER ARTICLE 32 OF CONSTITUTION OF INDIA THE PETITIONER HAS FILED THIS
PETITION AND HAS VALID JURISDICTION UNDER THE HONOURABLE COURT.

THE PRESENT MEMORANDUM SET FORTH THE FACTS, CONTENTIOUS AND ARGUMENT
IN THE PRESENT CASE.

MEMORIAL ON THE BEHALF OF PETITIONER

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TIMELINE

DATE EVENT
Jitesh went to Kriti’s house, committed rape
25 December 2021 on her, and recorded the whole incident on
his cell phone.
Kriti warned him that she is going to inform
her parents about the incident and would
25, 27&30 December 2021
adopt legal ways to restore her dignity and
modesty.
Jitesh repeatedly kept on threatening Kriti
that he would publish the photographs and
1 January 2022 – 15 February 2022 videos of the rape on social media and
pornography websites and so maintained
physical intimacy several times.
Jitesh once again called Kriti to meet her at
their common friend’s place, to which Kriti
denied at the very initial stage.
By the evening, Jitesh made a fake profile
1 March 2022 of Kriti on Fapbook and added around 1,000
people to it, and published obscene,
objectionable, salacious, and lewd photos of
Kriti on the said profile of the incidence of
rape committed on 25 December 2021.
In the morning, Jitesh published the videos
2 March 2022 of the incident on the pornographic website
‘obscenevideos.com’.
Kriti got to know about the publication of
10 March 2022
those photos and videos.
Kriti was suspended from her college,
‘Shanti Niketan College’. To save their
15 March 2022
college’s image and reputation the college
suspended her.
Kriti along with her close friends registered
20 March 2022
FIR at P.S Sardoolpur, Patiala.
Jitesh approached Punjab & Haryana HC
18 March 2022
for anticipatory bail, which was denied.
Kriti approached the SC with a prayer that
necessary directions be issued to the
concerned social media platform and the
website to delete all the photos and videos
20 April 2022
involving her and to recognize the ‘Right to
be forgotten” as an explicit Fundamental
Right within the scope and ambit of Article
21 of Indian Constitution.

MEMORIAL ON THE BEHALF OF PETITIONER

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STATEMENT OF FACTS

Relationship between Kriti and Jitesh

Kriti and Jitesh were classmates from school to college while pursuing their degree.
Rape incident
On 25.12.2021 Jitesh went to home of Kriti in order to inform about a forthcoming event which he
wanted to participate in, along with her. Finding Kriti home alone he committed rape upon her and
recorded it. Kriti warned him that she's going to inform and intimate her parents and will take legal step to
restore her dignity and modesty.
Jitesh took advantage of Kriti’s situation
Jitesh gave life threats and said he would publish the photos and video on social media and pornographic
websites. Kriti became scared and so he took advantage by making physical intimacy many times
between 01.01.2022 till 15.02.2022.
Fake profile
On 01.03.2022 he called her at common friend's place to which Kriti denied. Jitesh in anger made fake
profile of Kriti and published her obscene photographs on Fapbook. On 02.03.2022 he uploaded videos
on obscenevideos.com, within a week both of these things went viral. Kriti suffered mental trauma and
agony. Parents of her socially boycotted her and Shanti Niketan college suspended her.
FIR by Kriti
On 20.03.2022 with the help of her some close friends, Kriti filed an FIR against Jitesh. FIR was lodged
under sect.s 376, 2922, 465, 469, 509 of IPC,1860 and 66, 66(c), 67, 67 (a) of IT Act,2000.
Bail denied
Jitesh absconded since FIR and also earlier before FIR he was denied anticipatory bail by High court of
Punjab and Haryana.
Kriti went to SC
Kriti acknowledging the fact that the FIR in itself wouldn't restore her dignity so she approached Supreme
court for directing social media platforms and website to delete all the media of her and to recognise right
to be forgotten as fundamental right under Article 21 of Constitution.

MEMORIAL ON THE BEHALF OF PETITIONER

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ISSUES RAISED

ISSUE1: WHETHER RIGHT TO BE FORGOTTEN CAN BE SEEN AS AN ESSENTIAL ASPECT IN

THE MODERN-DAY TECH ORIENTED AND IT DRIVEN WORLD AND BE GRANTED THE
STATUS OF A FUNDAMENTAL RIGHT WITHIN THE SCOPE AND BOUNDARIES OF RIGHT TO
LIFE AND PERSONAL LIBERTY?

ISSUE2: WHETHER THE SOCIAL MEDIA PLATFORM FAPBOOK AND THE WEBSITE
OBSCENEVIDEOS.COM BE DIRECTED TO REMOVE ANY OBJECTIONABLE CONTENT
POSTED AND AVAILABLE ON THE SAID PLATFORMS INVOLVING OR INCLUDING MS.
KRITI?

ISSUE3: WHETHER THERE IS A NEED TO SENSITIZE THE UNPRECEDENTED ESCALATION

OF INSENSITIVE BEHAVIOR OF THE SOCIAL MEDIA AND OTHER WEB PLATFORMS FROM
REMOVAL OF OBJECTIONABLE CONTENT CONCERNING VICTIMS OF CYBER-CRIMES?

ISSUE4: TO WHAT EXTENT DOES RIGHT TO PRIVACY AND RIGHT TO BE FORGOTTEN

DIFFER FROM EACH OTHER AND WHETHER RIGHT TO BE FORGOTTEN COULD BE
INCLUDED WITHIN THE DOMAIN AND SCOPE OF RIGHT TO PRIVACY OR NOT?

MEMORIAL ON THE BEHALF OF PETITIONER

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SUMMARY OF ARGUMENTS

I. WHETHER RIGHT TO BE FORGOTTEN CAN BE SEEN AS AN ESSENTIAL

ASPECT IN THE MODERN-DAY TECH ORIENTED AND IT DRIVEN WORLD
AND BE GRANTED THE STATUS OF A FUNDAMENTAL RIGHT WITHIN THE
SCOPE AND BOUNDARIES OF RIGHT TO LIFE AND PERSONAL LIBERTY?
It is humbly submitted before the hon’ble court that Right to be Forgotten be included in and
be recognised as a fundamental right under Article 21 of Constitution. As Right to Privacy and
Right to live with Human Dignity violation brings the onset of the requirement of right to be
forgotten. As it has been held in many case laws like K.S. Puttaswamy vs Union of India that
right to be forgotten is a fundamental right under Article 21 and Data Protection Bill 2019 also
enlists this right under section 20. Hence, it is an intrinsic part of Article 21.

II. WHETHER THE SOCIAL MEDIA PLATFORM FAPBOOK AND THE WEBSITE
OBSCENEVIDEOS.COM BE DIRECTED TO REMOVE ANY OBJECTIONABLE
CONTENT POSTED AND AVAILABLE ON THE SAID PLATFORMS INVOLVING
OR INCLUDING MS. KRITI?
It is humbly submitted before the Hon’ble court that Social media and websites be directed to
remove the objectionable content. As it has violated right to privacy and reputation (Human
dignity) under Article 21. And under the provisions of IT Act, 2000 section 67A and 66E they
must be removed. And also, they violate IT Rules 2021as they had permitted the outflow such
insensitive and illegal media on their platforms. Pornographic material transmitting also
unlawful as websites like that must be banned also. These are also not qualified for
intermediaries immunity under section 79 of IT Act 2000 as they does not fulfil the
benchmark users to be considered under it.

III. WHETHER THERE IS A NEED TO SENSITIZE THE UNPRECEDENTED

ESCALATION OF INSENSITIVE BEHAVIOR OF THE SOCIAL MEDIA AND
OTHER WEB PLATFORMS FROM REMOVAL OF OBJECTIONABLE CONTENT
CONCERNING VICTIMS OF CYBER-CRIMES?
It is humbly submitted before the Hon’ble court that social media platforms and websites be
sensitized and it is much needed as they had no system for verification of users and to access
fake profile and delete the objectionable content to stop their widespread. They must be
regulated for Privacy of users and data safeguard. They must be sensitized for their insensitive
behaviour which they have for the users and they does not take any steps to remove the media
and does not actively participate in removing objectionable content.

IV. TO WHAT EXTENT DOES RIGHT TO PRIVACY AND RIGHT TO BE

FORGOTTEN DIFFER FROM EACH OTHER AND WHETHER RIGHT TO BE
FORGOTTEN COULD BE INCLUDED WITHIN THE DOMAIN AND SCOPE OF
RIGHT TO PRIVACY OR NOT?
It is humbly submitted before the honourable court that Right to privacy and right to Forgotten
are interrelated to each other and on the violation of the privacy only the invocation of the
Forgotten right is established. In KS Puttaswamy case also, the court had held right to privacy
as essential nature of right to be Forgotten. Several times High court and Supreme court has
privacy essential of Forgotten and had somewhat favoured the falling of it in domain of
Privacy.

MEMORIAL ON THE BEHALF OF PETITIONER

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ARGUMENTS ADVANCED

I. WHETHER RIGHT TO BE FORGOTTEN CAN BE SEEN AS AN ESSENTIAL

ASPECT IN THE MODERN-DAY TECH ORIENTED AND IT DRIVEN WORLD
AND BE GRANTED THE STATUS OF A FUNDAMENTAL RIGHT WITHIN THE
SCOPE AND BOUNDARIES OF RIGHT TO LIFE AND PERSONAL LIBERTY?

It is humbly submitted before this Hon’ble Court that; Yes, it is an essential aspect and be
granted the status of the fundamental right as it is correlated with the two other essential and
significant Fundamental rights i.e. Right to Privacy and Right to Dignified Life or Right to
Live with Human Dignity. (Right to life embodied in Article 21 of the Indian Constitution, is
not merely a physical right but it also includes within its ambit, the right to live with human
dignity.1 )

Some people hold that all human beings have a special type of dignity which is the basis for:

(1) the obligation all of us have not to kill them,

(2) the obligation to take their well-being into account when we act, and

(3) even the obligation to treat them as we would have them treat us.2

Dignity is the right of a person to be valued and respected for their own sake, and to be treated
ethically. And the above rights of Kriti were ceased which requires

This new rule of Right To Eraser was introduced by the Personal Data Protection Bill 2019.
According to this bill, the right to eraser is the right of a person to delink, limit, correct, or
even delete any info. which the user considers to be personal, whose continued presence on the
internet would prove to be embarrassing, misleading or irrelevant.
Sect. 20 of the Bill granted any entity has the right to limit or protect the prolonged discovery
of their private data when such records;

1. have provided the aim under which it was obtained, or are no longer required for any such
purpose;
2. have been made with the permission of the person, which approval has now been withdrawn;
or
3. were made in contravention of the PDP Bill or any other law in force.

Yes, the right to be forgotten must be granted the status of fundamental right within the scope
and boundaries of the Right to Life and Personal Liberty as it is essential in the modern-day
tech-oriented and it drives the world because, in this era of technology where search engine
results can define individual identity, info. that lingers in the online sphere can sometimes have
overwhelmingly negative consequences. In modern society, the focus is placed on
1
Maneka Gandhi vs. Union of India, AIR 1978 SC 597
2
https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1467-9337.2008.00386.x
MEMORIAL ON THE BEHALF OF PETITIONER
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remembering rather than forgetting; it is people's right that what about them should be on the
internet or what should not. It is important in the age of the internet because there are all sorts
of search histories that are popping up and when people surf through any content, then
sometimes search results are manipulated and results that harm the reputation of a person.
These days the perception created on the internet lingers much wider than the actual reality
represents. Moreover, there have been cases where a person was accused of ‘n’ number of
crimes and after a few years, it was found that the accused person has been pronounced not
guilty, but whatever articles were published about his crime and role that he may have played
continued to haunt him forever and ever. The attribution of being a criminal without even
committing an offense imposes a large impact on an individual’s life. There have been issues
where people upload obscene or vulgar videos on the internet which emotionally hurt the
sentiments of other people throughout his/her life; because they don’t have access to get that
data deleted permanently. The concept of the Right to be Forgotten ultimately balances the
favor of privacy with the right of individuals. So, it should come under article 21 of the
constitution so that people can file a writ against the violation of their rights. The Right to be
forgotten falls under the scope of an individual’s Right to privacy, which is a fundamental right
under Article 21 of the Constitution of India. But, the position on whether the right to be
forgotten is a fundamental right in India is still not very clear. However, this right can become
a statutory right due to the B.N Shri Krishna committee’s recommendation under the Personal
Data Protection Bill, 2019; which is yet to be passed by Parliament; as Sect. 20 under Chapter
V of this draft bill titled “Rights of Data Principal” expressly recognizes this right.
“The default of forgetting has changed into a default of remembering. Personal data is now a
valuable currency being used to fund free services like social networks, news sites, and search
engines. A damaged or mischaracterized virtual identity can have long-lasting consequences
for social status and future employment. With individual actions facing being shared with an
unlimited global audience, the individual may alter their participation in social and public life.
An effective illustration of this is the emergence of “revenge porn,” for example, where a
disgruntled ex-partner gathers intimate photos or videos and publicly uploads the content to
the Internet. Giving victims such a right award, an effective remedy as opposed to solely
prosecutions.

There are several judgments of the High Court and the Supreme Court that clearly states that
the right to be forgotten should be given the status of a fundamental right. The ‘right to be
forgotten is the right to have publicly available personal info. removed from the internet,
search, databases, websites, or any other public platforms, once the personal info. in question
is no longer necessary, or relevant.

The first known instance where the Right to Be Forgotten was used was in 2014. In Spain, a
man asked Google to remove links to an old newspaper article that spoke about his previous
bankruptcy. Since his debts were paid in full there was little relevancy to that article online. As
a result, the European Court of Justice ruled against Google and declared that under certain
circumstances a European Union citizen could have his personal info. removed from the
public database. Of course, this ruling does not apply outside the borders of the EU.3

The question of the privacy of citizens arose for the first time in India was in the case of
Kharak Singh v. State of UP (1964)4 where the court declared that the Right to Privacy is an
absolute right available to the citizens of the country under Article 21 which couldn’t be taken

3
Google Spain SL v. Agencia Española Protección de Datos, 2010
4
Kharak Singh v. State of UP (1964)
MEMORIAL ON THE BEHALF OF PETITIONER
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away from them in any circumstance. It also held that this includes the ‘Right to be let alone
and to ensure public safety. No one is allowed to publish the personal info. of an individual
without their permission subject to certain reasonable restrictions.

In Justice K.S. Puttaswamy (Retd.) and Anr. vs Union of India 5, the Supreme Court held
that the Right to Privacy is a fundamental right and it will be included in the Right to Life
enshrined under Article 21 of the Constitution. The Supreme Court observed that: the right of
an individual to exercise control over his or her data and to be able to control his/her own life
would also encompass his right to control his existence on the Internet. the Supreme Court in
the celebrated K.S. Puttaswamy vs. Union of India (2017) 10 SCC 1 case regarding a citizen's
right to be forgotten commented that “If we were to recognize a similar right, it would only
mean that an individual who is no longer desirous of his data to be processed or stored, should
be able to remove it from the system where the personal data/info. is no longer necessary,
relevant, or is incorrect and serves no legitimate interest”

In Zulfiqar Ahman Khan v. M/S Quintillion Business Media Pvt. Ltd. And others 6,
Zulfiqar Ahman Khan demanded the removal of articles written against him on the news
website ‘The Quint’. The Delhi High Court observed the Right to be Forgotten and the right to
be left alone as an integral part of an individual's existence.

In Karthick Theodore v. Madras High Court7

The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this
country by Article 21. It is a “right to be let alone”. None can publish anything concerning the
above matters without his consent — whether truthful or otherwise and whether laudatory or
critical. If he does so, he would be violating the right to privacy of the person concerned and
would be liable in an action for damages.

II. WHETHER THE SOCIAL MEDIA PLATFORM FAPBOOK AND THE WEBSITE
OBSCENEVIDEOS.COM BE DIRECTED TO REMOVE ANY OBJECTIONABLE
CONTENT POSTED AND AVAILABLE ON THE SAID PLATFORMS INVOLVING
OR INCLUDING MS. KRITI?

It is humbly submitted before the Hon'ble Supreme Court that Yes; Social media platforms
and websites should be directed to remove any objectionable content as even if Right to be
Forgotten is in question to be declared as a fundamental right or not but there is the clear
violation of the Right To Privacy which is a fundamental right.

The right to privacy in social media has been protected in India even before privacy was even
recognized as a fundamental right. The Information Technology Act, 2000 is considered
comprehensive legislation dealing exclusively with the aspects of privacy in the realm of
cyberspace.

5
Justice K.S. Puttaswamy (Retd.) and Anr. vs Union of India (2017) 10 SCC 1
6
Zulfiqar Ahman Khan v. M/S Quintillion Business Media Pvt. Ltd. And others CS (OS) 642/2018
7
Karthick Theodore v. Madras High Court, 2021 SCC OnLine Mad 2755
MEMORIAL ON THE BEHALF OF PETITIONER
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The Information Technology (Due Diligence Observed by Intermediaries Guidelines) Rules,

2011, say that intermediaries - which include telecommunication companies, internet service
providers (ISP), blogging sites, search engines, as well as cyber cafes - can remove
"objectionable" content without notifying the user.8

It also relied upon the new Info. Technology (Intermediary Guidelines and Digital Media Ethics
Code) Rules, 2021; which mandates intermediaries, including search engines, to remove or
disable access to content upon receipt of a complaint made by any individual in relation to any
content that shows the individual in partial or full nudity or in some sexual act or conduct.
The European Court of Justice ordered Google to remove “inadequate, irrelevant, or no longer
relevant” data from its search results when a citizen requested it. This decision was given
in Google Spain SL v. Agencia Española Protección de Datos, 2010 9. This decision was
crucial in enforcing EU data protection norms and regulations, particularly the EU’s General
Data Protection Regulation. The ruling is termed the “right to be forgotten” by the public.

Websites containing pornographic websites are all banned in India under 67 (A) of the IT Act.
Which is as follows:

‘Punishment for publishing or transmitting of material containing sexually explicit act,

etc., in electronic form.’ – Whoever publishes or transmits or causes to be published or
transmitted in the electronic form any material which contains sexually explicit act or conduct
shall be punished on first conviction with imprisonment of either description for a term which
may extend to five years and with fine which may extend to ten lakh rupees and in the event of
second or subsequent conviction with imprisonment of either description for a term which
may extend to seven years and also with fine which may extend to ten lakh rupees.

And 66 (E) : Punishment for violation of privacy - Whoever, intentionally or knowingly

captures, publishes or transmits the image of a private area of any person without his or her
consent, under circumstances violating the privacy of that person, shall be punished with
imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or
with both.

And it is also punishable under Section 294 of IPC, 1860 :

Obscene acts and songs.-- Whoever, to the annoyance of others,

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place,

shall be punished with imprisonment of either description for a term which may extend to
three months, or with fine, or with both.]

These types of intermediaries should be banned in India completely.

8
https://cis-india.org/news/objectionable-content-can-be-removed
9
Google Spain SL v. Agencia Española Protección de Datos, 2010
MEMORIAL ON THE BEHALF OF PETITIONER
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(Section 69A) Power to issue directions for blocking for public access of any information
through any computer resource -

(1) Where the Central Government or any of its officer specially authorised by it in this behalf
is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity
of India, defence of India, security of the State, friendly relations with foreign States or public
order or for preventing incitement to the commission of any cognizable offence relating to
above, it may subject to the provisions of sub-section (2) for reasons to be recorded in writing,
by order, direct any agency of the Government or intermediary to block for access by the
public or cause to be blocked for access by the public any information generated, transmitted,
received, stored or hosted in any computer resource.

(2) The procedure and safeguards subject to which such blocking for access by the public may
be carried out, shall be such as may be prescribed.

(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall
be punished with an imprisonment for a term which may extend to seven years and shall also
be liable to fine.

European Union has framed General Data Protection Regulation (GDPR) which governs the
manner in which personal data can be collected, processed and erased. Any individual has a
right to request for erasing the personal data for various reasons which included being not in
line with Article 6(1) which is for lawfulness, a case where the interests of the controller of the
data are being overshadowed by the individual’s interest and fundamental right and duties,
where the protection of personal data is necessary. Due to these reasons, Article 17 of the Act
defines the situation where an individual can request and exercise their right for erasing their
data. In addition to this, Article 5 of the GDPR requires data controllers to take every
reasonable step to ensure that data which is inaccurate. The data subject shall have the right to
obtain from the controller regarding the erasure of personal data concerning him or her
without undue delay and the controller shall have the obligation to erase personal data without
undue delay, "erased or rectified without delay". Every single time, it cannot be expected that
the victim shall approach the court to get the inaccurate data or info. erased which is within the
control of data controllers such as Facebook or Twitter or any other social media platforms.

“Meity in compliance of the said (Uttarakhand High Court) order read along with rule 3(2)(b)
of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rules, 2021, and in view of certain obscene material available in the below-mentioned website
that tarnish the image of modesty of women, has directed to immediately take down (block)
the … websites/URLs,” the Dot order dated September 24 said.10

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
Part II 3 (1) Due diligence by an intermediary: An intermediary, including social media
intermediary and significant social media intermediary, shall observe the following due
diligence while discharging its duties, namely:—

10
https://indianexpress.com/article/technology/tech-news-technology/indian-govt-porn-websites-ban-full-list-8181130/
MEMORIAL ON THE BEHALF OF PETITIONER
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(a) the intermediary shall prominently publish on its website, mobile based application or
both, as the case may be, the rules and regulations, privacy policy and user agreement for
access or usage of its computer resource by any person;

(b) the rules and regulations, privacy policy or user agreement of the intermediary shall inform
the user of its computer resource not to host, display, upload, modify, publish, transmit, store,
update or share any info. that,—

(i) belongs to another person and to which the user does not have any right;

(ii) is defamatory, obscene, pornographic, paedophilic, invasive of another‘s privacy,

including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or
ethnically objectionable.

Even if the objectionable info. is deleted by the platforms and websites there is still a strong
possibility of its reoccurrence on any other platform etc.

In Justice K.S. Puttaswamy (Retd.) and Anr. vs Union of India, the Supreme Court held that
the Right to Privacy is a fundamental right and it will be included in the Right to Life
enshrined under Article 21 of the Constitution. The Supreme Court observed that:

“The right of an individual to exercise control over his personal data and to be able to control
his/her own life would also encompass his right to control his existence on the Internet.”

In Subranshu Raot v. State of Odisha, the Orissa High Court examined the Right to be Forgotten
as a remedy for the victims of sexually explicit videos or photos often posted on social media for
harassing the victims. Bench observed that the above-stated was the first legal framework which
recognized the need to protect the privacy of personal data, but failed to capture the issue of the
“Right to be Forgotten”. Capturing the images and videos with consent of the woman cannot
justify the misuse of such content once the relation between the victim and accused gets strained
as it happened in the present case. Adding to its observations, Court stated that If the right to be
forgotten is not recognized in matt
If the right to be forgotten is not recognized in matters like the present one, any accused will
surreptitiously outrage the modesty of the woman and misuse the same in the cyber space
unhindered.
Court in regard to the objectionable photos stated that, allowing such objectionable photos and
videos to remain on a social media platform, without the consent of a woman, is a direct affront on
a woman’s modesty and, more importantly, her right to privacy.
The Court stated that, “Indian Criminal Justice system is more of a sentence-oriented system with
little emphasis on the disgorgement of victim’s loss and suffering, although the impact of crime on
the victim may vary significantly for person(s) and case(s)– for some the impact of crime is short
and intense, for others the impact is long-lasting.”

In State of Punjab v. Gurmeet Singh and Ors11 the Supreme Court has held that anonymity can
help protect victims of sexual offence from social ostracism.
11
State of Punjab v. Gurmeet Singh and Ors.
MEMORIAL ON THE BEHALF OF PETITIONER
 17

The question of the privacy of citizens arose for the first time in the case of Kharak Singh v. State
of UP (1964) where the court declared that Right to Privacy is an absolute right available to the
citizens of the country under Article 21 which couldn’t be taken away from them in any
circumstance. It also held that this includes the ‘Right to be let alone’ and to ensure public safety.
No one is allowed to publish the personal info. of an individual without their permission subject to
certain reasonable restrictions.

III. WHETHER THERE IS A NEED TO SENSITIZE THE UNPRECEDENTED

ESCALATION OF INSENSITIVE BEHAVIOR OF THE SOCIAL MEDIA AND
OTHER WEB PLATFORMS FROM REMOVAL OF OBJECTIONABLE CONTENT
CONCERNING VICTIMS OF CYBER-CRIMES?

It is humbly submitted before the hon'ble supreme court that social media be directed firms to
formulate a voluntary verification process for users.
Even if the objectionable info. is deleted by the platforms and websites there is still a strong
possibility that there may be users who would have saved those leaked info. and in future will
surely try to or publish it untraceably by using various means like Virtual private Network.
That’s why there should be sensitization of social media platforms and websites and these
should be compelled to work towards the removal and complete eradication of the sensitive
info. furnished on their platforms and should be directed to make software changes so that the
objectionable info. or media should be prohibited from spreading and eventually getting viral.

If after giving instruction also the platforms and website so insensitive behaviour or lack of
action then they should be punished disregarding the rights of intermediaries under ‘safe
harbour’ protection given to intermediaries under Sect. 79 of the IT Act. In consideration of
above risks also there is a need to sensitize these social media platforms and websites.

Jitesh after this incidence and all law procedures, he still did not delete the post and medias
uploaded by him. And also, his account was not taken in control and terminated by the
websites and social media.

942(E).—In exercise of power conferred by clause (v) of sub-rule (1) of rule 2 of the
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules,
2021, the Central Government hereby specifies fifty lakh registered users in India as the
threshold for a social media intermediary to be considered a significant social media
intermediary.12

(Sect. 79) Exemption from liability of intermediary in certain cases.-

(1) Notwithstanding anything contained in any law for the

time being in force but subject to the provisions of sub-sections
(2) and (3), an intermediary shall not be liable for any third
party information, data, or communication link made available
or hosted by him.

(3) The provisions of sub-section (1) shall not apply if--

(a) the intermediary has conspired or abetted or aided or induced, whether by threats or
promise or otherwise in the commission of the unlawful act;

MEMORIAL ON THE BEHALF OF PETITIONER

 18

12
https://egazette.nic.in/WriteReadData/2021/225497.pdf

MEMORIAL ON THE BEHALF OF PETITIONER

 19

(b) upon receiving actual knowledge, or on being notified by the appropriate Government or
its agency that any information, data or communication link residing in or connected to a
computer resource controlled by the intermediary is being used to commit the unlawful act, the
intermediary fails to expeditiously remove or disable access to that material on that resource
without vitiating the evidence in any manner.

There is no evidence that the platform on which Kriti’s media was uploaded was consisting of
50 lakhs users and so it does not fall in category of intermediaries and sect. 79 of IT Act
cannot be claimed.

DPS MMS case(bazee.com) [Avnish Bajaj Vs. State(NCT) of Delhi (2005) 3 CompLJ 364
Del]

The High Court inter-alia held that prima facie, section 292 IPC was attracted against
'baazee.com', in the facts of the case. However, as the principle of vicarious liability cannot be
applied to a director of a company which (the company) commits an offence under the Indian
Penal Code, 1860, and as there was no offending act directly attributable to the accused
(Avnish Bajaj), he was directed to be discharged with respect to the offence under section 292
I.P.C.

Regarding the applicability of section 67 (unamended) of the I.T. Act, 2000, the High Court
has held that the said offence was prima-facie attracted against 'baazee.com' and as the
principle of vicarious liability (section 85) was applicable to offences under the I.T. Act, 2000,
the accused (Avnish Bajaj) was prima-facie liable.13

IV. TO WHAT EXTENT DOES RIGHT TO PRIVACY AND RIGHT TO BE

FORGOTTEN DIFFER FROM EACH OTHER AND WHETHER RIGHT TO BE
FORGOTTEN COULD BE INCLUDED WITHIN THE DOMAIN AND SCOPE OF
RIGHT TO PRIVACY OR NOT?

It is humbly submitted before the hon'ble supreme court that Right to Privacy and Right to be
Forgotten are interrelated and somewhat fulfils each other.
The violation and breach of Right to Privacy attracts the usage of Right to be Forgotten.
Privacy right falls within its scope and domain as Right to be Forgotten is a remedy to restore
Privacy upto an extent.
As mentioned above Right to privacy breach has only led us to situation of calling out for right
to Forgotten. Right to be Forgotten” actually originated with the case Google Spain vs. Maria
Costa Gonzalez (2014) where Maria Costa argued that when Google search turned up an
auction notice of his repossessed home from back in 1998, that somehow being out there was
a violation of his right to privacy.

Right to be forgotten is in itself a fundamental right required by the citizens.

13
Cyber crimes, electronic evidence and investigation Nabhi Publication Author - Vivek Sood 2010 Edition ISBN 978-81-
7274-707-7
Avnish Bajaj Vs. State (NCT)of Delhi (2005) 3 CompLJ 364 Del
MEMORIAL ON THE BEHALF OF PETITIONER
 20

The Supreme Court in K.S. Puttaswamy (Privacy- 9J.)has held right to be let alone as part of
essential nature of 6(2017) 10 SCC 1 privacy of an individual. The relevant paras of the
judgment are as under: "XXXXX R. Essential nature of privacy.

In Subranshu Raot v. State of Odisha14, Court in regard to the objectionable photos stated that,
allowing such objectionable photos and videos to remain on a social media platform, without
the consent of a woman, is a direct affront on a woman’s modesty and, more importantly, her
right to privacy.

The Court stated that, “Indian Criminal Justice system is more of a sentence-oriented system
with little emphasis on the disgorgement of victim’s loss and suffering, although the impact of
crime on the victim may vary significantly for person(s) and case(s)– for some the impact of
crime is short and intense, for others the impact is long-lasting.”

As of July 2021, the Supreme Court of India has not dealt with the case related to the Right to
be forgotten and only various High Courts have heard such cases and most of them recognized
the right to be forgotten as an integral facet of the right to privacy. Although, the Right to be
forgotten is not expressly recognized as a fundamental right in India by the Supreme Court;
however, with the passing of the Personal Data Protection Bill, 2019, it will become a
statutory right and a person will in India, the first question previously came up before the
judiciary in Dharamraj Bhanushankar Dave v. State of Gujarat 15, before the Gujarat High
Court. In its judgment the court did not acknowledge the so-called “right to be forgotten”.
Here, in this case the petitioner had been charged with criminal conspiracy, murder, and
kidnapping, among others and was acquitted by the Sessions Court, which was further
supported by a Division Bench of the Gujarat High Court. The petitioner had claimed it.

It is humbly submitted before the hon'ble supreme court that privacy means the condition or
state of being free from public attention to intrusion inter or interference with one's acts or
decisions. The Right to Privacy means the Right to personal autonomy and the Right of a
person and person's property to be free from unwarranted public scrutiny or exposure.It is
further submitted that the hon'ble supreme court in 2017 in a landmark case of Puttaswamy v.
Union of India case the right to privacy a fundamental right. It was held in this case that 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. In the same
case of Puttaswamy, the Supreme Court recognized the right to be forgotten as part of the right
to life under Article 21.

It is humbly submitted that the first case in India to deal with the concept of the right to be
forgotten was the case of Dharmaraj Bhanushankar Dave v. State of Gujarat in the
Gujarat High Court. The Court held in the Petitioner9s favor and ordered that the name be
redacted from the cause title and the body of the order.

It is humbly submitted that the Delhi High Court in Zulfiqar Ahman Khan v. Quintillion
Business Media Pvt. Ltd has held that the right to be forgotten and right to be left alone are
inherent aspects of the right to privacy, and restrained republication of these news reports.
Moreover, the Karnataka High Court in Vasunathan v. The Registrar General, High Court
of Karnataka has acknowledged the right to be forgotten, keeping in line with the trend in the
Western countries where it is followed as a matter of rule.

14
Subranshu Raot v. State of Odisha BLAPL No. 4592 OF 2020
15
Dharamraj Bhanushankar Dave vs State Of Gujarat & 5 on 19 January, 2017 C/SCA/1854/2015

MEMORIAL ON THE BEHALF OF PETITIONER

 21

It is further submitted that the court in Rout v. State of Odisha held that in circumstances
where a victim's right to privacy has been seriously infringed or violated, the victim or the
prosecution may seek appropriate orders from the court to have the infringing info. deleted
from public platforms. Court ordered that such content be removed to preserve the victim's
fundamental rights. Emphasized the importance of the right to be forgotten (RTBF), a
concept that has been upheld by courts abroad and recently encouraged by courts in India.

It is humbly submitted that according to Justice BN Srikrishna Committees draft Personal

Data Protection Bill 2018, the right to be forgotten was defined as the ability of an individual
to limit, delink, delete, or correct the disclosure of the personal info. on the internet that is
misleading, embarrassing, or irrelevant.

It is further submitted that the Personal Data Protection Bill 2019 based on the Report of the
Justice B. N. Srikrishna Committee, seeks to give statutory recognition to the right to be
forgotten. The PDP Bill now seeks to give statutory recognition to this right. This is largely
inspired by the right to erasure under the General Data Protection Regulation, 2016
(GDPR). Sect. 20 of the PDP Bill, allows a data principal to prevent or restrict the continuing
disclosure of personal data, in three situations i.e., when a) the data has served its purpose or
(b) the data principal withdraws his consent for collecting the personal data: or (c) when the
disclosure of personal data violates any existing legislation.

In the present situation, Ms. Kriti did not at first give any consent for the video to be posted on
social media.

It is humbly submitted that the European Court of Justice in Google Spain SL v. Agencia
Española de Protección de Datosordered Google to delete inadequate, irrelevant, or no
longer relevant material from its search results. The judgment, dubbed the right to be
forgotten by the public, was crucial in enforcing the EU's data protection laws and regulations,
particularly the EU's General Data Protection Regulation.

Furthermore, two significant cases to be specific Melvin v. Reid and Sidis v. FR16
Publishing Corpn are somewhat pertinent. The court contemplated, any individual who leads a
moral life has the option of joy, which remembers the independence from unmerited assaults
for his character, social standing, or notoriety.

It is humbly submitted that in Jorawer Singh Mundy vs. Union of India & Ors.17 a writ
petition was filed, seeking directions to be issued to the Respondents to remove the said
judgment from all the Respondents' respective platforms, recognizing the Right to Privacy of
the Petitioner, under Article 21 of the Constitution. The Court referred to the precedent of the
European Union in which it was held that citizens have the right to request that commercial
websites delete info. relating to them only when such info. is misleading or irrelevant.
Commercial websites are websites that gather personal info. to gain profit. In the same case,
the European Union stated that a citizen's Right to Privacy is always superior to the economic
interest of any firm, and in certain situations, it is also superior to the Right to Information of
the public. The Court stated that the Right to Privacy and the Right to be Forgotten go hand in
hand.

In the case, Sredharan T v. State Of Kerala 18, the Kerala High Court in this case recognised the
'Right to be forgotten' as a part of the Right to privacy. In this case, a writ petition was filed

16
Melvin v. Reid, 112 Cal.App. 285, 297 P. 91 (1931)
17
Jorawer Singh Mundy vs. Union of India & Ors. W.P. (C) 3918/ 2020
18
Sredharan T v. State Of Kerala Crl. Appeal 326/68; Cal. Revn.12/68
MEMORIAL ON THE BEHALF OF PETITIONER
 22

for protection of the Right to privacy under Art.21 of the constitution and petitioner was
seeking directions from the court for the removal of the name and personal info. of the rape
victim from the search engines in order to protect her identity. The court held in favours of the
petitioners recognising.

So, from above judicial pronouncement it is quite clear that Judiciary has at some extent
considered the 'Right to be forgotten' as a FR and it also recognized it a inherent part of
privacy which is linked with article 21 of Indian constitution the RTBF is an evolving FR in
India.

Therefore, it is humbly submitted that the right to privacy is a fundamental right and 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. The right to be forgotten is an
implicit right under the right to privacy.

MEMORIAL ON THE BEHALF OF PETITIONER

 23

PRAYERS

Therefore, in the lights of facts stated, issues raised, argument advanced and authority sited, the
Petitioner, respectfully prays and requests before the Honourable Supreme Court Of India, to adjudge and
declare that:
1. Right to forgotten falls under the ambit of Right to life Article 21 as the fundamental right.
2. Its lawful to exercise power to direct the social media platforms and websites and compel them in
case they refuse.
3. Social media platforms and websites must be not sensitized.
4. Right to forgotten is considerable within the domain and scope of Right to Privacy.

And pass the judgement as this Honourable Court may deem fit in the light of justice, equality and good
conscience. This case is now rested to your lordship and we believe that the judgement you will deliver
will be beneficial for everyone.
For this act of kindness, the Petitioner shall be duty bound forever pray.

Counsel on behalf of the Petitioner

MEMORIAL ON THE BEHALF OF PETITIONER