BTC28 Pet

BNMCC 2023
TEAM CODE: BTC-28
BEFORE THE HON’BLE SUPREME COURT OF WASAN
Original Writ Jurisdiction

Writ Petition (Civ.) ___ of 2023
FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF WASAN
Shiksha Bachao Andolan…….…………………………………………….………………. PETITIONER
E-Learner…………………………………………………………………………..……….RESPONDENT
CLUBBED WITH
Suo Moto Transfer Petition (Crl.) No. ___ of 2023

UNDER ARTICLE 139A OF THE CONSTITUTION OF WASAN
E-Learner…………………………………………………………………………………..PETITIONER
Jagdeep…..……………………………………………………………………………..…RESPONDENT
CLUBBED WITH
Suo Moto Transfer Petition (Civ.) No. ___ of 2023

UNDER ARTICLE 139A OF THE CONSTITUTION OF WASAN
E-Learner……………………………………………………………………………………. PETITIONER
Government of Wasan……………...…………………………………………………..…. RESPONDENT
MEMORIAL ON BEHALF OF THE PETITIONER

COUNSELS ON BEHALF OF THE PETITIONER
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TABLE OF CONTENTS
LIST OF ABBREVIATIONS .............................................................................................. IV
INDEX OF AUTHORITIES ................................................................................................ VI
STATEMENT OF JURISDICTION ................................................................................ VIII
STATEMENT OF FACTS ................................................................................................... IX
ISSUES RAISED................................................................................................................... XI
SUMMARY OF ARGUMENTS ......................................................................................... XII
ARGUMENTS ADVANCED ............................................................................................ XIV
ISSUE A: WHETHER E-LEARNER CAN BE RESPONSIBLE FOR THE VIOLATION

OF FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION OF WASAN BECAUSE
OF THE MASS DATA LEAK? ........................................................................................ XIV
[I] E-Learner can be considered as ‘other authorities’ under the definition of state under
article 12 of the constitution ...........................................................................................XIV
[II] Even as a private entity, E-Leaner would attract liability under article 21 of the
constitution due to the nature of its function. .................................................................. XV
[III] The collection of Data by E-Learner is unconstitutional ....................................XVI
[IV] E-Learner breached its duty to safeguard personal data .................................. XVII
ISSUE B:WHETHER E-LEARNER’S RIGHTS UNDER THE CONSTITUTION OF
WASAN HAVE BEEN VIOLATED BECAUSE OF THE STEPS TAKEN BY THE
GOVERNMENT OF WASAN? ..................................................................................... XVIII
[I] The Contract was terminated illegally by the government .................................. XVIII
[II] The public notice was issued without any proper investigation ..........................XIX
ISSUE C:WHETHER MR. JAGDEEP IS LIABLE FOR CRIMINAL DEFAMATION FOR
RELEASING THE VIDEO ON SOCIAL MEDIA. ........................................................... XX
[I] An imputation was published concerning E-Learner..............................................XXI
[II] The video published by Mr. Jagdeep was intended to be read by the public. ... XXII
[III] The video was published with the belief and knowledge that it would cause harm to
the reputation of E-Learner. ......................................................................................... XXII
ISSUE D: WHETHER OFFICIALS OF E-LEARNER ARE LIABLE FOR ACTING
DEFICIENTLY AND COMMITTING ACTS THAT LEAD TO VITIATING THE TRUE
CONSENT OF ITS CLIENTS? ...................................................................................... XXIV
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[I] The contract between E-Learner and its clients was induced by misrepresentation and
undue influence ............................................................................................................ XXIV
PRAYER FOR RELIEF.............................................................................................. XXVIII

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LIST OF ABBREVIATIONS
ABBREVIATION EXPANSION
¶ or para Paragraph
Civ. Civil
ETC Etcetera
Ltd Limited
Crl. Criminal
Ors Others
No. Number
r/reg/s Rule/Regulation/Section
Re Reference
Pvt Private
ed Education
SC Supreme Court
HC High Court
CRM Consumer Relationship Management
Hon’ble Honourable
RTE Right to Education
v Versus

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Retd. Retired
PUCL People’s Union for Civil Liberties
MOU Memorandum of Understanding

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INDEX OF AUTHORITIES
Cases
Ajay Hasia v Khalid Mujib (1981) SCC 722 ........................................................................ XIV

BSNL v BPL Mobile Cellular Ltd (2008) 13 SCC 597 .................................................... XXVII
Central Inland Water Transport Corpn v Brojo Nath Ganguly (1986) 3 SCC 156 .......... XXIV
Central National Bank Ltd v United Industrial Bank Ltd 1954 SCR 391 ......................... XXVI
Consolidated Engg Enterprises v Irrigation Deptt (2008) 7 SCC 169.................................. XX
Consumer Education and Research Centre v Union of India (2010) 15 SCC 699................ XV
Ganga Retreat and Towers Ltd v State of Rajasthan (2003) 12 SCC 91 ........................... XXV
Justice K S Puttaswamy (Retd) and Anr v Union of India and Ors (2017) 10 SCC 1 .......... XVI
KLM Royal Dutch Airlines v DG of Investigation and Registration (2009) 1 SCC 230 ... XXVI
Ladli Parshad Jaiswal v Karnal Distillery Co Ltd (1964) 1 SCR 270 ............................... XXV
Mangaldas Raghavji Ruparel v State of Maharashtra (1965) 2 SCR 894 ...................... XXVII
Marwari Balika Vidyalaya v Asha Srivastava (2020) 14 SCC 44 ......................................... XV
Mayawanti v Kaushalya Devi (1990) 3 SCC 1 ................................................................ XXVII
People’s Union for Civil Liberties (PUCL) v Union of India (1997) 1 SCC 301 ................. XVI
Pradeep Kumar Biswas v Indian Institute of Chemical Biology (2002) 5 SCC 111 ............ XIV
Ram Jawaya v State of Punjab (1955) 2 SCR 225 ............................................................... XXI
Ramana Dayaram Shetty v International Airport Authority of India (1979) 3 SCC 489 .. XVIII
Rodaro v Royal Bank of Canada (2000) OJ 272 .................................................................. XXI
Roychan Abraham v State of UP AIR 2019 All 96 ............................................................... XV
S Chawdhury v HM Jadwet AIR 1968 Cal 266 .................................................................... XXI
Sea Lark Fisheries v United India Insurance Co (2008) 4 SCC 131 ................................. XXV
Secretary NCERT v Dr PD Bhatnagar 1980 (5) R Cr C 393 ................................................ XX
Sewak Ram Sobhani v RK Karanjiya (1981) 3 SCC 208....................................................... XX
Sodhi Gurbachan Singh v Babu Ram AIR 1969 Punj 201 ................................................... XXI
Soni Vallabhdas Liladhar v Asstt Collector of Customs (1965) 3 SCR 854 ...................... XXII
State of Andhra Pradesh v McDowell (1996) 3 SCC 709 .................................................. XXII
State of AP v McDowell and Co (1996) 3 SCC 709 ........................................................... XXII
State of Gujarat v Bilal Ismail Abdul Majid Sujela R/CC/1/2011 ...................................... XXII
State of Maharashtra v Prabhakar Pandurang Sanzgiri AIR 1966 SC 424 ...................... XXII
Subhas Chandra Das Mushib v Ganga Prosad Das Mushib (1967) 1 SCR 331 ............... XXV

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Sundara Pandyan v Viswanathan 1986 Cri LJ 1181 .......................................................... XXII

Suraj Mall v AV Viswanath AIR 1954 SC 545 ................................................................... XXII
Susanta v State of WB 1983 Cri LJ 772 ............................................................................. XXIII
Synthetics and Chemicals Ltd v State of UP (1990) 1 SCC 109........................................ XXIII
Tata Cellular v Union of India 1994 SCC (6) 651 ............................................................... XIX
Uma Khurana v Live India WP (Crl) No 1175/2007 ......................................................... XXIII
United Bank of India v Ramdas Mahadeo Prashad (2004) 1 SCC 252 .......................... XXVII
Unnikrishnan JP v State of AP 1993 SCR (1) 594 ............................................................... XVI
Veeda v Yusuf 1966 Cri LJ 1489 (SC) ............................................................................... XXIII
Vidya Verma v Shiv Narain Verma (1955) 2 SCR 983 ...................................................... XXIII
Vishaka v State of Rajasthan (1997) 6 SCC 241.................................................................... XV
Y Konda Reddy v State of AP AIR 1997 AP 121 .................................................................. XIX
Statutes
Constitution of India, art 266 ................................................................................................ XIV

The Indian Telegraph Act 1885, s 5(2) ................................................................................. XVI
The Information Technology (Reasonable Security Practices and Procedures and Sensitive
Personal Data or Information) Rules 2011, s (43A)........................................................ XVII
The Personal Data Protection Bill 2019, s (12) .................................................................. XVII
The Personal Data Protection Bill 2019, s (3)(13) .............................................................. XVII

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STATEMENT OF JURISDICTION
Shiksha Bachao Andolan, the petitioner in the original writ jurisdiction filed under article 32
of the constitution of Wasan concerning the matter of Writ petition (Civ.) ___of 2023 Shiksha
Bachao Andolan v E- learner humbly submits to the jurisdiction of this Hon’ble Supreme
Court.
E-Learner, the petitioner in the Suo Moto Transfer Petition (Crl.) No.___ of 2023, under article
139A of the constitution of Wasan concerning the matter of E-Learner v Jagdeep humbly
submits to the jurisdiction of this Hon’ble Supreme Court.
E-Learner, the petitioner in the Suo Moto transfer Petition (Civ.) No.___ of 2023, under article
139A of the constitution of Wasan concerning the matter of E-Learner v Government of Wasan
humbly submits to the jurisdiction of this Hon’ble Supreme Court.
The present memorandum sets forth the facts, contentions and arguments in the present
case.

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STATEMENT OF FACTS
Wasan has the second largest population, with 472 million citizens under 18, while 55 per cent
of minors in the age bracket 6 and 14 have a right to education under the Constitution. The
education system suffered because of the COVID pandemic in the last two years, paving the
way for many ed-tech companies.
‘E-Learner’, an ed-tech company, was incorporated in 2014 and became a unicorn by 2020,
reaching a total valuation of $1.2 billion. By March 2021, its valuation spiked to $18 billion,
surpassing the government’s annual budget for education. It was listed on the stock market,
with shares traded nationally and internationally. The company also ran courses targeting the
age group 6 to 14 years. With 40 million enrolments, the company became the biggest Ed-Tech
company in the world. Growth in the company’s profits coincided with the release of Wasan’s
National Education Policy, which encouraged digital pedagogy. Following this, several
government and private schools tied up with E-Learner to supply software specially developed
for the smooth digital operation of educational institutions. Nandan, the company’s CEO, was
awarded the Biggest Contributor to Education Award by the Ministry of Education in Wasan.
Union Minister of Education proclaimed that E-Learner had performed an essential public
function by ensuring that the maximum number of children in Wasan are not deprived of
education during the distressing pandemic times.
Jagdeep, based in Gurupur city of Wasan, is a YouTuber, a noted security researcher and a
freelance journalist. On 1 January 2022, Jagdeep uploaded a 15-minute-long video on YouTube
claiming that E-Learner is not an ethical organization and that there are serious issues with how
it functions and handles its customers’ data. His central accusation was that Botguard, the
consumer relationship management (CRM) agency of E-Learner, had caused the leak of the
private data of 20 lakh people by hosting it on an unprotected server. It further revealed that E-
Learner collects data from users’ phones. Allowing the inbuilt artificial intelligence system to
guess the owner’s socioeconomic status, the company tailor its marketing strategies
accordingly.
It became a topic of discussion among leading newspapers and TV channels, with most of the
coverage directed against the company in the tone of fraud in the name of education. Based on
the facts in the video, the Government of Wasan also suspended its contract with E-Learner
regarding developing and supporting digital pedagogy in government schools. A day after the

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video's release and this notice, the company's shares plummeted by more than fifty per cent,
causing a massive loss.
The company stated that the technical glitch that caused the data leak was fixed within 24
hours, and all information was shifted to protected servers. It alleged the entire episode was a
case of criminal defamation and an attack on its freedom to do lawful business. The company
initiated a criminal suit against Jagdeep and filed a writ petition against the contract's
termination by the Government of Wasan in the High Court of Sanaal (Capital of Wasan).
Despite this, the testimonials of consumers against the company kept coming on various social
media platforms like Facebook, and Instagram, tagged 4500 times within 24 hours, with the
primary complaint being how E-Learner dealt with lending money to the clients. With its
courses costing lakhs, parents were encouraged to take up loans facilitated by companies that
offered them using the euphemism of ‘outstanding payments’. A survey conducted by
AltWatch, a fact checker and data analytics organization, found that most people signing the
loan agreement had no clue about its true nature, compelling them to take more loans to pay
off their debt; otherwise, the company’s legal team would threaten them daily to initiate a legal
suit against them.
The contract was a lengthy document hard to read and understand—failing to understand the
nuance of the agreement created problems in seeking a refund when students were unsatisfied
with the course quality. E-Learner replied that it was not their problem that parents did not read
the terms of the document carefully before signing. There was no coercion; thus, it would be
baseless to say that anyone has fallen into the ‘trap’ of the company. It remains a responsible
quality education provider to the customers, and all of them cannot be satisfied.
An Action Committee formed after the conclusion of the mass rally by Karuna Roy, leader of
Siksha Bachao Andolan, on Feb 5 2022, in Sanaal, filed a petition against E-Learner in the
Supreme Court of Wasan based on the premise that E-Learner discharges a public function and
thus can be held accountable for violating the fundamental rights of the millions of Wasan
citizens main grounds being privacy, the right to education and issues related to health because
of stress caused to clients and overexposure to online content. The petitioners also contested
that E-Learner has violated the consumer law of the land and is liable for committing
fraud/misrepresentation upon its clients. Along with the petition by Shiksha Bachao Andolan,
the Supreme Court of Wasan has clubbed the pending matters before the Sanaal High Court
and has decided to hear them together with the petition of Ms. Roy.

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ISSUES RAISED
The questions/issues that have arisen in the appeal for the consideration of the Hon’ble
Securities Appellate Tribunal are as follows:
A. WHETHER E-LEARNER CAN BE RESPONSIBLE FOR THE VIOLATION OF

FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION OF WASAN BECAUSE
OF THE MASS DATA LEAK?
B. WHETHER E-LEARNER’S RIGHTS UNDER THE CONSTITUTION OF WASAN

HAVE BEEN VIOLATED BECAUSE OF THE STEPS TAKEN BY THE
GOVERNMENT OF WASAN?
C. WHETHER MR. JAGDEEP IS LIABLE FOR CRIMINAL DEFAMATION FOR

RELEASING THE VIDEO ON SOCIAL MEDIA?
D. WHETHER OFFICIALS OF E-LEARNER ARE LIABLE FOR ACTING DEFICIENTLY

AND COMMITTING ACTS THAT LEAD TO VITIATING THE TRUE CONSENT OF
ITS CLIENTS?

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SUMMARY OF ARGUMENTS

OF FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION OF WASAN
BECAUSE OF THE MASS DATA LEAK?
It is humbly contended that E-Learner is responsible for violating fundamental
rights under the Constitution of Wasan because of the mass data leak. As E-Learner
can be considered as ‘other authorities’ under the definition of state under article 12
of the constitution and even as a private entity, E-Learner would attract liability
under article 21 of the constitution due to the nature of its function. Further, the
collection of Data by E-Learner is unconstitutional and E-Learner breached its duty
to safeguard data mentioned in the IT rules of 2011.
ISSUE B: WHETHER E-LEARNER’S RIGHTS UNDER THE CONSTITUTION OF

WASAN HAVE BEEN VIOLATED BECAUSE OF THE STEPS TAKEN BY
THE GOVERNMENT OF WASAN?
It is humbly submitted before the Hon’ble Supreme Court of Wasan that the
government of Wasan has violated the rights of E-Learner under the Constitution
of Wasan as the government terminated its contract with E-Learner illegally without
good cause and even released a pre-emptive notice with no formal investigation or
research on their end. All this resulted in severe financial and fiduciary losses to the
company as the government had interfered with their right to conduct business.
ISSUE C: WHETHER MR. JAGDEEP IS LIABLE FOR CRIMINAL DEFAMATION

FOR RELEASING THE VIDEO ON SOCIAL MEDIA?
It is humbly contended that Mr. Jagdeep is liable for criminal defamation for
releasing the video on social media. As in the present case all the three requirements
for criminal defamation are fulfilled. Because there was an imputation published
concerning E-learner, the video uploaded by him was intended to be read by the
public and the video was published with the belief and knowledge that it would
cause harm to the reputation of E-Learner.

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DEFICIENTLY AND COMMITTING ACTS THAT LEAD TO VITIATING
TRUE CONSENT OF ITS CLIENTS?
It is humbly contended that E-learner had acted deficiently and vitiated the true
consent of the clients as there was undue influence and misrepresentation involved.
E-learner was in a dominant position and exploited the students and parents who
were defenseless. Additionally, they misrepresented some of the contract's most
important clauses, leading the customers to believe otherwise. Further, there was no
consensus ad idem as both parties thought differently of the terms of the contract.
Most of the parents didn't comprehend the contract's provisions or what they were
agreeing to when they signed it.

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ARGUMENTS ADVANCED

OF FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION OF WASAN
BECAUSE OF THE MASS DATA LEAK?
¶1. It is humbly submitted that E-Learner is responsible for violating fundamental rights
under the Constitution of Wasan because of the mass data leak. In this argument, it is
further submitted that (I) E-Leaner can be considered as ‘other authorities’ under the
definition of state under article 12 of the constitution (II) Even as a private entity, E-
Learner would attract liability under article 21 of the constitution due to the nature of
its function. (III)The collection of Data by E-Learner is unconstitutional (IV) E-Learner
breached its duty to safeguard data.
[I] E-Learner can be considered as ‘other authorities’ under the definition of state
under article 12 of the constitution
¶2. The Supreme Court in Pradeep Kumar Biswas v Indian Institute of Chemical Biology
re1 explained Ajay Hasia v. Khalid Mujib2 and the majority office judges summed up
the scope of “other authorities” of the state. “The picture that emerges is that the tests
formulated in the Ajay Hasia case are not a rigid set of principles so that if a body falls
within any one of them, it must be considered to be a state within the meaning of article
12. If the functions of the corporation are of public importance and closely related to
governmental functions, it would be a relevant factor in classifying the corporation as
an instrumentality or agency of government.”
¶3. It is submitted before this Hon’ble court that a private unaided educational institution
discharges public function under the Right to Education (RTE) Act and is, therefore,
amenable to the court’s writ jurisdiction under Article 226 of the Constitution3.
1
Pradeep Kumar Biswas v Indian Institute of Chemical Biology (2002) 5 SCC 111.
2
Ajay Hasia v Khalid Mujib (1981) SCC 722.
3
Constitution of India, art 266.

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¶4. Private institutions imparting education to students from the age of six years and
onwards, including higher education, perform a public duty; accordingly, such
institutions become amenable to the writ jurisdiction4.
¶5. Words “any person or authority” used in art. 226 cannot be confined only to statutory
authorities and instrumentalities of the state but may cover any other person or body
performing a public duty.5
¶6. In the present case, E-Learner falls under the criterion of a private unaided educational
institution, as the company runs several courses targeting the age group of 6-14. Its
website also boasted of at least five thousand success stories of young children making
it to the top engineering and medical institutions after completing the online courses on
its platform.6 Hence it performs a public duty. Therefore, E-Learner is a state under
article 12 and can be made liable for violating fundamental rights.
[II] Even as a private entity, E-Leaner would attract liability under article 21 of the
constitution due to the nature of its function.
¶7. The horizontal applicability (application against private entities) of Article 21 can be
seen in the case Consumer Education and Research Centre7, where the court held that
private actors are bound by this decision and direction under the fundamental rights of
the Wasan Constitution. The Court, in other places, resorted to Article 21 of the
constitution where the issue involving was of right to privacy. In that case, the court
has said that the right to life can be claimed against the private individual.
¶8. Vishakha and Ors v State of Rajasthan8 enforced fundamental rights against private
persons also, and this case indicates that the Supreme Court has not restricted the
issuance of writs and enforcement of fundamental rights against the State only. There
thus exists the possibility of enforceability of fundamental rights against private bodies
as well in case they encroach on the fundamental right of the public at large, which in
this case, it does.
4
Roychan Abraham v State of UP AIR 2019 All 96.
5
Marwari Balika Vidyalaya v Asha Srivastava (2020) 14 SCC 449.
6
Moot Proposition, para 2.
7
Consumer Education and Research Centre v Union of India (2010) 15 SCC 699.
8
Vishaka v State of Rajasthan (1997) 6 SCC 241.

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[III] The collection of Data by E-Learner is unconstitutional
¶9. In Unnikrishnan, JP v State of AP9 , a Constitution Bench of this Court held that several
unenumerated rights fall within Article 21 since personal liberty is of widest amplitude
on the way to affirming a right to Education and then in K S Puttaswamy10, it was
declared that the Right to Privacy is a fundamental right. The court observed that any
restriction on the right to privacy must satisfy the “principle of proportionality and
legitimacy,” and here, these conditions are not fulfilled:
• Proportionality- To tailor marketing strategy, only general data is sufficient.
Still, E-learner apart from collecting general data like name, phone number,
email, age, and address, the E-learner collected log chats between parents and
staff and teachers’ comments on their students. Even copies to reset user
accounts were also found on the server. Data from users’ phones that have their
mobile app downloaded was also collected to guess the owners’ socioeconomic
status.11 Such data is generally neither required nor collected by companies.
This shows that the data collected was not proportional to the required
legitimate aim, which was to improve their marketing strategies.
¶10. In People’s Union for Civil Liberties (PUCL)12 the constitutional validity of Section
5(2) of the Telegraph Act, 188513 was challenged. The Supreme Court shielding the
right to privacy stressed that any interception by a public authority should satisfy two
statutory preconditions, i.e., ‘Public emergency’ and ‘Interest of public safety’,
otherwise this shall be unconstitutional as the right to privacy is a part of the right to
“life” and “personal liberty” enshrined under Article 21 of the Constitution and the said
right cannot be curtailed “except according to procedure established by law”.
• Public Emergency- The E-learner is a public authority, as proved above. It
collected sensitive personal data14 without there being a public emergency; even
in their public statement, there wasn’t mention of any public emergency.
9
Unnikrishnan JP v State of AP 1993 SCR (1) 594.
10
Justice K S Puttaswamy (Retd) and Anr v Union of India and Ors (2017) 10 SCC 1.
11
12
People’s Union for Civil Liberties (PUCL) v Union of India (1997) 1 SCC 301.
13
The Indian Telegraph Act 1885, s 5(2).
14
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• Interest of Public Safety- There has been no potential harm to public safety
that can be deciphered from the fact sheet. E-Learner, without satisfying the
condition, collected personal data.
¶11. The Personal Data Protection Bill allows the processing of data by fiduciaries only if
consent is provided by the individual. However, in certain circumstances, personal data
can be processed without consent. These include: (i) if required by the states to provide
benefits to the individual, (ii) legal proceedings (iii) to respond to a medical
emergency.15
• Providing benefits- E-learner collected data to enhance their marketing, which
provided no benefits to the individual.
• Legal proceedings and medical emergencies- as it can be deciphered from the
fact sheet, there was neither a legal proceeding or a medical emergency.
[IV] E-Learner breached its duty to safeguard personal data
¶12. The Information Technology Rules 201116 explicitly provides that whenever a
corporate body possesses or deals with any sensitive personal data or information, and
is negligent in maintaining reasonable security to protect such data or information,
which thereby causes wrongful loss or wrongful gain to any person, then the such body
corporate shall be liable to pay damages to the person(s) so affected.
¶13. According to The Personal Data Protection Bill, 201917, a data fiduciary is an entity
that collects and/or processes personal data. Government, any company which is
incorporated in Wasan, and foreign companies dealing with the personal data of
individuals come under the definition of data fiduciary. It is the obligation of the data
fiduciary to safeguard and prevent the misuse of data.
¶14. In the present case, E-Learner was in possession of personal data. The data was hosted
on an unprotected server, which caused the mass data leak.18 It was the duty of the E-
Leaner to safeguard the data, but it failed in it. Hence E-Learner is liable for the mass
data leak.
15
The Personal Data Protection Bill 2019, s (12).
16
The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or
Information) Rules 2011, s (43A).
17
The Personal Data Protection Bill 2019, s (3)(13).
18
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ISSUE B: WHETHER E-LEARNER’S RIGHTS UNDER THE CONSTITUTION OF

WASAN HAVE BEEN VIOLATED BECAUSE OF THE STEPS TAKEN BY
THE GOVERNMENT OF WASAN?
¶15. It is humbly submitted before the Hon’ble Supreme Court of Wasan that the
government of Wasan has violated the rights of E-Learner under the Constitution of
Wasan because (I) the contract was terminated illegally by the government and (II)) the
public notice was issued without any proper investigation.
[I] The Contract was terminated illegally by the government
¶16. The contract between E-Learner and the government of Wasan was about developing
and supporting digital pedagogy in government schools.19 The main subject of the
agreement was to make education more accessible online for people from every sector,
especially those in government schools. E-Learner and the government put into effect
their contract. They were working on it when they suspended the contract based on
allegations in a video published by another citizen, Mr Jagdeep, on YouTube. The
government terminated the contract without reasonable notice and even issued a public
notice regarding E-Learners to caution its users.20
¶17. The contract in focus here is the one between E-Learner and the government, which the
government of Wasan wrongfully and illegally terminated. The Hon’ble Supreme Court
of Wasan stated in the International Airport Authority case of 1979, that every action
of the executive Government must be informed with reason and should be free from
arbitrariness as that is the very essence of the rule of law and its bare minimum
requirement.21 In this case, the government has no hard evidence or concrete reason
apart from a video with misinformation spread on it. As seen from the statement
released by E-Learner, the data leak glitch was worked on and fixed within 24 hours of
it occurring, which shows E-Learner’s dedication and determination towards its
19
20
21
Ramana Dayaram Shetty v International Airport Authority of India (1979) 3 SCC 489.

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clients.22 In its decision to terminate the contract suddenly, without any notice, the
government did it unreasonably and arbitrarily.
¶18. This is further backed up by another judgment of the Supreme Court of Wasan, where
it is clearly stated that the government has the freedom of contracts. Still, they need to
ensure that the decision needs to not only be tested by the application of the
Wednesbury principle of reasonableness but also not be arbitrary.23 The decision by the
government of Wasan to terminate the contract on the grounds of a video being
published by another citizen on the internet is not what can be termed as reasonable
ground. Without any discussion with the company, the government arbitrarily decided
to end the contract without any notice and did not act in favour of the law and justice.
¶19. The High Court of Andra Pradesh also specified that the State and its instrumentality
could not be allowed to function arbitrarily, even entering into contracts. The State’s
decision either enter into the contract or refuse to enter into the contract must be fair
and reasonable. It cannot be allowed to pick and choose the persons and entrust the
contract according to its whims and fancies. Like all its actions, even in the contractual
field, the action is bound to be fair. It is settled law that the rights and obligations arising
out of the contract after entering into the same are regulated by the terms and conditions
of the contract itself.24 Similarly, the government should not be able to choose when it
wants to leave the contract and when it wants to stay in the agreement.
¶20. Thus, with no reasonable grounds for termination and no notice being provided, it can
be said that the government terminated the contract illegally and violated the rights of
E-Learner under the Wasan Constitution.
[II] The public notice was issued without any proper investigation
¶21. Ten days after the release of Mr Jagdeep’s video on YouTube, the public notice issued
by the Ministry of Education stated that citizens should pay extreme caution while
signing up for courses on E-Learner.25 This notice was said to be published in the public
interest, but it did not have any reasonable basis except for that video. The authorities
did no official and proper investigation before issuing such a statement.
22
23
Tata Cellular v Union of India 1994 SCC (6) 651.
24
Y Konda Reddy v State of AP AIR 1997 AP 121.
25

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¶22. In a judgement, the Hon’ble Supreme Court of Wasan defined due diligence as a
measure of prudence or activity expected from and ordinarily exercised by a reasonable
and prudent person under particular circumstances.26 The government didn’t take due
diligence while conducting this matter as upon investigation; it would have been found
that E-Learner not only took bold steps to rectify their mistake but did it within 24 hours
of the glitch. The report submitted and accepted by the Securities and Exchange Board
of Wasan would have also been presented and shown that the E-Learner platform is not
a security hazard.27
¶23. The government should have taken proper care in performing their duties as they
drastically affected the company's financial setup. More than 50% of their shares
plummeted, after the video’s release and notice, causing massive financial loss and trust
loss in their client base.28
¶24. Due to the careless action of the government, the entire client base of E-Learner was
shaken as most of the consumers were citizens of Wasan who had their government
telling them not to do something. It might have been just advice from the government’s
side, but it drastically affected the company, its finances and its future.
¶25. The government thus interfered with E-Learner’s right to conduct their business.
ISSUE C: WHETHER MR. JAGDEEP IS LIABLE FOR CRIMINAL DEFAMATION FOR

RELEASING THE VIDEO ON SOCIAL MEDIA.
¶26. It is humbly submitted before this Hon'ble Court that Mr. Jagdeep is liable for criminal
defamation for releasing the video on social media.
¶27. Defamation is a public wrong, even though it is done to an individual. Individuals form
part of the collective, which gives rise to the community interest at large. 29 A public
wrong should not be interpreted as a wrong that injures the public but as one that
properly concerns the public as a whole.30 Without the individual, there will be no
society. The purpose for which any law is made is to protect the social interest. Laws
26
Consolidated Engg Enterprises v Irrigation Deptt (2008) 7 SCC 169.
27
28
29
Secretary NCERT v Dr PD Bhatnagar 1980 (5) R Cr C 393.
30
Sewak Ram Sobhani v RK Karanjiya (1981) 3 SCC 208.

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BNMCC 2023
relating to defamation protect the reputation of the individual in the perception of the
public at large.31
¶28. As per Section 499 of the Wasan Penal Code, the following are the three essential
ingredients of the offence of defamation32:
(I) Making or publishing any imputation concerning any person
(II) Such imputation must have been made by words either spoken or intended to be
read or by signs or by visible representation
(III) Such imputation must have been made with the intent to harm or with
knowledge or belief that it will harm the reputation of the person concerned33.
[I] An imputation was published concerning E-Learner.
¶29. Communication of defamatory matter merely to the person defamed is not ‘publication'.
When the defamatory matter is communicated to some person other than the person
defamed, then it amounts to the ‘publication' of a defamatory statement.34
¶30. The question of whether an imputation or accusation is defamatory or not is a mixed
question of fact and law.35 It is upon the discretion of this Hon'ble Court to interpret the
same. The law states that any derogatory statement or article that is published and
causes harm to the reputation of an individual or an organization is defamation.
¶31. The facts in the current case state that on 1 January 2022, Jagdeep uploaded a 15-
minute-long video on YouTube claiming that E-learner is not an ethical organization
and that there are severe issues with the way it functions and the way it handles the data
of its customers36. YouTube is freely accessible to everyone, and the video was seen by
many people. This caused a significant loss to E-Learner. The government of Wasan
suspended its contract with E-Learner. A day after the release of the video, the shares
of the company plummeted by more than fifty per cent causing a massive loss to the
management and shareholders.37
31
Sodhi Gurbachan Singh v Babu Ram AIR 1969 Punj 201.
32
Ram Jawaya v State of Punjab (1955) 2 SCR 225.
33
Special Courts Bill 1978 In re (1979) 1 SCC 380.
34
Rodaro v Royal Bank of Canada (2000) OJ 272.
35
S Chawdhury v HM Jadwet AIR 1968 Cal 266.
36
37
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BNMCC 2023
¶32. Hence, it can be concluded that an imputation was published concerning E-Learner that
caused a severe loss to the company.
[II] The video published by Mr. Jagdeep was intended to be read by the public.
¶33. A printer or publisher, whosoever has printed or published something. It has floated in
the market or at any place where it is accessible to be read, impacted and evaluated,
makes a declaration under the Press and Registration Act 1867, and is of the clear
intention that the material so published should be read by the public. 38 However, the
expression ‘intended to be read' only qualifies the term ‘by words' and relates only to
the mode and manner of action.39
¶34. When Mr. Jagdeep uploaded the video on YouTube, their intention was to have the
report read by the public, as YouTube is an easily accessible source for millions of
people. At least he intended to show it to his one lakh subscribers. It is the clear
intention that the video so uploaded should be seen by the public.
[III] The video was published with the belief and knowledge that it would cause harm
to the reputation of E-Learner.
¶35. The accused must have intended to publish the words and must have published the
words that are alleged to be defamatory.40 The intention on the part of the accused to
harm the reputation of the complainant or knowledge or belief that the imputation will
harm his reputation is an essential element.41
¶36. The reputation of an individual is what neighbours say and think about the
individual42 and the word harm in relation to defamation means imputation to an
individual's character made and expressed to others so as to lower him in their
estimation.43 The intention must be to harm the reputation of a person. 44 All these are
essential necessities and tangents that need to be understood and acted upon while a
suit for defamation is being adjudicated.
38
Soni Vallabhdas Liladhar v Asstt Collector of Customs (1965) 3 SCR 854.
39
State of AP v McDowell and Co (1996) 3 SCC 709.
40
State of Andhra Pradesh v McDowell (1996) 3 SCC 709.
41
State of Gujarat v Bilal Ismail Abdul Majid Sujela R/CC/1/2011.
42
State of Maharashtra v Prabhakar Pandurang Sanzgiri AIR 1966 SC 424.
43
Sundara Pandyan v Viswanathan 1986 Cri LJ 1181.
44
Suraj Mall v AV Viswanath AIR 1954 SC 545.

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BNMCC 2023
¶37. It is established law that Journalists do not enjoy any special privilege and have no
greater freedom than others to make any imputations or allegations sufficient to ruin
the reputation of another.45 Further, whenever it is found that the imputation was not
made in good faith46, it would lead to Defamation. It is the duty of the editor to check
every report that is supplied and published only after the verification of the substance
and its consequences.47 Where prior knowledge of the consequences of the publication
of the article is already known, but still the defamatory article is published, the Editor
shall be held liable for the offence under Sec 499 of the IPC.48 Complaint was filed
against the journalist for publishing defamatory articles in Newspaper and was upheld
to be Defamation.49
¶38. It should be remembered that ‘publication' is a term of art in the law of defamation
which in legal parlance ordinarily means “communication”50 of a defamatory matter
intentionally or by a negligent act. As any publication in the press has an immense
impact on the minds of the readers, it is essential that persons responsible for publishing
anything in a newspaper must take good and adequate care before publishing anything
which tends to harm the reputation of the person.
¶39. Jagdeep is a noted security researcher and a freelance journalist. With around one lakh
subscribers, most of his digital content is targeted toward making common people
aware of issues like dowry, corruption, scams etc.51. Hence, it is prior knowledge that
he makes videos about infamous people. So, when he uploaded the video about E-
learner, he must have knowledge that at least in the eyes of his subscribers the reputation
of the E-Learner would be tarnished. They will compare the E-Learner equivalent to
the scams that have been busted by him before. He in his video didn’t mention that the
technical glitch caused the leak of data and was fixed within twenty-four hours and all
information now stands shifted to a protected server.
¶40. Consequently, the video received a resounding response from people, and it
immediately became a topic for discussion in the editorials of leading newspapers or
45
Susanta v State of WB 1983 Cri LJ 772.
46
Synthetics and Chemicals Ltd v State of UP (1990) 1 SCC 109.
47
Ibid.
48
Uma Khurana v Live India WP (Crl) No 1175/2007.
49
Veeda v Yusuf 1966 Cri LJ 1489 (SC).
50
Vidya Verma v Shiv Narain Verma (1955) 2 SCR 983.
51

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BNMCC 2023
prime-time shows in electronic media. Most of the coverage was directed against the
company and was discussed in the tone of fraud in the name of education.52
¶41. Hence, Jagdeep fulfils the third essential of defamation, i.e. he had knowledge and
belief that his video would cause harm to the reputation of the E-Learner.

DEFICIENTLY AND COMMITTING ACTS THAT LEAD TO VITIATING
THE TRUE CONSENT OF ITS CLIENTS?
¶42. It is humbly submitted before the Hon’ble Supreme Court that the officials of E-Learner
are liable for acting deficiently and committing acts that lead to vitiating true consent
of its clients. In this argument is further submitted that [I] The contract between E-
Learner and its clients was induced by undue influence; [II] There was no consensus ad
idem between the parties while signing the contract.
[I] The contract between E-Learner and its clients was induced by misrepresentation
and undue influence
¶43. E-learner being one of the most dominant players in the online education industry,
certainly had a hold over parents and students.53 In times when online education was
desperately needed, their business grew and many new clients bought their services.54
E-learner by taking advantage of the position of needy parents and students laid down
unjust terms in the contract. Further, misrepresenting a loan agreement and referring to
the sums as “outstanding loans” vitiated the free consent of consumers55.
¶44. An unfair or an unreasonable contract entered into between parties of unequal
bargaining power, was void as unconscionable, under Section 23 of the Wasan Contract
Act, 1872.56 Where it is proved that a person is in a position to dominate the will of
another and he enters into a transaction with that other person which on the face of it or
on the evidence adduced, appears to be unconscionable the burden of proving that the
transaction was not induced by undue influence lies upon the person in a position to
52
53
54
55
56
Central Inland Water Transport Corpn v Brojo Nath Ganguly (1986) 3 SCC 156.

Page | XXIV
BNMCC 2023
dominate the will of the other.57 Section 16(2) shows that such a situation can arise
wherever the donee stands in a fiduciary relationship to the donor or holds a real or
apparent authority over him. Sub-section (3) of the section throws the burden of proving
that a contract was not induced by undue influence on the person benefiting by it when
two factors are found against him, namely that he is in a position to dominate the will
of another and the transaction appears on the face of it or on the evidence adduced to
be unconscionable.58
¶45. In the present case, the services by E-learner were urgently needed by many clients, E-
learner having a monopoly in the online education market had a greater say in any and
all transactions taking place. When parents or students learned the true nature of the
contract, they frequently experienced anxiety and mental health problems and were
forced to take out additional loans from family and friends to pay off the sum still owed
to E-Learner. Otherwise, the company's legal department would call every day and
threaten to file a lawsuit against the defaulters59. The pandemic situation further put
them in higher position and the bargaining power was grossly unequal. The helpless
consumers had been taken advantage of by inserting terms that were unreasonable and
exploiting their situation.
¶46. In case of misrepresentation the aggrieved party can rescind the contract or seek
restitution, or affirm the contract without prejudice to its right to seek damages by way
of restitution for the resultant loss. Otherwise, such a party once exercising its option
to stand by the contract with the knowledge of misrepresentation would lose its power
of avoidance of the contract.60 Where there has been a suppression of fact, acceptance
of the contract by an individual would not be binding.61 A consent induced by false
representation may not be free, but it can nevertheless be real, and ordinarily the effect
of fraud or misrepresentation is to render a transaction voidable. If an innocent
purchaser or pledgee obtains goods from the person in possession thereof, whose
possessory right is defeasible on the ground of fraud but had not actually been defeated
at the time when the transaction took place, there is no reason why the rights of such
innocent purchaser or pledgee should not be protected. The right in the possessor or
57
Ladli Parshad Jaiswal v Karnal Distillery Co Ltd (1964) 1 SCR 270.
58
Subhas Chandra Das Mushib v Ganga Prosad Das Mushib (1967) 1 SCR 331.
59
60
Ganga Retreat and Towers Ltd v State of Rajasthan (2003) 12 SCC 91.
61
Sea Lark Fisheries v United India Insurance Co (2008) 4 SCC 131.

Page | XXV
BNMCC 2023
bailee in such circumstances is determinable no doubt but so long as it is not determined

it is sufficient to enable him to create title in favor of an innocent transferee for value
without notice.62 Whether a statement constitutes a false or misleading representation
will depend upon the facts and circumstances of each case. It is not possible to provide
an exclusive list of the statements which may constitute false or misleading
representation, nor can there be any straitjacket formula evolved thereof for the said
purpose. However, the statements of the nature which are willfully made knowingly
false, or made recklessly without honest belief in its truth, and made with the purpose
to mislead or deceive will definitely constitute a false or misleading representation. In
addition, a failure to disclose a material fact when a duty to disclose that fact has arisen
will also constitute a false or misleading representation.63
¶47. In the present case an essential fact that the sums offered were actually loans were
hidden by the consumers, their consent had been vitiated as material facts in the contract
had been manipulated. Misrepresentation of these loan agreements kept the consumers
in the dark about the fact that they were risking being in debt in the future.64 There was
no consensus ad idem between the parties while signing the contract.
¶48. The clients who signed the contract failed to understand certain essential terms of the
contract.65 There was no consensus ad idem as the terms both parties were agreeing to
were vastly different.66 A reasonable notice must be given by the person delivering the
document to give adequate information about the terms and condition laid down in the
contract.67 Notice of the terms and condition should be given before or at the time of
contract when it is to be signed. It is the duty of the party relying on a clause to its
benefit to make it clear to other party the terms and condition of contract.68 The
stipulations and terms of the contract have, therefore, to be certain and the parties must
have been consensus ad idem.
¶49. The acceptance must be absolute, and must correspond with the terms of the offer. The
burden of showing the stipulations and terms of the contract and that the minds were ad
idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the
62
Central National Bank Ltd v United Industrial Bank Ltd 1954 SCR 391.
63
KLM Royal Dutch Airlines v DG of Investigation and Registration (2009) 1 SCC 230.
64
65
66
67
(1875) LR 2 Sc Ap 470.
68
[1970] EWCA Civ 2.

Page | XXVI
BNMCC 2023
parties are not ad idem, there can be no specific performance, for there was no contract
at all.69 In a case where there was no consensus on the terms and conditions stipulated
in MOU and the same also had not been acted upon, it was held that there was no
concluded contract.70 A contract may be entered into, subject to the provisions of a
statute or the rules framed thereunder. The contract, itself, may refer to the statutory
provisions or refer to the same by way of incorporation by reference. A contract qua
contract, however, must be consensual. It must meet the statutory requirements and
reasons under the provisions of the Contract Act.71 No doubt a contract comes into
existence by the acceptance of a proposal made by one person to another by that other
person. That other person is not bound to accept the proposal but it may not necessarily
follow that where that other person had choice but to accept the proposal the transaction
would never amount to a contract.72
¶50. Here in the present case most people who signed the contract were unaware of its true
nature. The majority of individuals who signed the contract with one of the lending
institutions mentioned on E-Learner were unaware that it was a loan agreement. There
was no one-on-one discussion of the contract's provisions. Many people found the
lengthy text challenging to read and comprehend. Many parents from low
socioeconomic, educational, or geographic status did not comprehend the finer points
of the contract, which frequently made it difficult to get a refund when students were
dissatisfied with the calibre of the course.73 Hence, their true consent cannot be said to
be present.
69
Mayawanti v Kaushalya Devi (1990) 3 SCC 1.
70
United Bank of India v Ramdas Mahadeo Prashad (2004) 1 SCC 252.
71
BSNL v BPL Mobile Cellular Ltd (2008) 13 SCC 597.
72
Mangaldas Raghavji Ruparel v State of Maharashtra (1965) 2 SCR 894.
73
Page | XXVII
BNMCC 2023
PRAYER FOR RELIEF
In the light of the facts of the case, issues raised, arguments advanced & authorities cited, the
Counsels for Petitioner humbly prays before the Hon’ble Supreme Court of Wasan to kindly
adjudge & declare that:
-I-
E-Learner violated the Fundamental Rights under the Constitution of Wasan for the mass
data leak. They should be ordered to take appropriate actions for redressal.
-II-
Acknowledgement along with a public apology by the Government of Wasan with the
appropriate actions for redressal for the actions taken by the Government which violate the
rights of E-Learner under the Constitution of Wasan.
-III-
Mr Jagdeep should be held liable for the criminal defamation of E-Learner through his video
released on social media. He should issue a public apology and take appropriate actions for
redressal.
-IV-
The Officials of E-Learner should be held liable for acting deficiently and committing acts
that lead to vitiating true consent of E-Learner’s clients.
And/or
Pass any order that it may deem fit in the interest of justice equity, and good conscience.
Sd/-
Counsels on behalf of the Petitioner

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BNMCC 2023

Page | XXIX

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BEFORE THE HON’BLE SUPREME COURT OF WASAN

Original Writ Jurisdiction

Shiksha Bachao Andolan…….…………………………………………….………………. PETITIONER

Suo Moto Transfer Petition (Crl.) No. ___ of 2023

Suo Moto Transfer Petition (Civ.) No. ___ of 2023

Government of Wasan……………...…………………………………………………..…. RESPONDENT

MEMORIAL ON BEHALF OF THE PETITIONER

LIST OF ABBREVIATIONS .............................................................................................. IV

INDEX OF AUTHORITIES ................................................................................................ VI

STATEMENT OF JURISDICTION ................................................................................ VIII

STATEMENT OF FACTS ................................................................................................... IX

SUMMARY OF ARGUMENTS ......................................................................................... XII

ARGUMENTS ADVANCED ............................................................................................ XIV

ISSUE A: WHETHER E-LEARNER CAN BE RESPONSIBLE FOR THE VIOLATION

PRAYER FOR RELIEF.............................................................................................. XXVIII

MEMORIAL ON BEHALF OF THE PETITIONER

CRM Consumer Relationship Management

RTE Right to Education

MEMORIAL ON BEHALF OF THE PETITIONER

PUCL People’s Union for Civil Liberties

MOU Memorandum of Understanding

MEMORIAL ON BEHALF OF THE PETITIONER

Ajay Hasia v Khalid Mujib (1981) SCC 722 ........................................................................ XIV

MEMORIAL ON BEHALF OF THE PETITIONER

Sundara Pandyan v Viswanathan 1986 Cri LJ 1181 .......................................................... XXII

Constitution of India, art 266 ................................................................................................ XIV

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

A. WHETHER E-LEARNER CAN BE RESPONSIBLE FOR THE VIOLATION OF

B. WHETHER E-LEARNER’S RIGHTS UNDER THE CONSTITUTION OF WASAN

C. WHETHER MR. JAGDEEP IS LIABLE FOR CRIMINAL DEFAMATION FOR

D. WHETHER OFFICIALS OF E-LEARNER ARE LIABLE FOR ACTING DEFICIENTLY

MEMORIAL ON BEHALF OF THE PETITIONER

ISSUE A: WHETHER E-LEARNER CAN BE RESPONSIBLE FOR THE VIOLATION

ISSUE B: WHETHER E-LEARNER’S RIGHTS UNDER THE CONSTITUTION OF

ISSUE C: WHETHER MR. JAGDEEP IS LIABLE FOR CRIMINAL DEFAMATION

MEMORIAL ON BEHALF OF THE PETITIONER

ISSUE D: WHETHER OFFICIALS OF E-LEARNER ARE LIABLE FOR ACTING

MEMORIAL ON BEHALF OF THE PETITIONER

ISSUE A: WHETHER E-LEARNER CAN BE RESPONSIBLE FOR THE VIOLATION

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

[III] The collection of Data by E-Learner is unconstitutional

[IV] E-Learner breached its duty to safeguard personal data

ISSUE B: WHETHER E-LEARNER’S RIGHTS UNDER THE CONSTITUTION OF

[I] The Contract was terminated illegally by the government

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

ISSUE C: WHETHER MR. JAGDEEP IS LIABLE FOR CRIMINAL DEFAMATION FOR

MEMORIAL ON BEHALF OF THE PETITIONER

[I] An imputation was published concerning E-Learner.

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

ISSUE D: WHETHER OFFICIALS OF E-LEARNER ARE LIABLE FOR ACTING

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

bailee in such circumstances is determinable no doubt but so long as it is not determined

MEMORIAL ON BEHALF OF THE PETITIONER

PRAYER FOR RELIEF