MEMORIAL for RESPONDENT TABLE OF CONTENTS

TEAM CODE: R

THE NINTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2018

IN THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL OF BOHEMIA

IN THE MATTER OF:

LUTYEN TV PVT. LTD. V. COMPETITION COMMISSION OF

AND BOHEMIA

TOJO

APPELLANT RESPONDENT

CIVIL APPEAL NO. _____ / 2018

CLUBBED WITH

LUTYEN TV PVT. LTD. V. SANDY HOME STORE

AND

RK

APPELLANT RESPONDENTS

CIVIL APPEAL NO. ______/2018

CLUBBED WITH

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MEMORIAL for RESPONDENT TABLE OF CONTENTS

LUTYEN TV PVT. LTD. V. SANDY HOME STORE

APPELLANT RESPONDENT

CIVIL APPEAL NO. ______/2018

CIVIL APPEALS FILED UNDER SECTION 53B OF THE COMPETITION ACT, 2002

MEMORANDUM SUBMITTED ON BEHALF OF THE RESPONDENTS

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MEMORIAL for RESPONDENT TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF CONTENTS.................................................................................................................I

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

INDEX OF AUTHORITIES........................................................................................................VIII

STATEMENT OF JURISDICTION............................................................................................. XVI

STATEMENT OF FACTS.........................................................................................................XVII

STATEMENT OF ISSUES...........................................................................................................XX

SUMMARY OF ARGUMENTS...................................................................................................XXI

WRITTEN SUBMISSIONS............................................................................................................1

I. THE ORDER PASSED BY CCB UNDER SECTION-43 A WAS JUSTIFIED............................1

A. LUTYEN TV FAILED TO NOTIFY THE ACQUISITION WITHIN 30 DAYS OF THE

EXECUTION OF APA...............................................................................................................2

i. Acquisition of casting division triggered merger thresholds 3

ii. Execution of APA Was the Trigger Event 5

iii. Subsequent Consummation Violated Standstill Obligations 6

B. Earlier market purchases were connected with such acquisition and were thus

notifiable.................................................................................................................................7

Regulation 9(4) of the Combination Regulations necessitates filing of a single notification

in case any of the several transactions which are interconnected by intent...........................7

The market purchases were made with an intent to gain control of the casting division.......7

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The acquisition was only in furtherance of the market purchase to achieve the ultimate

intended effect of gaining control...........................................................................................7

II. LUTYEN TV’S PACKAGE STRATEGY WAS IN CONTRAVENTION UNDER SECTION 3 AND

SECTION 4 OF THE ACT............................................................................................................8

A. THE RELEVANT MARKET IS MARKET FOR MANUFACTURE AND SALE OF U-HD

TELEVISION IN THE GEOGRAPHICAL TERRITORY OF BOHEMIA...............................................9

i. The Relevant Product Market is the market for manufacture and sale of U-HD

Television. 9

ii. The Relevant Geographic Market is the Bohemian Market 12

B. LUTYEN T.V. IS IN A DOMINANT POSITION IN RELEVANT MARKET..............................12

C. LUTYEN TV HAS ABUSED ITS POSITION OF DOMINANCE BY IMPOSING TIE-IN

ARRANGEMENT IN VIOLATION OF S. 3 AND S. 4 OF THE ACT...............................................15

i. The package offer by Lutyen amounts to Tie-in Arrangement. 16

ii. Lutyen leveraged its dominant position in the market of Ultra-HD television to

affect the market of casting devices. 19

D. LUTYEN FORECLOSED THE MARKET CAUSING AAEC IN BOHEMIA..............................20

III. LUTYEN TV’S CONDUCT LEAD TO VIOLATION OF CCB’S‘NO EXCLUSIVE

ARRANGEMENT’ UNDER SECTION 31 OF THE COMPETITION ACT..................................22

A. LUTYEN TV’S CONDUCT RESULTED IN EXCLUSIVE DEALING.......................................22

B. THE AGREEMENT HAS LED TO DENIAL OF MARKET ACCESS..........................................23

IV. LUTYEN TV’S DISCOUNT POLICY WAS IN CONTRAVENTION UNDER SECTION 3(4)(E)

OF THE COMPETITION ACT.....................................................................................................24

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A. LUTYEN TV’S DISCOUNT POLICY AMOUNTS TO RESALE PRICE MAINTENANCE.........25

B. LUTYEN HAS SUBSTANTIAL MARKET POWER TO CAUSE AAEC IN BOHEMIA..................26

C. THE AGREEMENT CAUSED APPRECIABLE ADVERSE EFFECT ON COMPETITION............27

i. The agreement has anti-competitive effects on the competition 27

ii. Agreement has caused no pro-competitive effect in the market 29

V. SANDY HOME STORE IS NOT IN CONTRAVENTION UNDER SECTION-3(4)(D) OF THE

COMPETITION ACT.................................................................................................................30

A. THERE IS NO AGREEMENT IN WRITING OR IN ANY INFORMAL MANNER...................31

i. There is no duty to deal with the products of lutyen tv 32

ii. Right of refusal to stock existed. 33

B. THE CONDUCT OF REFUSAL TO DEAL BY SANDY DIDN’T CAUSE AAEC......................34

i. Sandy home store didn’t have sufficient market power. 34

ii. There Was No Intention To Create Monopoly Of Sandy’s Product 35

iii. arguendo, Sandy did not cause AAEC in Bohemia 36

C. THERE WAS OBJECTIVE JUSTIFICATION FOR SUCH REFUSAL.........................................37

i. There was economic justification for such refusal. 38

ii. Termination on the ground of improper conduct 38

iii. Termination as corrective action. 39

PRAYER...............................................................................................................................xxii

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MEMORIAL for RESPONDENT LIST of ABBREVIATIONS

LIST OF ABBREVIATIONS

S Section

AAEC Appreciable Adverse Effect on Competition

AIR All India Reporter

Anr Another

Art Article

APA Asset Purchase Agreement

CCB Competition Commission of Bohemia

BOM Bombay

CCB Competition Commission of Bohemia

CCI Competition Commission of India

Cir. Circuit

CLA Corporate Law Advisor

CMLR Common Law Market Report

Co. Company

Columbia Bus. L. Columbia Business Law Review

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MEMORIAL for RESPONDENT LIST of ABBREVIATIONS

Rev

Comp LJ Company Law Journal

COMPAT Competition Appellate Tribunal

CompLJ Competition Law Journal

CompLR Competition Law Review

Corp. Corporation

DG Director General

Div. Division

DLR Delhi Law Review

DLT Delhi Law Times

E.C. European Commission

ECJ European Court of Justice

ECR European Commission Report

ECR European Court Reports

Ed. Edition

F. Supp. Federal Supplement

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MEMORIAL for RESPONDENT LIST of ABBREVIATIONS

F.T.C. Federal Trade Commission

Id. Ibid

ILR Indian Law Review

Inc. Incorporation

ISPs Independent Service Providers

L. Law

Ltd. Limited

Lutyen TV. Pvt Ltd. Lutyen TV

MRTPC Monopolistic and Restrictive Trade Practice Commission

No. Number

O.F.T. Office of Fair Trade

Ors. Others

Rev. Review

RTP Restrictive Trade Practices

SC Supreme Court

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MEMORIAL for RESPONDENT LIST of ABBREVIATIONS

SCALE Supreme Court Almanac

SCC Supreme Court Cases

TFEU The Treaty On The Functioning Of The European Union

U.K. United Kingdom

U.S. United States

v Versus

Vol. Volume

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MEMORIAL for RESPONDENT INDEX of AUTHORITIES

INDEX OF AUTHORITIES

STATUTES

Competition Act 2002 43

The Competition Act 2002 22, 23, 26

The Competition Commission of India (Procedure in regard to the transaction of Business

relating to combinations regulations) 2011 21, 22, 24, 26

CASES

A. INDIAN CASES

All India Tyre Dealers’ Federation Informant v. Tyre Manufacturers [2013] CompLR

92(CCI) 48

Ashish Ahuja v. Snapdeal and Sanddisk, Case No. 17/2014 dated 19.05.2014 49

Belaire Owner's Associationv DLF Limited Haryana Urban Development Authority

Department of Town and Country Planning State of Haryana [2011] CompLR 239 (CCI) 29

Consumer Guidance Society v Hindustan Coca Cola Beverages Ltd., Case No. UTPE

99/2009 (CCI). 41

DGCOM Buyers and Owners Association, Chennai v M/s. DLF Southern Homes Pvt. Ltd.

Chennai [2012] CompLR 1164 (CCI). 31

Fx Enterprises Solutions Ltd v Hyundai Motor India Limited [2017] CompLR 586 (CCI).43,

46, 48

Ghanshyam Dass Vij v Bajaj Corp. Ltd. and Ors. [2015] (CCI) 47

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MEMORIAL for RESPONDENT INDEX of AUTHORITIES

GKB Hi Tech Lenses Private Limited v Transitions Optical India Private Limited Case No

01 of 2010 Order date 16-05-2012 [4.16]; 33

In re Aditya Birla Nuvo Ltd., Combination Registration No C-2012/07/69 23

In re Baxalta, Combination Registration No C-2015/07/297 21, 22

In re Cairnhill CGPE Ltd., Combination Registration No C-2015/05/276 23

In re Eli Lilly, Combination Registration No C-2015/07/289 23, 24

In re Mankind, Combination Registration No C-2015/05/276. 27

In re New Moon B.V.,Combination Registration No C-2014/08/202 27

In re Piramal, Combination Registration No C-2015/02/249 26

In re Schulke India, Combination Registration No C-2015/12/349 23

In re SCM Soilfert, Combination Registration No C-2014/05/175 21

In re TCSIL. Appeal No 37of 2016 (COMPAT). 27

In re ZFCL, Combination Registration No C-2014/06/181. 27

JAK Communications Pvt Ltd v Sun Direct TV Pvt Ltd [2011] CompLR 519 (CCI) 29

Kiran Enterprise v Abbott Healthcare Private Limited Mumbai [2016] SCC OnLine 143

(Comp AT) 54

M/s Maharashtra State Power Generation Company Ltd v M/s Mahanadi Coalfields Ltd

and M/s. Coal India Ltd [2013] CompLR 910 (CCI) 29

M/s. Dipak Nath v M/s. Oil and Natural Gas Corporation Ltd. [2013] CompLR 711 (CCI)

28

M/s. Sandhya Drug Agency v Assam Drug Dealers Association and Ors. [2014] CompLR

61 (CCI) 27

Manoj Hirasingh Pardeshi v Gilead Sciences Inc., USA [2013] CompLR 391 (CCI) 28

Mr. Achyut P. Rao v M/s. Designarch Infrastructure Pvt. Ltd. [2013] CompLR 767 28

Mrs. Belarani Bhattacharyya v. M/s. Asian Paints Ltd. & Anr., 2012 CompLR 110 (CCI) 31
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MEMORIAL for RESPONDENT INDEX of AUTHORITIES

PDA Trade Fairs v India Trade Promotion Organization [2012] CompLR 1160 (CCI 31

Re Tata Iron & Steel Co Ltd and Indian Tube Co Ltd, RTP Enquiry No. 39/1984, order

dated 23 September 1987 56

Re Usha International Ltd, Enquiry No. 15/ 1984, order dated 1 April 1986; Re Voltas Ltd,

RTP Enquiry No. 14/1987, Order dated 22 July 1987. 55

Schott Glass India Pvt. Ltd. v Competition Commission of India & Anr. [2014] CompLR

295. 38

Shamsher Kataria v Honda Siel Cars India Ltd. [2014] CompLR 1 (CCI) 31

Shri Surinder Bhakoo v The HDFC Bank Ltd (CCI 22.03.2011) para16. 47

Sonam Sharma v Apple & Ors. [2011] CompLR 24 (CCI) 35

South City Group Housing Apartment Owners Association v Larsen & Toubro Ltd. and Shri

Dinesh P. Ranka [2013] CompLR 841 (CCI) 31

The Chairman, SEBI v Shriram Mutual Fund and Anr [2006] 5 SCC 361. 26

The National Stock Exchange of India Ltd. v Competition Commission of India [2014]

CompLR 304 32

Toyota Kirloskar Motor (P.) Ltd. V Competition Commission of India [2017] CAT 7

(CompAT). 44

United States v Griffith 334 US 100. 42

Varca Druggist & Chemist & Others v Chemists & Druggists Association, Goa [2012]

CompLR 838 (CCI) 27, 32

Wiley India Pvt [2016] SCC OnLine CCI 32 53

B. FOREIGN CASES

Amerinet Inc v Xerox Corp 972 F 2d 1483 36

Case 161/84, Pronuptia v Pronuptia [1986] ECR 353. 44

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MEMORIAL for RESPONDENT INDEX of AUTHORITIES

Case 193/83, Windsurfing International v Commission [1983] OJ L229/1. 39

Case 2000/75, Virgin/ British Airways [2000] OJ L 30/1. 31

Case 31/80, Lorêal v de nieuwe amck [1980] ECR 3775 [25] 28

Case 66/86, Ahmed Saeed Flugreisen and Silver Line Reisebüro GmbH v Zentrale zur

Bekämpfung unlauteren Wettbewerbs [1989] ECR 0803 28

Case 91/299, Soda Ash/Solvay [2003] OJL [138 31

Case C-202/07 P, France Télécom SA v Commission [2009] ECR I-2369. 33

Case C-310/93 P, BPB Industries plc and British Gypsum Ltd v Commission [1995] ECR I-

865 32

Case C-333/94 P, Tetra Pak International SA v Commission [1996] ECR I-5951 35

Case C-550/07 P, AKZO Nobel Chemicals Ltd. V Commission [2010] ECR I-8301 [69] 33

Case M-774, Saint-Globain/Wacker-Chemic/Nom v Commission [1997] 4 CMLR 25 32

Case T-128/98, Aeroports de Paris v Commission [2000] ECR II-3929 33

Case T-201/04, Microsoft v Commission [2007] ECR II-000. 34

Case T-228/97, Irish Sugar plc v Commission [2001] ECR II-2969 32, 41

Case T-286/09, Intel Corp. v Commission [2014] ECLI 547. 39

Case T-301/04, Clearstream Banking AG v Commission [2009] ECR II- 3155 [140]- [142]. 33

Case T-66/01 Imperial Chemical Industries Ltd. v Commission [2010] ECR II-2631. 40

CaseC-53/92, Hilti AG v Commission [1994] ECR I-667 36

Cisty Sports, 555 F.3d at 1197 54

Collins Inkjet Corp v Eastman Kodak Co 781 F 3d 264 (6th Cir 2015) 36

Commercial Catering Equipment Case CE/9856/14 (CMA) 42

Compare Klein v American Luggage Works, Inc. 323 F.2d 787. 50

Copperweld Corp. v Independence Tube Corp 467 US 752 44

Copperweld Corp. v Independence Tube Corp [1984] 467 U.S. 752. 52

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MEMORIAL for RESPONDENT INDEX of AUTHORITIES

Data Gen Corp v Grumman Sys Support Corp 36 F 3d 1147 36

Eastern States Retail Lumber Dealers’ Association v United States 234 U.S. 600 (1914) 49

Eastman Kodak v Image Technical Services Inc 504 US 541 (1992) 34

Europemballage Corporation and Continental Can Company Inc v Commission of the

European Communities [1973] ECR 0215; 28

FTC v Beech-Nut Packing Co [1921] SC 66; 42

Hilti AG v Commission [1994] ECR I-667; 32

Jefferson Parish County Hospital Dist v Hyde 466 US 2 (1984) 35

Leegin Creative Leather Products Inc. v PSKS Inc. [2007] 551 U.S. 877. 42

Leitch Mfg Co v Barber Co 302 US 458 (1938) 35

Michelin [2002] 5 CMLR 388 38

Michelin v EC Commission [1983] ECR 3461. 51

Morton Salt Co v Suppiger Co. 314 US 488 (1942 35

Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio [2008] ECR I-

4863 [37] 33

N. V. Netherlands Banden Industrie Michelin v Commission of the European Communities

[1983] ECR 3451 [41]; 27

Shri Surinder Bhakoo v The HDFC Bank Ltd [2011]110 SCL 17 (CCI). 46

Tele marketing v CLT and IPB [1985] ECR I-3261 32

Times-Picayune Publishing Co et al v United States 345 US 594 (1953) 34, 47

Ultra Finishing Ltd Case CE/9857-14 42

United Brands and Co v Commission [1978] ECR 207 28, 31

United States v EI du Pont de Nemour and Co. 351 US 377 (1956) 29

United States v Griffith et al. 334 U.S. 100. 39

United States v Microsoft Corp 253 F3d 34 36

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MEMORIAL for RESPONDENT INDEX of AUTHORITIES

United States v Paramount Pictures, Inc 334 U.S. 131 [1948]. 26

Verizon Commc’nc, Inc v Law Officers of Curtis v Trinko, LLP [2004] 540 U.S. 398. 48

Virgin Atlantic Airways v British Airways [2001] 257 F3d 256. 37

Virtual Maintenance v Prime Computer [1990] 735 F Supp 231. 36

Walker Process Equipments Inc. v Food Machinery and Chemical Corp. [1965] 382 US 172

28

ACADEMIC MATERIAL

A. Commentaries and Textbooks

Abir Roy and Jayant Kumar, Competition Law in India (Eastern Law House 343 2014) 33

D Mittal, Competition Law and Practice, (3rd edn, Taxmann 2011) 121 42

DP Mittal, Competition Law & Practice (2nd edn, Taxmann) 241 42

G.R. Bhatia, ‘Merger Control Regime in India’ in Manoj Kumar Sinha, Emerging

Competition Law, (Wolters Kluwer 2017) 20

Jonathan Faull and Ali Nikpay, The EC Law of Competition (2nd edn 2007) 31

SM Dugar, Guide to Competition Act, 2002 (7th edn. Lexis Nexis 2018) 23

B. ARTICLES

AC Harberger, Monopoly and Resource Allocation, [1954] 44 AMERICAN ECONOMIC

REVIEW 77, 87. 31

Benjamin Edelman, Leveraging market power through tying and bundling: DOES GOOGLE

BEHAVE ANTI-COMPETITIVELY? 35

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MEMORIAL for RESPONDENT INDEX of AUTHORITIES

Christodoulos Stefanadis, Downstream Vertical Foreclosure and Upstream Innovation, The

Journal of Industrial Economics Vol. 45, No. 4 (Dec., 1997), 38

Comanor, Vertical Price–Fixing, Vertical Market Restrictions, and the New Antitrust Policy

[1985] Harv. L.Rev 983 46

Ellen Meriwether, Putting the 'Squeeze" on Refusal to deal Cases. (2010). American Bar

Association, 24. 49

Joseph P. Bauer, Antitrust Implications of Aftermarkets [2007] Antitrust Bull 52 40

Karan Singh, Restrictive Trade Practices and Public Interest [2007] 40

Kaushal Sharma, SSNIP Test: A Useful Tool, Not A Panacea [2011] Competition Law

Reports; European Commission 29

Kenneth G. Elzinga & David E. Mills, The economics of RPM. 42

M Spence, “Notes on advertising, Economies of Scale and Entry Barriers’ [1980] 95 Quaterly

Journal of Economics 493 32

Michael Wise, Competition law and Policy in the European Union [2005];

http://www.oecd.ord/dataoecd/7/41/35908641.pdf.. 31

Morris A. Adelman, ‘Economic Aspects of the Bethlehem Opinion’ [1959] 45 VA L Rev 29

Northern Pacific Railway Co et al v United States, 356 US 1; International Competition

Network, The Unilateral Conduct Working Group, Report on Tying and Bundled

Discounting (White Paper, Cm 356, 2009) 34

P Ippolito, ‘RPM: Empirical Evidence from Litigation [1991] J.L. & ECON 263. 46

Sachin Goyal and Konark Bhandari, ‘Gun Jumping in India, Journal of Antitrust

Enforcement’ [2017]. 20, 23

Steiner, The Evolution and Applications of Dual–Stage Thinking [2004] The Antitrust

Bulletin 49 46

The Prerequisites and Effects of Resale Price Maintenance [1955] Yale Law School 825. 42
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MEMORIAL for RESPONDENT INDEX of AUTHORITIES

MISCELLANEOUS

DG Competition Discussion Paper on the application of Article 82 of the Treaty to

exclusionary abuses (Brussels December 2005 27

ICN UnilateralConduct Workbook ,Chapter 5: Exclusive Dealing [2013] 38

International Competition Network, The Unilateral Conduct Working Group, Report on

Tying and Bundled Discounting (White Paper, Cm 356, 2009) 32

Notification No. S.O. 674 (E) dated 4th March 2016 20

Notification No. S.O. 674 (E) dated 4th March 2016 (MCA 21

Notification No. S.O. 988 (E) dated 27th March 2017 19

Notification No. S.O. 989 (E) dated 27th March 2017(MCA) 21

Organisation for Economic Co-operation and Development (OECD), Roundtable on Resale

Price Maintenance, 2[008], 227. < https://www.oecd.org/daf/competition/43835526.pdf 43

U.S. Department of Justice and the Federal Trade Commission, Horizontal Merger

Guidelines(Dec.21,2011,11:49PM).

http://www.justice.gov/atr/public/guidelines/horiz_book/hmg1.html. 27

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MEMORIAL for RESPONDENT STATEMENT of JURISDICTION

STATEMENT OF JURISDICTION

The appellants have humbly approached National Company Law Appellate Tribunal

(NCLAT), constituted under S.410 of the Companies Act, 2013 by way of appeal under

Section-53B of The Competition Act,2002 (No.12 of 2003) against

❖ CCB’s order dated 03-08-17 under S.43A of The Bohemian Competition Act 2002;

❖ CCB’s common order in Case No. 1 of 2018 & Case No.2 of 2018 dated 19-01-18

under S. 27 and S. 42 of The Bohemian Competition Act 2002 and;

❖ CCB’s order in Case No. 3 of 2018 under S. 27 of The Bohemian Competition Act

2002

The respondents respectfully submit to the Appellate Jurisdiction of the NCLAT and shall

accept and execute any judgment of this tribunal in its entirety and good faith.

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MEMORIAL for RESPONDENT STATEMENT of FACTS

STATEMENT OF FACTS

1. The Republic of Adonis is the second most populous (the total Population is 121.09 crores

as per the 2011 census report ), developing democratic nation and have lengthiest written

constitution in the world and considered as supreme law. The majority of the population

belongs to the Aryadharma religion (96.63 crores: 79.8%) and the minority religion Saracen

(17.22 crores: 14.2%). Delta is the capital city of the Adonis.

2. Most legal orders based on a hierarchical structure of legal acts with the constitution at the

apex. All legislation and other legal measures of a State must be compatible with the

constitutional values if not then it declared as null and void by judicial institution. According

to the Constitution of Adion, the State has certain obligations towards its citizens, including

but not limited to the guarantee of fundamental rights, and the Supreme Court of Adion acts

as a preserver of rights. On 24 August 2017, the Supreme Court of Adion, declared ‘Right to

privacy as Fundamental right’.

3. Adion Institute of Technology (hereinafter referred to as AIT),prominent institutes for

technological education situated in the city of Mahagun. Inush, aged 20 years, student of

B.Tech second year (CSE) at AIT. He is an avid developer, works as a freelancer for both app

and web development projects. While working, he comes across a digital platform named,

ZitTub, which gives him easy access to develop applications and share among the ZitTub

Community. Soon he finds a way to create online auctioneering and develops a code for an

app wherein one can list old belongings and begins developing the app for auctioneering.

4. On 17th January 2022, Razin, a prime -time journalist receives information about a

application named Getadeal on the ZitTub community wherein photos of prominent female

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MEMORIAL for RESPONDENT STATEMENT of FACTS

journalists, academicians, activists of minority religions, primarily Saracens, are stolen from

their social media handles. Consequently, the women are put up for an online auction. Soon,

this news became a highlight on prime-Time resulted in a huge public outrage. People

expressing their strong views on the social media platform, Glitter. Hashtags about the

application and women's rights (Example, #Threat2Women_BanGetadeal,

#Privacy_underthreat, etc.) matter are trending and became a moot point of discourse in

international media as well. Many nationwide protests were organized in solidarity against

cybercriminals and increasing social media crimes against women. Adion observes protests

for the next few days in various parts, and soon protests took a sectarian turn. Riots break out

in several parts leading to damage of public property and several injured in the public

outrage.

5. Devices connected to the internet can now gather up a user's data, sometimes even without

the user's consent. This has raised various issues, including the right to privacy. To address

this, the Ministry of Electronics, and Information Technology (MeitY) introduced the

Personal Data Protection Bill, 2019 (‘PDP Bill’) to Parliament in 2019. The bill was referred

to a Joint Parliamentary Committee, whose report led to the Data Protection Bill 2021 (‘DP

Bill’). The bill covers both personal and non -personal data but has failed to see the light of

day as of now.

6. On 21st January, The State Cyber Cell, while investigating the matter, traced down the IP

address to the Computer Lab of AIT and Inush was arrested on suspicion and presented

before the magistrate for further custody and investigation. Mr Wiki Zen is a social rights

activist and has been researching on data privacy, data fiduciary issues for more than ten

years, has filed public interest litigation (PIL) before the Hon’ble Supreme Court under

Article 32 of the Constitution on 31stJanuary 2022. In his petition, he prayed before the

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MEMORIAL for RESPONDENT STATEMENT of FACTS

hon’ble Supreme court to held State machinery responsible for failing to safeguard women’s

rights in digital space and sought accountability of hosting platforms such as ZitTub

concerning the safety of citizens and Privacy Protection. He also raised serious concerns over

uncontrollable public outrage and State failure in maintaining law and public order.

7. Niras is a 19 -year -old female. She recently cleared her Class XII board examinations

recently. On 10th February 2022, she moved out of her hometown to study B.Sc (Chemistry

Hons.) in Delta University located in the capital city of Delta. Amresh is a batchmate of Niras

and was a very close friend. He stole her laptop and morphed her images using digital app

called “9PAPS” and used the “Bikini Suit Photo Editor” then download naked photos in it

and created the fake profile using email of Niras (niras298765@gmail.com) but with different

IP address with the name of nirasnudies on famous networking site Metabook and and upload

nudes on other social media handles also with contact details to take revenge on the rejection

of his romantic advancement by Niras. On 21st February 2022, and also for next two-three

days Niras received an obscene call regarding her availability and monetary charges as a sex

worker and the caller told her about the profile. She committed suicide on 24th February

2022 by drinking poison. On 28th February 2022, police arrested Amresh for further

investigation based on findings from the cyber police branch.

8. This was second incident similar incident in two months wherein womens were targeted,

harassed through digital platform. Sakhi, a Women’s rights organization, organized a country

-wide protest concerning privacy and security violations of women through social media,

digital intermediaries, etc., on 2nd March 2022. They demanded strict action against

Metabook and wanted the State to seek accountability for such events.

9. Consequently, owing to the public pressure and media outage, the National Commission

for Women of Adion (NCW) decided to intervene and wrote a letter on 10th March, 2022,
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MEMORIAL for RESPONDENT STATEMENT of FACTS

addressing the CJ of Apex court of Adion stating their concern about lacuna in Adion’s

justice system pertaining to privacy and safety of women. The Apex Court took suo moto

cognizance over this matter on 21st March, 2022. The Hon’ble Apex Court has converted the

said letter into a petition. It clubbed the above matter with Mr Wiki Zen’s ongoing PIL since

both were premised around social media crimes committed against women. The matter is

listed for final hearing on 8th April 2022 before the 2 -division bench of the court for the

common hearing.

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MEMORIAL for RESPONDENT ISSUES for CONSIDERATION

STATEMENT OF ISSUES

-I-

WHETHER THE PRESENT CASE IS MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT UNDER

APPROPRIATE JURISDICTION?

-II-

WHETHER THE STATE AND INSTITUTIONAL ACTORS HAVE FAILED IN THEIR DUTY AND

OBLIGATION UNDER CONSTITUTIONAL DEMOCRACY TO PROTECT THE PRIVACY AND ENSURE

WOMEN’S SAFETY IN DIGITAL SPACE?

-III-

WHETHER THE EXISTING JUSTICE SYSTEM HAS FAILED TO IMPOSE THE NECESSARY

REGULATORY FRAMEWORK OVER DIGITAL PLATFORMS CONCERNING DATA PRIVACY?

-IV-

WHETHER THE DIGITAL PLATFORMS, INTERMEDIARIES IN THIS MATTER WILL BE PROTECTED

UNDER CONTEMPORARY IT LEGAL FRAMEWORK CONCERNING THIRD PARTY INFORMATION,

DATA, OR COMMUNICATION LINK MADE AVAILABLE OR HOSTED BY HIM?

-V-

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MEMORIAL for RESPONDENT ISSUES for CONSIDERATION

WHETHER SANDY HOME IS IN CONTRAVENTION UNDER SECTION 3(4)(d) OF THE

COMPETITION ACT?

22
MEMORIAL for RESPONDENT PRAYER

SUMMARY OF ARGUMENTS

WRITTEN SUBMISSIONS

PRAYER

Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities

cited it is most humbly and respectfully prayed before this Tribunal to be graciously pleased

to-

I. HOLD the penalty imposed by CCB under s. 43A of the Act is justified;

II. HOLD that the Appellant contravened s. 3 and s. 4 of the Act;

III. HOLD that the Appellant violated CCB’s condition under section 31;

IV. HOLD the common order imposing penalty passed under s. 27 and s. 42 of

the Act is correct;

V. HOLD that Sandy Home Store did not contravene section 3(4)(d) of the Act

And pass any other order the Hon’ble Tribunal may deem fit in the interest of justice, equity

and good conscience.

Most Respectfully Submitted on behalf of the Respondents;

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MEMORIAL for RESPONDENT PRAYER

Sd-/

Counsels for the Respondents

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