Best Team Memorial Petitioner Symbiosislawschool Moot 06 2 Muzzamil212393 Hnluacin 20221009 194927 1 21

SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.
Page 1 Sunday, October 09, 2022

Printed For: Md Muzzamil Ibrahim, Hidayatullah National Law University
SCC Online Web Edition: http://www.scconline.com
© 2022 EBC Publishing Pvt.Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
6th Symbiosis Law School Hyderabad National Moot, 2022

Best Team Memorial - Petitioner
In the Hon'ble Supreme Court of Atlantis

In Matter of
(Article 139-A read with Article 32 of the Constitution of India)
Tanvi … Petitioner No. 1;
Versus
Government of Atlantis … Respondent No. 1;
Data Protection Authority … Respondent No. 2.
And
Friendsbook … Petitioner No. 2;
CEO of Friendsbook … Petitioner No. 3;
Versus
Government of Atlantis … Respondent No. 1;
Data Protection Authority … Respondent No. 2.
As Submitted to the Chief Justice & other puisne Judges of the Supreme Court of
Atlantis.
TABLE OF CONTENTS
LIST OF ABBREVIATIONS 4
INDEX OF AUTHORITIES 5
STATEMENT OF JURISDICTION 9
STATEMENT OF FACTS 10
ISSUES RAISED 12
SUMMARY OF ARGUMENTS 3
ARGUMENTS ADVANCED 15
[ISSUE 1]- WHETHER THE PROVISIONS OF THE ACT ARE 15
UNCONSTITUTIONAL AND LIABLE TO BE STRUCK DOWN
[1.1] The impugned provisions violate the Right to Privacy under 15
Article 19 and 21 of the Constitution of India as they fail to meet
the test of proportionality
[1.1.1] The provisions lack the safeguard of legitimate purpose and 15
necessity
[1.1.2] That the impugned provisions are disproportionate and do 17
not pass the muster of Proportionality
[1.1.3] That there is lack of adequate procedural safeguards in the 18
form of Independent Parliamentary or Judicial oversight
[1.2] The impugned provisions vest broad, unguided discretionary 19
powers in the administrative authority
ISSUE II. WHETHER THE POWERS CONFERRED UPON THE CENTRAL 21
GOVERNMENT UNDER SECTION 87 OF THE ACT ARE ARBITRARY AND
THE SECTION SHOULD BE STRUCK DOWN?
[2.1] Section 86 vests unguided discretionary powers in the hands of 21
the Government
[2.1.1] A broad swath of power is granted to the government 21
[2.1.2] No procedural safeguards are provided under the impugned 23
section
-----------------------------------------------------------------------------------------------------------------------------------------------------------
[2.2] The impugned section leaves no scope for the functional 24

Independence of the DPA
[ISSUE 3] - WHETHER THE DPA HAS BEEN LAWFULLYE STABLISHED 25
UNDER THE ACT? IF NOT, CAN THE ACTIONS OF THE DPA STILLBE
HELDVALID
[3.1] The DPA is not sufficiently independent 25
[3.2] In arguendo even if the DPA has been lawfully established the 27
actions of the DPA are invalid as they are ultra-virus the Act
[ISSUE 4]: FRIENDSBOOK CAN BE HELD LIABLE UNDER LAW FOR 29
BREACH OF INTERMEDIARY RULES
[4.1] FRIENDSBOOK IS IN CVOMPLAINCE WITH DUE DELLIGENCE 30
OBLIGATIONS AS PER INTERMEDIARY RULES
[4.2] WHETHER FRIENDSBOOK CAN TAKE SAFE HARBOUR. S. 79 31
PRAYER 33
LIST OF ABBREVIATIONS
Abbreviations Meaning
& And
¶ Paragraph
§ Section
Ors Others
AIR All India Reporter
SCC Supreme Court Cases
SC Supreme Court
v Versus
Art./art. Article
Ltd Limited
Ed Edition
Del Delhi
Comm'n Commission
Hon'ble Honourable
UOI Union of India
Del HC Delhi High Court
INDEX OF AUTHORITIES
CASES
1. Accountant General v. Doraiswamy, (1981) 4 SCC 93 : AIR 1981 15
SC 783
2. Avnish Bajaj v. State (NCT of Delhi), (2005) 116 DLT 427 26
3. CCE v. Hari Chand, (2011) 1 SCC 236 15
4. Data Protection Act, 2021, § 12, 13, 14, 35 No. 373, Acts of 11, 15
Parliament 2021 (India)
5. Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, AIR 1954 18
SC 224
6. GN Nayak v. Goa University, (2002) 2 SCC 712 : AIR 2002 SC 21
790
7. Himmat Lal v. Police Commissioner, Ahmedabad, (1973) 1 SCC 19
227 : AIR 1973 SC 87
8. Hotel Sea Gull v. State of W.B., (2002) 4 SCC 1, 13 12
9. INDIA CONST. art. 14, 19 and 21 11, 13
-----------------------------------------------------------------------------------------------------------------------------------------------------------
10. Janardhan v. P.D.S.E., (1994) 6 SCC 506 24

11. K.S. Puttaswamy v. Union of India (2018) 12 11, 12, 13, 14
12. K.S Puttaswamy v. Union of India, (2017) 10 SCC 1 11, 12, 13, 14
13. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 19
14. Modern Dental College & Research Centre v. State of Madhya 12, 13
Pradesh, (2016) 7 SCC 353
15. My Space Inc. v. Super Cassettes Industries Ltd., (2017) 236 26
DLT 478
16. Papanasam Labour Union v. Madura Coats Ltd., (1995) 1 SCC 18
501
17. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology 15
[2002], (2002) 5 SCC 111
18. R.R. Verma v. Union of India, (1980) 3 SCC 402 : AIR 1980 SC 17
1461
19. R.R. Verma v. Union of India, (1980) 3 SCC 402 : AIR 1980 SC 15
1461
20. Rattan v. Managing Committee, (1993) 4 SCC 10 22
21. Sasikala Pushpa v. Facebook India, 2020 SCC OnLine Del 618 27
22. Secy v. Muraswamy, 1988 Supp SCC 651 21
23. Shreya Singhal v. Union of India (UOI), (2015) 5 SCC 1 : AIR 17
2015 SC 1523
24. Shreya Singhal v. Union of India, (2015) 5 SCC 1 15, 16
25. State of Bombay v. Krishnan, AIR 1960 SC 1223 24
26. State of Gujarat v. Jamnadas G. Pabri, (1975) 1 SCC 138 12
27. State of Jharkhand v. Govind Singh, (2005) 10 SCC 437 19
28. State of UP. Nooh, AIR 1958 SC 86 (91) 70 22
29. Subhash Chandra v. State of U.P., (1980) 2 SCC 471 15
30. Supreme Court Advocates-on-Record - Association v. Union of 17, 23
India, LNIND 2015 SC 611
31. Union of Journalists v. State of Bombay, AIR 1964 SC 161 24
32. West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 78 18
33. X v. Union of India, (2021) 280 DLT 57 26
STATUTES AND RULES
1. Aadhar Act, 2016, § 33, No. 47, Acts of Parliament, 2016 (India) 14
2. Data Protection Act, 2021, § 12, 13, 14, 35 No. 373, Acts of 11, 15
Parliament, 2021 (India)
3. Data Protection Act, 2021, § 3 cl 15, No. 373, Acts of Parliament, 24
2021 (India)
2021
2021 (India)
2021 (India)
7. Data Protection Act, 2021, § 54, 57, No. 373, Acts of Parliament, 24
2021 (India)
8. Data Protection Act, 2021, § 87, No. 373, Acts of Parliament, 17, 23
2021 (India)
9. Data Protection Act, 2021, No. 373, Acts of Parliament, 2021 25
(India)
-----------------------------------------------------------------------------------------------------------------------------------------------------------
10. Foreign Intelligence Gathering Laws : Germany, Library of 14

Congress
11. Information Technology (Intermediary Guidelines and Digital 25
Media Ethics Code) Rules, 2021, Rule 3
12. Information Technology (Intermediary Guidelines And Digital 26
Media Ethics Code) Rules, 2021, Rule 3(d)
Media Ethics Code) Rules, 2021, Rule 3(d)
Media Ethics Code) Rules, 2021, Rule 4
Media Ethics Code) Rules, 2021
16. Information technology Act, 2000, § 79 cl 2 (b), No. 21, Acts of 27
17. Information technology Act, 2000, § 79, No. 21, Acts of 26
18. Information technology Act, 2000, No. 21, Acts of Parliament, 25
2000 (India)
19 Investigatory Powers Act, 2016, S 138 15
20 The Intelligence Services Oversight Act, 1994 14
21. The Regulations of Interception of Communications and 14
Provision of Communication-related Information
OTHER AUTHORITIES
1. Committee of Experts under the Chairmanship of Justice B.N. 12, 14, 15, 20
Srikrishna, A Free and Fair Digital Economy
2. EU General Data Protection Regulation (GDPR) : Regulation (EU) 23
2016/679 of the European Parliament
3. the Council of 27 April 2016, 95/46/EC (General Data Protection 23
Regulation), OJ 2016 L 119/1
4. Whartons Concise Law Dictionary (2011) 12
CONSTITUTIONAL PROVISIONS
1. INDIA CONST. art. 12 17
2. INDIA CONST. art. 14 13
3. INDIA CONST. art. 19 and 21 13
4. INDIA CONST. art. 19(1)(g) 20
5. INDIA CONST. art. 19(2) 20
ARTICLES AND JOURNALS
1. Bedavyasa Mohanty, INSIDE THE MACHINE : 12
CONSTITUTIONALITY OF INDIA's SURVEILLANCE APPARATUS, 12
IJLT (2016) 206
2. Renjith Mathew, ‘Personal Data Protection Bill, 2019 - Examined 16
through the Prism of Fundamental Right to privacy - A Critical
Study’ SCC Online (22 May 2020)
3. Siddharth R. Gupta and Kerti Sharma, 2021 SCC OnLine Blog 17
Exp 76
FOREIGN JUDGEMENTS
1. A.G. for Canada v. Hallet, [1952] A.C. 427 24
2. Cf. Iron & Steel Co. v. Workmen, AIR 1958 SC 130 (137) 24
3. Chartered Bank v. Employees Union, AIR 1960 SC 919 (922) 24
4. Comm'n v. Austria, Case C-614/10, ECLI : EU : C : 2012 : 631 20
-----------------------------------------------------------------------------------------------------------------------------------------------------------
5. Ct Local Gout Roard v. Arlidge, [1915] A.C. 120 (132) 22

6. Data Protection Act, 2021, § 54, 57, No. 373, Acts of Parliament, 24
2021
7. European Commission v. Federal Republic of Germany, (Case C- 20
518/07) (2010) 1 ECR 188
8. Franklin. Minister of Town and Country Planning, (1947) 2 All ER 22
299
9. Frome United Breweries v. Bath Justices, [1926] A.C. 586 (591, 21
593) H.L.
10. Irani v. State of Madras, AIR 1961 SC 1731 24
11. Klass v. Federal Republic of Germany, (Series A, No. 28) (1979- 20, 21
80) 2 EHRR 214)
12. Lord Hewart in R. v. Sussex Justices, [1924] 1 K.B. 256 (259) 22
13. Prescott v. Birmigham Corpn., (1954) 3 All ER 698 (C.A.) 24
14. Ranger v. G.W. Ry., [1854] 5 H.L.C. 72 (89) 21
STATEMENT OF JURISDICTION
The supporters of Tanvi moved the Hon'ble Supreme Court of Atlantis under Article
32 of the Constitution of India in view of the multiple proceedings pending against her
before the Data Protection Authority and the Magistrate. The Hon'ble Supreme Court of
Atlantis decided to hear the matter and has summoned the Government of Atlantis
and the Data Protection Authority for their arguments. The Hon'ble Supreme Court also
simultaneously taken up arguments on behalf of Friendsbook in relation to their role in
the aforementioned incident by clubbing all matters before various judicial forums. The
Hon'ble Court clubbed the Writ Petition filed under Article 32 of the Constitution of
India and the matter of CEO of Friendsbook pursuant to its powers under Article 139-A
of the Constituion of India
Article 139-A of the Constitution of India—
(1) “Where cases involving the same or substantially the same questions of law
are pending before the Supreme Court and one or more High Courts or before two
or more High Courts and the Supreme Court is satisfied on its own motion or on an
application made by the Attorney-General of India or by a party to any such case
that such questions are substantial questions of general importance, the Supreme
Court may withdraw the case or cases pending before the High Court or the High
Courts and dispose of all the cases itself….”
Read with
Article 32 of the Constitution of India—
“Article 32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part……”
All of which is respectfully submitted.
STATEMENT OF FACTS
BACKGROUND
The Data Protection Act, 2021 (“Act”) has been enacted in Atlantis which is a union
of states, with a form of democracy similar to that of India. There was widespread
uproar against the Act by Several news houses, political leaders, and activists because
of the sweeping powers it grants to the Government and the unchecked control it
-----------------------------------------------------------------------------------------------------------------------------------------------------------
grants to the Data Protection Authority especially the exemption it can grant to
Government agencies from being subjected to the provisions of the Act. The prime
concern was that Act does not prioritize the protection of the right to privacy of
individuals, especially with regard to the use of social media platforms.
FRIENDSBOOK : A ‘SIGNIFICANT SOCIAL MEDIA INTERMEDIARY’
The Information Technology Act, 2000 provide the Government of Atlantis the
power to regulate entities which are termed as ‘intermediaries’, as defined under the
IT Act. The Government of Atlantis had also issued the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary
Rules”), which provides for due diligence obligations of intermediaries to be eligible for
exemption from liability under law in certain cases. One such obligation under the
Intermediary Rules is for an intermediary to comply with the provisions of the Act.
‘Friendsbook’ is a platform where users can create profiles and share information
and videos etc. with one another. The platform is a success as it provides freedom
to the users to express themselves freely, without any hindrances. Friendsbook is
categorized as a ‘significant social media intermediary’ under the Intermediary
Rules. Friendsbook has also represented to the Government of Atlantis that it is
compliant with all applicable obligations under the Intermediary Rules.
POST ON FRIENDSBOOK BY TANVI
Tanvi has a profile on Friendsbook which is private, and thus the content is only
visible to select individuals. She shares a post on her profile highlighting the
unfortunate circumstances in the nation during COVID 19, also criticizing the
government about their ineffectual resolution of the current situation. The post gathers
a lot of support from her audience with multiple users liking it and sharing screenshots
on other platforms.
ARREST OF TANVI AND THE CEO OF FRIENDSBOOK
Within a day of Tanvi sharing these thoughts on her profile she is arrested by the
police in Atlantis and produced before a Magistrate who remanded her to 14-day
judicial custody without stating reasons for it. Subsequently, it is found that her post
is removed/disabled from the Friendsbook application, and her profile has been
blacklisted.
The Data Protection Authority of Atlantis takes suo moto cognizance of the incident
and starts an inquiry into the matter. They state that this has been done as per
Section 86 of the Act. In addition to arresting Tanvi, the Data Protection Authority also
arrests the Chief Executive Officer of Friendsbook since the content was shared on the
Friendsbook platform.
TANVI's SUPPORTERS APPROACH THE HON'BLE SUPREME COURT
Tanvi's supporters demand to know the reasons for her arrest and are told that it is
in furtherance of the directive by the Government of Atlantis. They then move the
Hon'ble Supreme Court of Atlantis in view of the proceedings pending against her
before the Data Protection Authority and the Magistrate. The Hon'ble Supreme Court of
Atlantis has now decided to hear the matter and has summoned the Government of
Atlantis and the Data Protection Authority for their arguments. The Hon'ble Supreme
Court has also simultaneously taken up arguments on behalf of Friendsbook in relation
to their role in the aforementioned incident by clubbing all matters.
ISSUES RAISED
[ISSUE 1]
WHETHER PROVISIONS OF THE ACT ARE UNCONSTITUTIONAL AND LIABLE TO
BE STRUCK DOWN
[ISSUE 2]
WHETHER THE POWERS CONFERRED UNPON THE CENTRAL
-----------------------------------------------------------------------------------------------------------------------------------------------------------
GOVERNMENT UNDER SECTION 87 OF THE ACT ARE ARBITRARY AND THE

SECTION SHOULD BE STRUCK DOWN
[ISSUE 3]
WHETHER THE DATA PROTECTION AUTHORITY HAS BEEN LAWFULLY
ESTABLISHED UNDER THE ACT? IF, NOT, CAN THE ACTIONS OF THE DATA
PROTECTION AUTHORITY STILL BE HELD VALID.
[ISSUE 4]
WHETHER FREINDSBOOK CAN BE HELD LIABLE UNDER LAW FOR BREACH OF
THE INTERMEDIARY RULES
[ISSUE 1]- Whether the provisions of the act are unconstitutional and liable to
be struck down?
It is humbly submitted before this Hon'ble Court that Sections 12, 13, 14 and 35 of
the Data Protection Act, 2021 (Hereinafter, Act) violate article 14, 19 and 21 of the
Constitution and should be struck down as Firstly, the impugned provisions violate the
Right to Privacy under Article 19 and 21 of the Constitution of India as they fail to
meet the four-pronged test of proportionality. [1.1], The provisions lack the safeguard
of legitimate purpose and necessity [1.1.1], That the impugned provisions are
disproportionate and do not pass the muster of test of Proportionality [1.1.2], That
there is lack of adequate procedural safeguards in the form of Independent
Parliamentary or Judicial oversight [1.1.3]. Secondly, the challenged provisions violate
Article 14 of the Constitution by giving the administrative authority extensive,
unguided discretion. [1.2]
[ISSUE 2]- Whether the powers conferred upon the central government under
section 87 of the act are arbitrary and the section should be struck down?
It is respectfully contended before the honorable court that section 87 of the Act is
obviously arbitrary in character and hence subject to being struck down as Firstly,
because it provides the Government with unguided discretionary powers [2.1].
Unguided discretionary powers is granted to the Government as a broad swath of
power is granted to the government [2.1.1], No procedural safeguards are provided
under the impugned section [2.1.2]. Lastly, the clause makes no provision for the
Data Protection Authority's functional independence (Hereinafter, DPA). [2.2] For the
arbitrariness and absolute discretion that may authorize denial of equality before the
law, which is also antithetical to the rule of law that is the bedrock of our constitution,
this clause must be repealed.
[ISSUE 3] - Whether the DPA has been lawfully established under the act? if
not, can the actions of the DPA still be held valid.
It is argued respectfully before this Hon'ble Court that the DPA was constituted
improperly pursuant to the Act because, firstly, the DPA lacks necessary
independence. [3.1] Secondly, even if the DPA is constituted properly, its acts are
illegal because they are ultra-virus to the Act [3.2], The actions of the DPA are ultra-
virus the Act as the actions of the DPA are beyond the subject matter over matter
[3.2.1], The powers were exercised for an improper purpose [3.2.2].
[ISSUE 4]- Whether Friendsbook can be held liable under law for breach of
intermediary rules.
It is humbly submitted to this Hon'ble Court that Friendsbook shall not be held
liable under law for violating intermediary rules because, firstly, Friendsbook, as a
“significant social media intermediary,” complies with IT Guidelines regarding due
diligence [4.1] and, Secondly, Friendsbook qualifies for the exception provision of safe
harbour under Section 79(1) of the IT Act [4.2].
[ISSUE 1]- WHETHER THE PROVISIONS OF THE ACT ARE UNCONSTITUTIONAL
AND LIABLE TO BE STRUCK DOWN
-----------------------------------------------------------------------------------------------------------------------------------------------------------
1. It is humbly submitted before this Hon'ble Court that Sections 12, 13, 14 and 35
of the Data Protection Act, 20211 (Hereinafter, Act) violate article 14, 19 and 21 of the
Constitution of India (Hereinafter referred to as “Constitution”)2 and should be struck
down as Firstly, the impugned provisions violate the Right to Privacy under Article 19
and 213 of the Constitution of India as they fail to meet the four-pronged test of
proportionality. [1.1]. Secondly, the impugned provisions violate article 144 of the
Constitution as they vest broad, unguided discretionary powers in the administrative
authority. [1.2]
[1.1] The impugned provisions violate the Right to Privacy under Article 19
and 215 of the Constitution of India as they fail to meet the test of
proportionality
2. It is humbly contended before this Hon'ble Court that clause 12, 13, 14 and 35
of the Act,6 violate the Right to Privacy as envisaged under Article 21 of the
Constitution as they are not reasonable restrictions. The impugned provisions are not
reasonable restrictions to the right to Privacy as they fail to meet the muster of
proportionality laid down by this Hon'ble Court in K.S. Puttuswamy v. Union of India7
as firstly, the provisions lack the safeguard of legitimate purpose and necessity
[1.1.1] Secondly, that the impugned provisions are disproportionate. [1.1.2] lastly,
there is a lack of adequate procedural safeguards in the form of Judicial or
Parliamentary oversight. [1.1.3].
[1.1.1] The provisions lack the safeguard of legitimate purpose and necessity
3. It is humbly submitted before this Hon'ble Court that it is quintessential that an
action warranting the reasonable restriction of the Fundamental Right to Privacy must
be necessary to achieve a legitimate state aim.8 The principle of necessity was also
recognised by the Justice Srikrishna Committee,9 “that while processing of personal
data “State should not collect personal data more than what is necessary for a
legitimate purpose”.
4. Sections 12, 13 and 14 of the Act,10 allows the government to process personal
data without consent when such “processing is necessary”. It fails to add the
additional safeguards of a Legitimate purpose.11
5. Section 1312 of the Act allows the processing of personal data without consent
when it “can reasonably be expected” Section 1413 further allows the same when it is
“practicable” to do so. Under Section 35 of the Act,14 the Central Government can
exempt any agency of the government from the provisions of the Act, if it is,
“necessary or expedient”. The meaning of the term “expedient” is not res integra.15 It
has been defined as something that is “suitable to the end in view”16 or that is
“practical, efficient or advantageous”17 or a device “characterized by mere utility rather
than principle, conduce to special advantage rather than to what is universally right.”18
It is pertinent to note that the burden for determining an exemption as expedient is
much lower than determining it as necessary.19 The Government can therefore exempt
any of its agency if it is an efficient and not a necessary means for carrying out
activities. This can even lead to mass state surveillance.
6. Therefore, it is contended that the impugned provisions do not pass the test of
legitimate purpose and necessity as firstly, they do not strictly lay down a rule of
legitimate purpose and secondly, they include terms like “expedient” and “practicable”
which do not pass the high threshold of the standard of necessity.
[1.1.2] That the impugned provisions are disproportionate and do not pass the
muster of Proportionality
7. It is humbly submitted before this Hon'ble Court that for a restriction on the
fundamental right to privacy to be reasonable must inter-alia, be the least intrusive
measure, proportional to the restriction and the privacy of an individual.20 The
proportionality principle requires balancing of the object sough to be achieved by the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
restriction with the harm suffered by the individual.21

8. Firstly, Sections 12, 13, 14 of the Act22 do not specifically lay down the
principle/test of Proportionality.
9. Secondly, Sections 35 of the Act23 , only applies the test of proportionality to the
procedure to be followed and not the substantive standards for the government's
invocation of exemption. The government does not need to establish that the
exemption from the entire Data Protection Bill is necessary for, or proportionate to
achieving its interest of national security or public order.
10. It is therefore, humbly submitted before this hon'ble Court that without the
high threshold of Proportionality laid down under the impugned provisions, the use of
pervasive surveillance technologies by the Government and employers could amount
to disproportionate encroachment on the fundamental right to privacy guaranteed
under Articles 14, 19 and 21 of the Constitution.24
[1.1.3] That there is lack of adequate procedural safeguards in the form of
Independent Parliamentary or Judicial oversight.
11. It is humbly submitted before this Hon'ble Court that it is quintessential that
any law warranting a reasonable restriction of the right to privacy must have adequate
procedural safeguards in place.25
12. Under Section 35 of the Act26 , the Central Government can exempt its own
departments from application of the Act in perpetuity, without any kind of oversight.
The unquestioned discretion conferred upon the Executive and the concentration of
powers entirely in the hands of the Executive, without any safeguard in place, is ex-
facie arbitrary and unreasonable. The Srikrishna Committee specifically recommended
“a law should provide for both parliamentary oversight as well as judicial approval of
all requests for non-consensual access to personal data” as it is essential “for ex ante
access control” and “ex post accountability”.27
13. In Para 86 of the Puttuswamy Judgement Justice Nariman has specifically noted
that “the ultimate analysis” of a measure's proportionality “must be left to the training
and expertise of the judicial mind.”28
14. It is pertinent to note that this Hon'ble Court in Puttaswamy29 , despite noting
that what is in the interest of national security may be a question of policy, struck
down Section 33(2) of the Aadhaar Act30 on the ground that it did not provide for any
independent (judicial) oversight and was therefore, unreasonable, disproportionate,
and unconstitutional.
15. Similar provisions of exemptions exist in other jurisdictions however, they
provide for independent oversight, such as, in South Africa, there is parliamentary as
well as civil oversight.31 Further, judicial approval is required for interception of
communication activities.32 In Germany, a Parliamentary Control Panel scrutinizes
intelligence activities.33 In UK, interception warrants require approval by the Judicial
Commissioner to ensure that the test of proportionality was met at the time of
issuance of the warrant.34
16. Therefore, it is humbly submitted before this Hon'ble Court that the “procedural
safeguards” limb of the broader proportionality enquiry - require Independent
Judicial/legislative oversight of the impugned provisions.
[1.2] The impugned provisions vest broad, unguided discretionary powers in
the administrative authority
17. It is humbly submitted before this Hon'ble Court that any
exemption/exceptions under the law must be narrowly tailored.35 Any restriction on a
right must be narrowly tailored for it to be reasonable.36 Discretionary power given to
government authorities are valid only if guided through sufficient procedural
safeguards, guidelines and standards. Vesting an uncontrolled power in an
-----------------------------------------------------------------------------------------------------------------------------------------------------------
administrative authority falls outside the constitutional framework.37

18. It is humbly submitted that, Firstly, Sections 12,13,14 and 35 are also
exceptions under the Act38 that must be narrowly tailored. However, in Section 1239
personal data may be processed without consent when for performance of any function
of the state. The word “State” been defined in the exact words40 as is defined under
Article 12 of the Constitution.41 Article 12 has been defined broadly to ensure the
constitutional protection of Fundamental rights.42 However, this definition when used
to curtail the fundamental right to privacy fails to pass the muster of being a
reasonable restriction because of its wide scope. Section 12, further provides to
process personal data without consent, “for performance of any function authorized by
law”, and “issuance of any certification, license or permit”, which allows for unguided
discretion.43 Even the SriKrishna Committee44 points out that “functioning of various
departments of the government may be indirectly or remotely connected to the
promotion of public welfare and this ground should not be used for justifying
processing of personal data for all such functions.” It therefore, recommended that
this exception should be restricted to certain entities of the State and certain functions
to avoid vagueness45 in the law.
19. Secondly, Cl 35 of the Act, empowers the Central Government to exempt its
agencies from all provisions of the Act, in perpetuity. This is too broad of an
exemption. It is pertinent to note that even in UK the national security exemption
does not extend to the whole The Data Protection Act, 2018.46 Further, Section 35 of
the Act47 provides for exemption on wide grounds including “sovereignty and integrity
of India, the security of the State, friendly relations with foreign states or public
order.” These grounds are not anywhere defined under the Act, are extremely open
ended and subject to subjective interpretations giving vide unguided discretionary
power to the Central government to restrict the right to privacy of individuals.
20. It is pertinent to note that National interests may override individual privacy,
but the threshold should be high, as Justice Srikrishna Committee noted, “to ensure
that the pillars of the data protection framework are not shaken by a vague and
nebulous national security exception”.48
21. Therefore, it is humbly submitted before this Hon'ble Court that the impugned
provisions fail to pass the muster of being reasonable restrictions as they are not
narrowly tailored and vest broad, unguided discretionary powers in the administrative
authority.
ISSUE 2. WHETHER THE POWERS CONFERRED UPON THE CENTRAL
GOVERNMENT UNDER SECTION 87 OF THE ACT ARE ARBITRARY AND THE
SECTION SHOULD BE STRUCK DOWN?
22. It is humbly submitted before the court that section 87 of the Act is manifestly
arbitrary in nature and therefore is liable to be struck down as Firstly, as it vests
unguided discretionary powers in the hands of the Government [2.1] 49 and Secondly,
the section leaves no scope for the functional Independence of the Data Protection
Authority (Hereinafter, DPA). [2.2] For the Arbitrary and Absolute discretion which
may permit denial of equality before law which further is the antithesis of rule of law
which is the cornerstone of our constitution, thus this section needs to be struck
down50
[2.1] Section 86 vests unguided discretionary powers in the hands of the
Government
23. It is humbly submitted before this Hon'ble Court that section 87 of the Act
vests unguided discretionary powers in the hands of the Government as Firstly, A
broad swath of power is granted to the government, [2.1.1] Lastly, there are no
procedural safeguards provided in the Section. [2.1.2]
[2.1.1] A broad swath of power is granted to the government
-----------------------------------------------------------------------------------------------------------------------------------------------------------
24. It is humbly contended before this Hon'ble Court that Section 87 of the Act51 is
in the nature of arbitrary power granted to the government.”52 It was pointed out in
the case of Supreme Court Advocates-on-Record - Association v. Union of India “that
conferring uncharted powers in several authorities under legislation with the head of
state would be completely wrong and capricious.”53Vesting of an absolute and
uncontrolled power in an authority falls outside the Constitution altogether”54. Section
87 of the Act allows the government to give any direction at any time to the DPA
based on grounds including public order or sovereignty etc55 . This will undermine the
foundation of a democratic society as discretionary power is vested in the government
without any guidance, no established procedure has herein been provided in the act as
well as the parameters of restriction in the act might be interpreted in the
government's favour, thus leading to misuse of power.
25. Furthermore, it is advanced before the Hon'ble Court that “a restriction in order
to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or
restrict only what is absolutely necessary”56. Section 87 provides for directions on wide
grounds including “sovereignty and integrity of India, the security of the State,
friendly relations with foreign states or public order.” These grounds are not anywhere
defined under the Act, are extremely open ended, wide and subject to subjective
interpretations of the Government. Thus, it gives vide unguided discretionary power to
the Central government to restrict the right to privacy of individuals.
26. It is humbly submitted before this Hon'ble Court that in the aforementioned
situation, Tanvi expressed her own viewpoint about the government in relation to the
current situation, which would have created awareness about prevalent circumstance
while pointing out serious shortcomings, which was deemed illegal despite the fact
that it did not result in a major uprising against the government. The said action taken
by the government was subjective in nature and was not reasonably justified.
27. It is pleaded before the court that “Once the Legislation has undermined and
taken away these rights of privacy, even if done primarily keeping in mind the
objective of achieving national security, the consequence is grave because such an
omission empowers the State to permeate other aspects of one's life as well finally
aggravating one's fundamental rights” 57 , in the present scenario arresting Tanvi for
the reason of her post, solely for the substance in her post can be said to infringe upon
her basic fundamental rights.
28. It is humbly submitted that in the case of Dwarka Prasad Laxmi58 v. State of
Uttar Pradesh59 a Legislation, which arbitrarily or excessively invades the right, cannot
be said to contain the quality of reasonableness, and unless it strikes a proper balance
between the freedom guaranteed under, Article 19(1)(g)60 and the social control
permitted by Clause (6) of, Article 19” thus it must be seen as lacking in rationality.
In the present situation the government's subsequent legal disenfranchisement of
these fundamental rights by ordering for an inquiry under the act falls short of
achieving a reasonable balance between freedom of expression and its
disenfranchisement.
29. It is humbly submitted before the court that one of the considerations to
consider when determining constitutionality is that “the restriction must have a direct
and proximate nexus, or a reasonable link, to the purpose sought to be attained.”61
But in the present instance Tanvi was arrested by the police solely on the premise of
an opinion-based post on her private social media account, which had only garnered
some public support and had not caused any significant upheaval in society, thus
there was no immediate reason or a reasonable connection for her arrest.
Consequently, the government's inquiry into the case as per the act was unnecessary
since the post did not interfere with public order or have any proximate relation to
hurting public order.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
30. It is humbly contended before this Hon'ble Court that statutory restrictions
based on public order can be utilised to repress public criticism62 . In the given
scenario Tanvi got arrested just by expressing her thoughts on the present covid crisis,
expressing her dissatisfaction with the government's failure to fulfil its responsibilities.
31. Therefore, it is humbly contended before this Hon'ble Court that section 87 of
the Act63 provides unguided discretionary powers in the hand of the Government and
is liable to be struck down.
[2.1.2] No procedural safeguards are provided under the impugned section
32. It is contended “that public interest or general good or social betterment have
no doubt priority over private or individual interest but it must not be a pretext to
justifying the arbitrary or illegal exercise of power, moreover the same has to be
exercised in a judicial manner of recording of reasons.”64 Moreover, it was held in
Himmat Lal v. Police Commissioner Ahmedabad65 that conferring such unrestricted
authority was arbitrary in an act when no procedural protections were put in place
against misuse of power provided by law.
33. It is Humbly submitted that in the impugned section no safeguard of judicial
oversight has been placed over the decision making by the government as a result,
the legislation is more vulnerable to abuse. The absence of procedural safeguards in
the given act66 provides the government with an easier way to evade jurisdiction of the
given law, moreover, the restriction provided under the act67 might be interpreted in
the government's favour, thus leading to arbitrary exercise of power.
[2.2] The impugned section leaves no scope for the functional Independence
of the DPA
34. It is humbly submitted before the court that the “European Court of Justice
interpreted the term ‘complete independence’ of DPAs to mean ‘a decision-making
power independent of any direct or indirect external influence on the supervisory
authority”68 .
35. In the present instance under Section 87 of the Act69 , the DPA is obligated to
comply any orders given by the Central Government in all circumstances, not simply
on policy matters. As a result, the DPA will be bound by the government's
decision/discretion. This will have a major impact on the DPA's ability to operate in a
manner that is independent of unwarranted governmental intervention.
36. The counsel humbly contends that a simple directive from of the centre is
enough to “licence the data protection authority to handle personal information and
empower authorities to undertake surveillance without any obvious protections.”.
37. The Srikrishna Committee70 explicitly advised that such an exception could
solely be granted by legislation. Nevertheless, such deviation might be interpreted as
a deliberate intent to infringe on residents’ privacy rights71.
38. Furthermore, as stated in Section 87 of the Act72 , the government has the
authority to issue directions to the DPA on public policy in the name of national
integrity and sovereignty. It must be noted that government agencies would be the
primary actors to be controlled under the proposed law, and so the State's authority in
such areas interferes with the authority's operational autonomy.
39. It is humbly contended that “The emphasis still lies on the absence of judicial
oversight.”73 The European Court of Human Rights held74 , In an area where abuse is
theoretically so simple in specific instances and might have such negative effects for
democratic society as a whole, it is in theory desirable to commit general supervision
to a court.
40. The counsel humbly contends that in light of the above, it is strongly advised
that such unrestricted power be discontinued. The aforementioned statute must be
controlled in order to handle the forces threatening India's privacy rights. “Even
-----------------------------------------------------------------------------------------------------------------------------------------------------------
though the state may cite problems of state security and surveillance to check
potential terrorist activities75.”
41. The counsel therefore, humbly pleads, that Section 87 of the Act76 must be
struck down as manifestly arbitrary in nature as it provides unguided discretionary
powers to the government and further leaves no scope for the functional independence
of the DPA.
[ISSUE 3] - WHETHER THE DPA HAS BEEN LAWFULLY ESTABLISHED UNDER
THE ACT? IF NOT, CAN THE ACTIONS OF THE DPA STILL BE HELD VALID
42. It is humbly submitted before this Hon'ble Court that the DPA has been
established unlawfully under the Act as, Firstly, The DPA is not sufficiently
independent. [3.1] Secondly, in arguendo even if the DPA has been lawfully
established the actions of the DPA are invalid as they are ultra-virus the Act. [3.2]
[3.1] The DPA is not sufficiently independent
43. It is humbly submitted before this Hon'ble Court that the rule of “Nemo debet
esse judex in propria causa” is a principle of Natural Justice. It is of a wide application
and means that a judicial or quasi-judicial authority must not himself be a party77 but
also must not be interested as a party.78 “Bias” means the predisposition to decide in
favour or against a particular party disregarding the merits in a case.79 It means
“partiality or preference”. “A person or authority required to act in a judicial or quasi-
judicial matter must act impartially”80. ‘Bias,’ as argued before the court, means a
deviation from the ideal of impartial justice that the law requires of individuals who
possess a quasi-judicial position. “The reason for this clearly is that having to
adjudicate, he must come to his adjudication with an independent mind, without any
inclination or bias towards one side or other.81 ”.
44. It is humbly contended before this Hon'ble Court that the DPA established
under the act82 does not come under the ambit of a lawful body, as it “is a partial
body.”83 .
45. It is submitted that the Act regulates both Data Processing by Government
agencies and private bodies. The DPA is empowered to appoint inquiry officers84 and
further, inquire and adjudicate complaints filed before it or on suo moto action. The
inquiry officer appointed further, has the powers of a civil court in matters of search
and seizure etc.85 Therefore, the committee is a quasi-judicial body with powers of
inquiry and adjudication. However, under section 42 of the Act86 , a selection
committee is established to appoint members of the DPA. The Selection Committee
consists of the Cabinet Secretary, the Attorney general of India, the Secretary to GOI
dealing with legal affairs, Secretary to GOI in the ministry dealing with Electronics and
Information technology, an independent expert, a director of any IIT and IIM each to
be nominated by the Central Government.87 Therefore, as the selection committee
consists of all bureaucrats, the constitution of the DPA rests entirely to the discretion
of the executive. Therefore, there is a possibility that in cases concerning complaints
against entities of Central government the DPA may be biased. As the DPA is being
appointed by members of the central government there is a predisposition to decide in
favour of agencies of the government disregarding the merits in a case, thus violating
principles of natural justice.
46. It is submitted before this Hon'ble court that Justice must not only be done but
also manifestly seen to be done.88 Therefore, “The principle of bias will come into play
whenever there is a real likelihood of bias.89 ” The test is not whether actual bias has
happened but whether the complainant could reasonably apprehend that a bias
attributable to a member of the tribunal might have operated against him in the final
decision.90 It is humbly contended that in the present instance as well it is not
contended that bias will take place in every decision reached by the DPA however,
according to DPA's current structure and makeup, the risk of bias can be realistically
-----------------------------------------------------------------------------------------------------------------------------------------------------------
anticipated. Furthermore, there is a legitimate basis for suspecting that the committee
was prejudiced91 , since they must have been interested in preserving its own standing
when compiling a list of selected candidates.
47. In the current circumstances, the commission and DPA are expected to be
prejudiced in favour of the government for personal motives, and hence their
judgement will not be just and equitable.
48. An independent DPA is one of the core principles of data protection. Article 52
of the GDPR92 contains specific provisions to ensure the independence of the members
of the supervisory authorities and mandates that all DPAs in the EU act with “complete
independence” when carrying out their duties. In European Commission v. Germany93 ,
the European Court of Justice interpreted the term ‘complete independence’ of DPAs to
mean ‘a decision-making power independent of any direct or indirect external
influence on the supervisory authority’.
49. Therefore, it is humbly submitted that the DPA established under the Act is
biased and unlawful as it is entirely under the thumb of the executive given major
involvement of the Central Government in the procedure of appointment and removal
of DPA and further the extensive power given to the Government under Section 8794 to
give mandatory directions to the DPA.
[3.2] In arguendo even if the DPA has been lawfully established the actions of
the DPA are invalid as they are ultra-virus the Act
50. It is humbly submitted before this Hon'ble Court that in arguendo even if the
DPA has been lawfully established the actions of the DPA are invalid as they are ultra-
virus the Act. Firstly, the actions of the DPA beyond the subject matter of the Act,
[3.2.1] and lastly, the actions were for an improper purpose. [3.2.2]
[3.2.1] The actions of the DPA are beyond the subject matter of the Act
51. It is Humbly submitted before this Hon'ble Court that an administrative action
becomes ultra-virus when the subject matter to which the act relates is beyond the
powers of the authority under the statute.95
52. It is humbly submitted before this Hon'ble Court that in the present instance
the DPA subsequent to the inquiry96 arrested the CEO of Friendsbook as the content
was posted on its platform.97 However, it is contended that under section 53 of the
Act98 the DPA does not have the power to arrest during an inquiry. The DPA has only
been given the powers of a Civil Court under the CPC, 190899 in matters of search and
seizure. Even at the stage of taking actions under section 54 and 57 the DPA is only
empowered to give directions and issue fines. 100
53. Therefore, it is humbly submitted before this Hon'ble Court that without any
explicit power laid down under the act the DPA was not empowered to arrest the CEO
of Friendsbook and that their action was ultra-virus the Act.
[3.2.2] The powers were exercised for an improper purpose.
54. It is Humbly submitted before this Hon'ble Court that it is essential for the
exercise of any statutory power that it must be exercised in good faith.101 That is for
the purposes for which the legislature delegated that power.102 The administrative
action would be invalidated if it exercised for any other purpose103 as it ceases to be
“Under the Statute” and the action becomes ultra-virus.104
55. It is humbly contended before this Hon'ble Court that the main objective of the
Act, is to regulate data processing undertaken by Data Fiduciaries105 and processors106
and to ensure that the right to privacy of Data principals107 is not infringed in the
process. However, in the present instance the Government directed the DPA under
section 87108 to conduct an inquiry in the incident of Tanvi's post and arrest on the
grounds of public order.109 Subsequent, to the inquiry the CEO of Friendsbook was
arrested by the DPA as the content was posted on its platform110 . It is humbly
-----------------------------------------------------------------------------------------------------------------------------------------------------------
contended that Friendsbook's CEO was not arrested as there was some infringement of
the Right to Privacy of Tanvi but as the content was posted on its platform liability for
which would be covered under the ambit of the Information Technology Act111 and
Rules112 and not under the Data Protection Act.113 This is not the purpose for which the
power to inquire and adjudicate was vested with the DPA under the Act.
56. Therefore, it is humbly submitted that the Action of the DPA should be struck
down as ultra-virus the Act as it was exercised for a different purpose other than the
one intended under the Act.
[ISSUE 4] : FRIENDSBOOK CAN BE HELD LIABLE UNDER LAW FOR BREACH OF
INTERMEDIARY RULES
It is humbly submitted before this Hon'ble Court that Friendsbook shall not be held
liable under law for the breach of intermediary rules as [4.1] Friendsbook, as a
“significant social media intermediary” is in compliance of with the due diligence as
per IT Guidelines and [4.2] Friendsbook is qualified to avail the exception clause of
safe harbour under Section 79(1) of the IT act.
[4.1] FRIENDSBOOK IS IN CVOMPLAINCE WITH DUE DELLIGENCE
OBLIGATIONS AS PER INTERMEDIARY RULES 114
57. It is humbly submitted before this Hon'ble Court that Friendsbook is a
significant social media intermediary as defined under Rule 2(1)(v) of the IT rules
2021. A social media intermediary is required to comply with the due diligence115
along with other obligations116 as provided under Part II of the said Rules.
It is humbly submitted that Friendsbook, as has been represented to the
Government of Atlantis, is in compliance with all the required obligations of the
Intermediary Rules, 2021117 . It is to be noted that any information which is contrary to
law and in contrast with the stated guidelines118 must be removed from the platform
within 36 hours of getting actual knowledge of such content.119
58. It is to be noted that the Hon'ble Supreme Court read down the meaning of
“actual knowledge” in the case of Shreya Singhal v. Union of India120 . It stated that an
intermediary is said to have “actual knowledge” when a “court order or notification
from an appropriate government authority” informs the intermediary about the
unlawful content present on its platform.
59. It is humbly mentioned that non-compliance with the guidelines would make
such intermediary liable for the forfeiture of the exemption clause which it enjoys
under law, if it fails to oblige the removal/disablement of the “offending content”121 as
specified in Rule 7122 . (¶60) It is to be noted that the Hon'ble Court cleared the
ambiguity of pre-screening by intermediaries by holding that such intermediaries had
no duty to screen illegal content. The Hon'ble court also reiterated that a “general
knowledge of ubiquitous’ infringement”123 would not oblige the intermediary to general
monitoring of content.
61. It is humbly contended that in the present factual matrix, it was found that
Friendsbook had voluntarily “removed/disabled” the post in question from its platform
within 36 hours of the petitioner's arrest124 although there was no actual knowledge125
from the authority's part126 . Moreover, it had also blacklisted the profile of the
petitioner127 . Thus, complying with the rules of the guidelines.128
[4.2] WHETHER FRIENDSBOOK CAN TAKE SAFE HARBOUR. UNDER S. 79
62. It is humbly submitted before this Hon'ble Court that Section 79129 provides for
the exemption clause of the intermediaries from the liability for third party actions on
its platform130 “subject to the provisions of sub-sections (2) and (3)”. The exemption
clause is subject to compliance of the intermediary with due diligence under the
guidelines 2021.
63. It is humbly argued before this Hon'ble Court that in the case of X v. Union of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
India131 , it was stated that the voluntary removal of the offending content by the
intermediary would “not amount to a violation of section 79(2)(a) or (b)132 of the IT
Act on the part of the intermediary, thereby cementing the exemption available to an
intermediary, provided the intermediary otherwise strictly follows the 2021 Rules.”
64. It is humbly submitted that Section 79(2)(b)133 provides a proviso to the
exemption clause134 stating that an intermediary exhausts its option of safe harbour in
case it initiates the transmission or selects the receiver of the transmission or selects
or modifies the transmitted information.
65. In furtherance, Friendsbook which is a “significant social media intermediary”
has fulfilled the necessary obligations and due diligence measures135 as required by
the Rules136 to avail the safeguard of safe harbour.
66. It is to be noted that the Hon'ble Supreme Court maintained that these
intermediaries have a large user base and it would be difficult for them to act on every
user request to take down every unlawful content. Therefore, it read down Section 79
(3)(b) of the Act whereby the intermediary shall act on court orders or notifies by
appropriate government agencies137 . The intermediary has no duty to entertain all the
user requests.138
67. It is further contended that the intermediary shall remove or disable access to
any “offending/unlawful content” hosted on its platform either voluntarily or after
receiving “actual knowledge” from the court or competent government authorities
within the stipulated time139 . On complying with all the requisite rules and subject to
the provisos under Section 79140 , the intermediary shall be able to avail exemption of
liability under safe harbour.
In this context, it is respectfully submitted before the Hon'ble Court that
Friendsbook removed the petitioner's post voluntarily after her arrest and also
“blacklisted” her profile141 . Further there was no formal notification from the
government as to amount to “actual knowledge” and the removal of the content by
Friendsbook was purely voluntary which shall not amount to exhausting the exception.
68. Therefore, it is humbly submitted before this Hon'ble Court that as the
intermediary in question had complied with the rules and guidelines, Friendsbook shall
not be held liable for third party content on its platform.
PRAYER
In the light of the facts presented, issues raised, arguments advanced, and
authorities cited, it is humbly prayed before this Hon'ble Court that it may be pleased
to:
A. Declare that, Sections 12, 13, 14 and 35 of the Data Protection Act, 2021
are violative of Art. 14, 19 and 21 of the Constitution of India, and
thereby, unconstitutional.
B. Declare that, Section 87 of the Data Protection Act, 2021 is arbitrary and
in violation of Article 14 of the Constitution of India, and thereby,
unconstitutional.
C. Hold that, the Data Protection Authority has been unlawfully established
under the Data Protection Act, 2021.
D. Hold that, the actions of the Data Protection Authority are invalid under
the Data Protection Act, 2021.
E. Hold that, Friendsbook is not liable under the law for breach of
Intermediary Rules, 2021.
AND/OR
Pass any other order, which the court may deem fit in the interest of
justice, equity and good conscience.
And for this act of kindness the Respondent shall forever be duty bound.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Date:**
Place : New Delhi.
Sd/-
Counsels on behalf of Petitioners
———
1 Data Protection Act, 2021, § 12, 13, 14, 35 No. 373, Acts of Parliament, 2021 (India).
2
INDIA CONST. art. 14, 19 and 21.
3
INDIA CONST. art. 19 and 21.
4 INDIA CONST. art. 14.
5
INDIA CONST. art. 19 and 21.
6
Data Protection Act, 2021, § 12, 13, 14, 35 No. 373, Acts of Parliament, 2021 (India).
7K.S Puttaswamy v. Union of India, (2017) 10 SCC 1. See also K.S. Puttaswamy v. Union of India, (2018) 12
Scale 1.
8
K.S Puttaswamy v. Union of India, (2017) 10 SCC 1. See also K.S. Puttaswamy v. Union of India, (2018) 12
Scale 1. Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.
9 Committee of Experts under the Chairmanship of Justice B.N. Srikrishna, A Free and Fair Digital Economy
Protecting Privacy, Empowering Indians, 1, 158 (2018)
http://www.meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf
10 Data Protection Act, 2021, § 12, 13, 14, No. 373, Acts of Parliament, 2021 (India).
11
K.S Puttaswamy v. Union of India, (2017) 10 SCC 1. See also K.S. Puttaswamy v. Union of India, (2018) 12
12 Data Protection Act, 2021, § 13, No. 373, Acts of Parliament, 2021 (India).
14
Data Protection Act, 2021, § 35 No. 373, Acts of Parliament, 2021 (India).
15
Bedavyasa Mohanty, INSIDE THE MACHINE : CONSTITUTIONALITY OF INDIA's SURVEILLANCE APPARATUS, 12
IJLT (2016) 206. [Hereinafter Bedavyasa Mohanty]
16 Whartons Concise Law Dictionary (2011).
17 Hotel Sea Gull v. State of W.B., (2002) 4 SCC 1, 13.
18 State of Gujarat v. Jamnadas G. Pabri, (1975) 1 SCC 138.
19 Bedavyasa Mohanty, Supra note 15.
20K.S Puttaswamy v. Union of India, (2017) 10 SCC 1. See also K.S. Puttaswamy v. Union of India, (2018) 12
21K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. See also K.S. Puttaswamy v. Union of India, (2018) 12
22 Data Protection Act, 2021, § 12, 13, 14, No. 373, Acts of Parliament, 2021 (India).
23 Data Protection Act, 2021, § 35 No. 373, Acts of Parliament, 2021 (India).
24 INDIA CONST. art. 14, 19 and 21.
25 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
27 Committee of Experts under the Chairmanship of Justice B.N. Srikrishna, A Free and Fair Digital Economy
-----------------------------------------------------------------------------------------------------------------------------------------------------------
28 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

29 K.S. Puttaswamy v. Union of India, (2018) 12 Scale 1.
30 Aadhar Act, 2016, § 33, No. 47, Acts of Parliament, 2016 (India)
31The Intelligence Services Oversight Act, 1994, see statement of objects and reasons - ?To provide for the
establishment of a Committee of Members of Parliament on Intelligence and to define its functions; and for the
appointment of Inspectors General or Intelligence and to define their functions; and to provide for matters
connected therewith. ? available at https://www.oldsite.issafrica.org/uploads/INTELSERVACT40OF1994.PDF (last
accessed on 19 April 2018).
32
The Regulations of Interception of Communications and Provision of Communication-related Information Act,
2000 available at https://www.justice.gov.za/legislation/acts/2002-070.pdf (last accessed on 19 April 2018)
33 Foreign Intelligence Gathering Laws : Germany, Library of Congress available at

https://www.loc.gov/law/help/intelligence-activities/germany.php (last accessed on 9 May 2018).
34 Investigatory Powers Act, 2016, S 138.
35 CCE v. Hari Chand, (2011) 1 SCC 236
36 Shreya Singhal v. Union of India, (2015) 5 SCC 1

37R.R. Verma v. Union of India, (1980) 3 SCC 402 : AIR 1980 SC 1461. See also Subhash Chandra v. State of
U.P., (1980) 2 SCC 471. See also Accountant General v. Doraiswamy, (1981) 4 SCC 93 : AIR 1981 SC 783.
38 Data Protection Act, 2021, § 12, 13, 14, 35 No. 373, Acts of Parliament, 2021 (India).
40 Data Protection Act, 2021, § 3 cl 39, No. 373, Acts of Parliament, 2021 (India).
41 INDIA CONST. art. 12.
42 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology [2002], (2002) 5 SCC 111.
44
Committee of Experts under the Chairmanship of Justice B.N. Srikrishna, A Free and Fair Digital Economy

46
Data Protection Act, 2018 c. 12
47
48 Renjith Mathew, ‘Personal Data Protection Bill, 2019 - Examined through the Prism of Fundamental Right to
privacy - A Critical Study’ SCC Online (22 May 2020) accessed 23 February 2021.
50
Siddharth R. Gupta and Kerti Sharma, 2021 SCC OnLine Blog Exp 76, (last accessed 4th March 2022, 6:30
p.m.), https://www.scconline.com/blog/post/2021/10/11/article-14-and-arbitrariness-vis-a-vis-legislative-
action/
51
Data Protection Act, 2021, § 87, No. 373, Acts of Parliament, 2021 (India).
52 Supreme Court Advocates-on-Record - Association v. Union of India, LNIND 2015 SC 611.
53 R.R. Verma v. Union of India, (1980) 3 SCC 402 : AIR 1980 SC 1461.
55 Moot Proposition ¶ 7
56
Shreya Singhal v. Union of India (UOI), (2015) 5 SCC 1 : AIR 2015 SC 1523.
57 West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 78.
58 Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, AIR 1954 SC 224.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
59 INDIA CONST. art. 19(1)(g).

60 INDIA CONST. art. 19(2).
61 Papanasam Labour Union v. Madura Coats Ltd., (1995) 1 SCC 501.

62 Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
64 State of Jharkhand v. Govind Singh, (2005) 10 SCC 437.
65
Himmat Lal v. Police Commissioner, Ahmedabad, (1973) 1 SCC 227 : AIR 1973 SC 87.
66
Moot Proposition ¶ 7
67 ibid
68 European Commission v. Federal Republic of Germany, (Case C-518/07) (2010) 1 ECR 1885
69
Data Protection Act, 2021, § 87 cl 2, No. 373, Acts of Parliament, 2021 (India).
70
Committee of Experts under the Chairmanship of Justice B.N. Srikrishna, A Free and Fair Digital Economy
Protecting Privacy, Empowering Indians, (page 1, page 153) (2018).
http://www.meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf.
73
Comm'n v. Austria, Case C-614/10, ECLI : EU : C : 2012 : 631.
74 Klass v. Federal Republic of Germany, (Series A, NO 28) (1979-80) 2 EHRR 214).
75 Klass v. Federal Republic of Germany, (Series A, NO 28) (1979-80) 2 EHRR 214).
76
77 Frome United Breweries v. Bath Justices, [1926] A.C. 586 (591, 593) H.L.
78 Ranger v. G.W. Ry., [1854] 5 H.L.C. 72 (89)
79
Secy v. Muraswamy, 1988 Supp SCC 651.
80 GN Nayak v. Goa University, (2002) 2 SCC 712 : AIR 2002 SC 790
81
Ct Local Gout Roard v. Arlidge, [1915] A.C. 120 (132). See also Franklin. Minister of Town and Country
Planning, (1947) 2 All ER 299.
82
Moot proposition ¶ 1
83 Supreme Court Advocates-on-Record - Association v. Union of India, LNIND 2015 SC 611
85
88
Lord Hewart in R. v. Sussex Justices, [1924] 1 K.B. 256 (259). See also Franklin v. Minister of Town Planning,
(1947) 2 All ER 289 (H.L.).
89 State of UP. Nooh, AIR 1958 SC 86 (91) 70.
90 Rattan v. Managing Committee, (1993) 4 SCC 10 (para. 11).
91
Supreme Court Advocates-on-Record - Association v. Union of India, LNIND 2015 SC 611.
92 EU General Data Protection Regulation (GDPR) : Regulation (EU) 2016/679 of the European Parliament and of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
the Council of 27 April 2016, 95/46/EC (General Data Protection Regulation), OJ 2016 L 119/1.
93 European Commission v. Federal Republic of Germany, (Case C-518/07) (2010) 1 ECR 1885
94
Data Protection Act, 2021, § 87, No. 373, Acts of Parliament, 2021 (India).
95Prescott v. Birmigham Corpn., (1954) 3 All ER 698 (C.A.). See also, Irani v. State of Madras, AIR 1961 SC
1731
97
99 The Civil Procedure Code, 1908.
100
Data Protection Act, 2021, § 54, 57, No. 373, Acts of Parliament, 2021 (India).
101State of Bombay v. Krishnan, AIR 1960 SC 1223. See also, Union of Journalists v. State of Bombay, AIR 1964
SC 1617
102Cf. Iron & Steel Co. v. Workmen, AIR 1958 SC 130 (137). See also, Chartered Bank v. Employees Union, AIR
1960 SC 919 (922).
103
A.G. for Canada v. Hallet, [1952] A.C. 427 (444)
104 Janardhan v. P.D.S.E., (1994) 6 SCC 506 (Para. 4)
106
109
111
Information technology Act, 2000, No. 21, Acts of Parliament, 2000 (India).
112
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
113 Data Protection Act, 2021, No. 373, Acts of Parliament, 2021 (India).
114 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. (Hereinafter
referred to as 2021 Rules.)
115
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3
116
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 4.
118 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
119 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3(d).
121 X v. Union of India, (2021) 280 DLT 57
122 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 7
123 My Space Inc. v. Super Cassettes Industries Ltd., (2017) 236 DLT 478
125 Shreya Singhal v. Union of India, (2015) 5 SCC 1.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
126 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3(d)
128 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3(d)
129 Information technology Act, 2000, § 79, No. 21, Acts of Parliament, 2000 (India).
130 Avnish Bajaj v. State (NCT of Delhi), (2005) 116 DLT 427.
131 X v. Union of India, (2021) 280 DLT 57.
132 Information Technology Act, 2000, § 79 cl 2, No. 21, Acts of Parliament, 2000 (India).
133
Information Technology Act, 2000, § 79 cl 2 (b), No. 21, Acts of Parliament, 2000 (India).
134 Information Technology Act, 2000, § 79 cl 1, No. 21, Acts of Parliament, 2000 (India).
135 Shreya Singhal v. Union of India, (2015) 5 SCC 1.
136
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3
137 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3.
138 Sasikala Pushpa v. Facebook India, 2020 SCC OnLine Del 618.
139 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 7.
140 Information technology Act, 2000, § 79 cl 2 &3, No. 21, Acts of Parliament, 2000 (India),
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

Best Team Memorial Petitioner Symbiosislawschool Moot 06 2 Muzzamil212393 Hnluacin 20221009 194927 1 21

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Best Team Memorial Petitioner Symbiosislawschool Moot 06 2 Muzzamil212393 Hnluacin 20221009 194927 1 21

Uploaded by

Copyright:

Available Formats

SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.

Page 1 Sunday, October 09, 2022

6th Symbiosis Law School Hyderabad National Moot, 2022

In the Hon'ble Supreme Court of Atlantis

[2.2] The impugned section leaves no scope for the functional 24

10. Janardhan v. P.D.S.E., (1994) 6 SCC 506 24

10. Foreign Intelligence Gathering Laws : Germany, Library of 14

5. Ct Local Gout Roard v. Arlidge, [1915] A.C. 120 (132) 22

GOVERNMENT UNDER SECTION 87 OF THE ACT ARE ARBITRARY AND THE

restriction with the harm suffered by the individual.21

administrative authority falls outside the constitutional framework.37

28 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

33 Foreign Intelligence Gathering Laws : Germany, Library of Congress available at

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

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

59 INDIA CONST. art. 19(1)(g).

61 Papanasam Labour Union v. Madura Coats Ltd., (1995) 1 SCC 501.

You might also like