MEMORANDUM FOR APPELLANT TEAM CODE:T18

DNLU INTRA MOOT COURT COMPETETION,2020

BEFORE THE HON’BLE

HIGH COURT OF INDRAPRASTH

UNDER ARTICLE 226 OF INDIANA CONSTITUTION

WRIT PETITION NO /2021
CASE CONCERNING

Mr. RAMESH …………………………………………………………………………………. APPELLANT

V.

WHATSUP LLC …………………………………………………………………………RESPONDENT

UPON SUBMISSION TO THE HON’BLE

HIGH COURT OF INDRAPRASTHA

MEMORIAL ON BEHALF OF THE APPELLANT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS 3
INDEX OF AUTHORITIES 4
STATEMENT OF JURISDICTION 6
STATEMENT OF FACT 7
QUESTION PRESENTED 9
SUMMARY OF ARGUMENTS 10
ARGUMENTS ADVANCED…….
…………………………………………………………………………………………….12
PRAYER …………………………………………………………………………………………………………………………………………………………………….24

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LIST OF ABBREVIATION

AIR ALL INDIA REPORTER

ART. ARTICLE
ANR. ANOTHER
ACC ACCORDING
APC ALBERIAN PENAL CODE
J. JUSTICE
Ors OTHERS
SC SUPREME COURT
SCC SUPREME COURT CASES
SCR SUPREME COURT REPORTER
Vol. VOLUME
V. VERSUS

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MEMORANDUM FOR APPELLANT TEAM CODE:T18
LIST OF AUTHORITIES

CASES
1. AIR 1950 SC 169: 1950 SCR 453
2. Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666, at 674
3. Durga Shankar v. Raghu Raj AIR 1954 SC 520: (1955) 1 SCR 267.
4. Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214, 244: AIR 2004 SC 1815.
5. C.C.E. v. Standard Motor Products, AIR 1989 SC 1298: (1989) 2 SCC 303.
6. Delhi Judicial Service Assn. v. State of Gujarat, AIR 1991 SC 2176 : (1991) 4 SCC 406.
7. Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314.
8. Kathi Ranning Rawat v. The State of Saurashtra, AIR 1952 SC 123,
9. Achyut Adhicary v. West Bengal, AIR 1963 SC 1039.
10. Haryana State Industrial Corp. v. Cork Mfg. Co., (2007) 8 SCC 359
11. Dubaria v. Har Prasad, (2009) 9 SCC 346.
12. Sumati Dayal v. CIT, (1995) 214 ITR 801.
13. Kunhayammed v. State of Kerala, AIR 2000 SC 2587, 2595 : (2000) 6 SCC 359
14. Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323, at Page 347.
15. Dale & Carrington Invt. Ltd. v. P.K. Prathapan, (2005) 1 SCC 212
16. Poonam v. Sumit Tanwar AIR (2010) SC 1384, (2010) 4 SCC 460, JT (3) SC 259
17. Janata Dal v. H.S. Chowdhary and Ors. (1992) 4 SCC
18. Sachidanand Pandey v. State of West Bengal (1987) 2 SCC 295 p 331; AIR 1987 SC 1109, (1987), (1987) 2 SCR
223
19. (2003) 7 SCC 121
20. Guruvayur Devaswom Managing Committee v. C.K. Rajan & Ors AIR 2004 SC 561
21. BALCO Employees Union (Regd.) v. Union of India & Ors., AIR 2002 SC 350
22. Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors., AIR 1987 SC 579.
23. AIR 1993 SC 892
24. KushumLata v. Union Of India And Ors MANU/SC/8225/2006
25. 1992 Supp. (1) SCC 323
26. (1989) 4 SCC 187
27. ( 2002) 4 SCC 578
28. National Council For Civil Liberties v. Union Of India & Ors MANU/SC/2993/2007
29. Javed v. State of Haryana,(2003) 8 SCC 369, 391
30. Quareshi v. State of Bihar , AIR 1958 MP 115 (paras. 15-18)
31. State of W.B. v. Ashutosh Lahiri, AIR 1995
32. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1952 SC 853.
33. A.S. Narayana Deekshitulu v. State of A.P., AIR 1932 PC 25.
34. Francis Coralie v. Union Territory of Delhi, 1981 AIR 746, 1981 SCR (2) 516.
35. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
36. Gian Kaur v State of Punjab, 1996 AIR 946, 1996 SCC (2) 648.
37. Common Cause v Union of India, 2018 SCC 208
38. R.C. Copper v Union of India, AIR 1970 SC 564.
39. P. Rathinam v Union of India, (1994) 3 SCC 394.
40. State of Maharashtra v Maruty Sripati Dubal, AIR 1997 SC 411.
41. Indian Young Lawyers Association and Ors. Vs. The state of Kerala and Ors., 2018 SCC OnLine SC 1690
42. K. S. Puttuswamy and Anr. V Union of India and Ors., AIR 2017 SC 4161.
43. M. Nagaraj and Others v Union of India and Others, (2006) 8 SCC 212.
44. Hasan Ali v. Mansoor Ali, AIR 1984 PC 66.
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45. A.S. Narayana v. State of Andhra Pradesh, AIR 1996 SC 1765.
46. R. Rajagopal v. State of T.N., (1994) 6 SCC 632.
47. Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388
48. Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, AIR 1952 SC 853.
49. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1952 SC 853.
50. A.S. Narayana Deekshitulu v. State of A.P., AIR 1932 PC 25.
51. S.P. Mittal v. Union of India, AIR 1983 SC 1.
52. Commissioner of H R E v L T Swamiar, [1954] A.I.R. S.C. 28.
53. DRR Varu v State of Andhra Pradesh, AIR 1970 SC 181.
54. Rabindra Kumar Pal v. Republic of India, AIR 1970 SC 1981.
55. U P v Deoman Upadhyaya, [1961] 1 SCR 14.

LEGISLATION
1. CONSTITUION OF INDIA,1950
2. INDIAN PENAL CODE,1860
3. THE MENTAL HEALTH CARE ACT,2017

BOOKS

1. SALLEKHANA IS NOT SUICIDE BY T, K, TUKOL

2. EMPEROR CHNADRAGUPTA MAURYA BY ADITYA KAY
3. INTRODUCTION OF CONSTITUTION BY D.D. BASU
4. INDIAN CONSTITUTIONAL LAW BY M.P. JAIN
5. RATNAKARANDA SRIVAKACARA BY SAMANTABHADRA
6. PURUMRTHA-SIDDHYUPBYA BY AMRTACANDRA
7. REALITY BY S.P. JAIN
8. ENCYCLOPAEDIA OF SOCIAL SCIENCE

WEBSITE
1. SCC ONLINE
2. MANUPATRA ONLINE RESOURCES
3. LEXIS NEXIS LEGAL
4. OXFORD DICTIONARY

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MEMORANDUM FOR APPELLANT TEAM CODE:T18
STATEMENT OF JURISDICTION

The counsel on behalf of the Appellants have endorsed their pleadings before the Hon’ble High Court of
Indraprasth under Article 226 of the Constitution of Indraprasth.

226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in
relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or
person may also be exercised by any High Court exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat
of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a petition under clause (1), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim
order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of
such order and furnishes a copy of such application to the party in whose favour such order has been made or
the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the
date on which it is received or from the date on which the copy of such application is so furnished, whichever is
later, or where the High Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall,
on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the
Supreme court by clause (2) of Article 32.

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STATEMENT OF FACT

BACKGROUND
The Republic of Alberia is sovereign, socialist, secular and democratic in nature. The population of Alberia
comprises of various religious communities, namely Indu, Ruslim, Nikh, Rhistian, Few, Kain and some atheists.
Alberia is a quasi-federal state, having decentralization of power between the union and provinces, though in
certain affairs, the union is given prominence over provinces. Kain religion, though being only 5 % of Alberian
population, was prominent in Alberia for being pious, devotional and dedicated towards their religious tenets.
Nithara, a religious practice of fasting unto death, is prevalent in Nilamber sect of Kains. Nithara is practised,
when all the purpose of life has been accomplished or when the body is unable to serve any other purpose, with
the aim of achieving salvation. Person opting for Nithara is supported by the entire Nilambar community,
provided with all the necessities required in the entire process of performing Nithara. The house of the person,
opting for Nithara, becomes a pilgrimage for entire community & people of the of community look at the
person with utmost respect and reverence.

PIL FILED BY NIRANJAN KUMAR BEFORE HIGH COURT OF SAJASTHAN

Mr. Niranjan Kumar, public spirited lawyer, filed a writ petition in High Court of Sajasthan, in order to seek
directions to be given to Union of Alberia and State of Sajasthan, so as to declare practice of Nithara, a criminal
act, under Section 309 of APC that makes attempt to suicide, a criminal act. Petitioner also sought directions to
make abetment of Nithara, a criminal act, punishable under Section 306 of APC. . In response to the above filed
petition, the Stae of Sajasthan & UOA questioned the locus standi of the petitioner and argued that, practice of
Nithara is protected under under A. 25(1), 26(b), 29(1) of COA. Also, Nilamber Parishad, an intervener allowed
by High Court claimed Nithara to be covered under Personal laws of Kains and hence, cannot be contemplated
under expression “laws in force” of Article 13(1) of COA. Following the arguments presented above, the
petitioner claimed that locus standi doctrine is not important to file a PIL as any person espousing for any claim
having interest and benefit for public at large can file it. He further added that Nithara is violative of A. 21 of
COA and hence, practice can’t be protected under any pretext.

DECISION BY DIVISION BENCH OF HIGH COURT OF SAJASTHAN

The High court unanimously agreed with the petitioner and directed SOS & UOA to criminalise the practice of
Nithara and its abetment under S.309 and S.306 of APC respectively.

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EFFECT OF DECISION OF HIGH COURT

People of Kain religion were aggrieved by the judgement of the High court which led to resentment and protest
among the community, demanding immediate government interference. As a result, State of Sajasthan and
Nilamber Parishad filed special leave petitions before Supreme Court of Alberia. However, even before
hearings could start at SC, UOA enacted a legislation, “The Kain Religious Freedom (protection of the practice
of Nithara) Act,2020” aiming to undo the effect of High Court’s judgement. Section 2 of the Act stated that,
“Notwithstanding any judgment, order or direction of any court, the practice of Nithara among the people
professing the Kain religion shall be valid and the practice of Nithara shall not be understood to mean an
attempt to commit suicide under any law prohibiting or making the attempt to commit suicide, an offence.”

WRIT PETITION FILED BY NIRANJAN KUMAR

Owing to legislative interference by UOA, Mr. Niranjan Kumar filed a petition before SC of Alberia under A.32
of COA challenging the legislative Act passed by UOA, stating that the Act is violative of A.21 of COA and
that, the law is bill of attainder, hence void as it is unconstitutional.

CLUBBING OF PETITIONS BY HON’BLE SUPREME COURT OF ALBERIA

Both the SLPs under A.136 of COA and the writ petition under A.32 have been admitted by the SC of Alberia
and the court clubbed these petitions as these issues were interconnected. After initial hearing by two judge
bench of the SC, case was referred to CJ of SC for constituting a constitution bench under A.145 (3) of COA as
these issues involved substantial question of law with respect to interpretation of Constitution of Alberia and the
matters are now pending in front of 5- judge Constitution bench of the Hon’ble Supreme Court of Alberia.

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ISSUES RAISED

ISSUE 1
WHETHER THE PETITION IS MAINTAINABLE BEFORE THE HIGH COURT OF
INDRAPRASTH?

ISSUE 2
WHETHER THE ARGUMENT OF 'BREACH OF PRIVACY' JUSTIFIABLE IN THE ABSENCE OF
LAW DEFINING THE LIMIT OF PRIVACY?

ISSUE 3
WHETHER THE APPLICATION OF PRIVACY POLICY CONSTITUTES A VIOLATION OF
PRINCIPLES OF ARTICLE 14?

ISSUE 4

WHETHER PRESENCE OF DATA PROTECTION LAW COULD HAVE AVOIDED THE

APPLICATION OF NEW PRIVACY POLICY?

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SUMMARY OF ARGUMENTS

1. WHETHER THE PETITION IS MAINTAINABLE BEFORE THE HIGH COURT OF

INDRAPRASTH?
It is humbly submitted before the honorable court that the petition filed under Article 226 of the Constitution of
India is maintainable. The jurisdiction of High Court under Article 226 issue of writ, order and direction for that
matter, a writ can be issued to any person or authority, including private, bodies. Further, it can be issued for the
enforcement of fundamental rights or for any other purpose, the word any other purposes should not be
construed in narrow sense and it should not limit to the statutory authorities and the state instrumentalities. The
High Court under Article 226 is not only to issue of writs, it is broader than that for a High Court can also issue
directions to enforce any of the fundamental rights.

2. WHETHER THE ARGUMENT OF 'BREACH OF PRIVACY' JUSTIFIABLE IN THE ABSENCE

OF LAW DEFINING THE LIMIT OF PRIVACY?
It is humbly submitted before the Hon’ble High Court that the argument ‘Breach of Privacy’ is justifiable in the
absence of law defining the limit of privacy, as in the case of K. S. Puttaswamy and Anr. V. Union of India and
Ors., the nine-judge bench held unanimously ruled that privacy is a fundamental right, and that the right to
privacy is protected as an intrinsic part of the right to life and personal liberty, as a part of the freedoms
guaranteed by Part III of the Constitution. Court also held that ‘The right of privacy is a fundamental right. It is
a right which protects the inner sphere of the individual from interference from both State, and non-State actors
and allows the individuals to make autonomous life choices.’ Hence the argument of ‘Breach of Privacy’ is
justifiable in the absence of law defining the limit of privacy.

3. WHETHER THE APPLICATION OF PRIVACY POLICY CONSTITUTES A VIOLATION OF

PRINCIPLES OF ARTICLE 14?

It is most humbly and respectfully submitted before the Hon’ble High Court that WhatsUp new privacy policy
has a monopolizing tendency and is violative of tenets of article 14. Because it uses the its dominance position
in market to manipulate the users, which is also violative of Sec. 4 of The Competition Act, Whatsup using the
privacy of the users without the consent, which is unfair and arbitrary which is violative of Art. 14 of the
Constitution.

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4. WHETHER PRESENCE OF DATA PROTECTION LAW COULD HAVE AVOIDED THE

APPLICATION OF NEW PRIVACY POLICY?

It is most humbly and respectfully submitted before the Hon’ble High Court that the presence of the Data
Protection Law could have avoided the application of new privacy law seeing that the European Union’s
General Data Protection Regulation which is strong regulation in the protection and regulation of data, because
of which the Whatsup new privacy policy is not implemented in the European Countries. So, the presence of the
data protection law could avoid the application of new privacy policy.

ARGUMENTS ADVANCED

1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE IN THE COURT OF LAW IN

THE PRESENT CASE?

It is humbly and most respectfully submitted before this Hon’ble Court that the present writ petition is
maintainable before the High Court of Indraprasth as Ramesh State of Indraprasth (hereinafter referred to as
Appellant) has filed the writ petition under Article 226 of The Constitution of Indiana.

The High Court under the writ jurisdiction is empower to issue the directions, orders or writs, including the writ
in the nature of mandamus, prohibition, quo warranto and certiorari, for the enforcement of fundamental rights
and for any other purpose. High Court exercise discretionary and equitable jurisdiction under the Art. 226.1

A reading of Article 226 makes it clear that it can be invoked not only for infringement of fundamental rights,
but also for any other purpose. Therefore, as stated above, the question that requires determination is whether
the private bodies performing public duties can be brought within the purview of judicial review. If a private
body is brought within the purview of Article 12, then it will be subject to constitutional limitations. As
happened in this case, lack of effective control has made the private bodies acquire more power similar to
public authorities. The public monopoly power is replaced by private monopoly power. Hence, it becomes

1
UP State Sugar Corporation Limited V Kamal Swaroop Tondon, (2008) 2 SCC 41.
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necessary that the private bodies should be made accountable to judiciary within the judicial review. If any
private body has a public duty imposed on it, Court has jurisdiction to entertain the writ petition.2

The Hon'ble Apex Court in M.C. Mehta v. Union of India, wherein, it was held as follows: “Before we part with
this topic, we may point out that this Court has throughout the last few years expanded the horizon of Article 12
primarily to inject respect for human rights and social conscience in our corporate structure. The purpose of
expansion has not been to destroy the raiso d'etre of creating corporations but to advance the human rights
jurisprudence. Prima facie we are not inclined to accept the apprehensions of learned counsel for Shriram as
well founded when he says that our including within the ambit of Article 12 and thus subjecting to the discipline
of Article 21, those private corporations whose activities have the potential of affecting the life and health of the
people, would deal a death blow to the policy of encouraging and permitting private entrepreneurial activity.
Whenever a new advance is made in the field of human rights, apprehension is always expressed by the status
quoists that it will create enormous difficulties in the way of smooth functioning of the system and affect its
stability.”3

In the case of Life Insurance Corporation of India v. Asha Goel, the Supreme Court held that Art. 226 of the
Constitution confers extraordinary jurisdiction on the High Court to issue high prerogative writs for
enforcement of the fundamental rights or for any other purpose. It is wide and expansive. The Constitution does
not place any fetter on exercise of the extraordinary jurisdiction. It is left to the discretion of the High Court.
Therefore, it cannot e laid down as a general proposition of law that in no case the High Court can entertain a
writ petition under Art. 226 of the Constitution to enforce a claim under a life insurance policy. It is neither
possible nor proper to enumerate exhaustively the circumstances in which such a claim can or cannot be enforce
by the filing a writ petition. The determination of the question depends on consideration of several factors like,
whether a writ petitioner is merely attempting to enforce his/her contractual rights or the case raises important
question of law and constitutional issues, the nature of the dispute raised; the nature of inquiry necessary for
determination of the dispute etc. The matter is to be considered in the facts and circumstances of each case.
While the jurisdiction of the High Court to entertain a writ petition under 226 of the constitution cannot be
denied altogether, courts must bear in mind the self-imposed restriction consistently followed by High Courts
all these years after the Constitutional power came into existence in not entertaining writ petition filed for

2
Jasmine Ebenezer Arthur v. HDFC ERGO General Insurance Company Limited and Others, AIR 2019 Mad 220.
3
M.C. Mehta v. Union of India, (1987) 1 SCC 395.
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enforcement of pure contractual rights and obligation which involve disputed questions of facts. 4 In this court
concluded that the writ petition to enforce a contractual right is maintainable.

In the case of Jasmine Ebenezer Arthur v. HDFC ERGO General Insurance Company Limited and Others 5
2019, the Madras High Court upheld the maintainability in the writ jurisdiction. The court held that If the action
of the State is related to contractual obligations or obligations arising out of the tort, the court may not
ordinarily examine it unless the action has some public law character attached to it. Broadly speaking, the court
will examine actions of State if they pertain to the public law domain and refrain from examining them if they
pertain to the private law field.

In the case of Dr. Sangamitra Acharya & Anr. vs State (Nct of Delhi) & Ors, it was held that the writ
jurisdiction of a High Court under Article 226 of the Constitution is, therefore, invoked not only for assertion of
the rights to life, liberty and a variety of fundamental rights against invasive State action but also against
invasive action by non-State actors.6

The historic fallout of the nine-judge Bench judgment, declaring privacy as intrinsic to life and liberty and an
inherent right protected by Part III of the Constitution, is that an ordinary man can now directly approach the
Supreme Court and the High Courts for violation of his fundamental right under the Constitution. By making
privacy an intrinsic part of life and liberty under Article 21, it is not just a citizen, but anyone, whether an Indian
national or not, can move the constitutional courts of the land under Articles 32 and 226, respectively, to get
justice.7

It is humbly submitted before the honorable court that in the instant case the writ petition filed under the article
226 of the Constitution is maintainable.

4
Life Insurance Corporation of India v. Asha Goel, (2001) 2 SCC 160.
5
Supra note 2.
6
Dr. Sangamitra Acharya and Anr. vs State (Nct of Delhi) & Ors, 2018.
7
K.S. Puttaswamy and Anr. V Union of India and Ors, (2017) 10 SCC 1,
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2. WHETHER THE ARGUMENT OF 'BREACH OF PRIVACY' JUSTIFIABLE IN THE ABSENCE
OF LAW DEFINING THE LIMIT OF PRIVACY?

It is humbly submitted before the Hon’ble Court that the nine-judge bench judgement of the apex court in the
case of K. S. Puttaswamy and Anr. V Union of India and Ors., 8 it was held that the right to privacy is the
fundamental right, and have the constitutional protection.

It is humbly submitted before the Hon’ble Court that Privacy enjoys a robust legal framework internationally.
Article 12 of the Universal Declaration of Human Rights, 1948 i.e., ‘No one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference or attack.’ 9 and Article 17 of the
International Covenant on Civil and Political Rights (ICCPR), 1966,10 i.e.,

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

The United Nations General Assembly Resolution on the right of privacy in the digital age, passed on
December 18, 2013 and the General Comment of the United Nations Human Rights Committee on the right of
privacy, family, home, correspondence, and protection of honour and reputation, under the International
Covenant of Civil and Political Rights (ICCPR), expressed in 1988, demands that working of State Surveillance
be subject to legality through clear and precise law, which law itself must look to safeguard the right to privacy.

It is humbly submitted before the Hon’ble court that In Justice K.S. Puttaswamy (Retd.) v. Union of India a
nine-Judge Constitution Bench of the Supreme Court unanimously concluded that the right to privacy is
protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the
freedoms guaranteed by Part-III of the Constitution‖. The separate opinions of several of the judges elaborated
on the different facets of privacy. The opinion of Dr. D.Y. Chandrachud, J., with which four other learned
judges concurred, focused inter alia on the elements of privacy arising in varying contexts from the other facets

8
Ibid.
9
Article 12 of the Universal Declaration of Human Rights, 1948
10
International Covenant on Civil and Political Rights (ICCPR), 1966.
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MEMORANDUM FOR APPELLANT TEAM CODE:T18
of freedom and dignity recognized and guaranteed by the fundamental rights contained in Part III of the
Constitution. Privacy was discussed in the context of ‘choice’ and it was explained:

“The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her
preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences
on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse
and a myriad other matter on which autonomy and self-determination require a choice to be made within the
privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it
the ability to choose a faith and the freedom to express or not express those choices to the world. These are
some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty.
The Constitution does not contain a separate article telling us that privacy has been declared to be a fundamental
right. Nor have we tagged the provisions of Part III with an alpha suffixed right of privacy: this is not an act of
judicial redrafting. Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty
and freedom which the Constitution has recognized. Privacy is the ultimate expression of the sanctity of the
individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for
the individual a zone of choice and self-determination.”11

It is submitted before the Hon’ble High Court that Dr. D. Y. Chandrachud, J., seeing the threat to privacy in the
information technology age stated:

“Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can
originate not only from the state but from non-state actors as well. We commend to the Union Government the
need to examine and put into place a robust regime for data protection. The creation of such a regime requires a
careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate
aims of the state would include for instance protecting national security, preventing and investigating crime,
encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare
benefits.”12

It is humbly submitted before the Hon’ble Court that, Among the nine primary types of privacy that were
elucidated, one concerned decisional privacy reflected by an ability to make This would include the right to
specify whom to include and whom to exclude from one's circle. In his concurring opinion, S.A. Bobde, J.
explained as under:

11
Supra note 7.
12
Supra note 7.
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“To exercise one's right to privacy is to choose and specify on two levels. It is to choose which of the various
activities that are taken in by the general residue of liberty available to her she would like to perform, and to
specify whom to include in one's circle when performing them. It is also autonomy in the negative, and takes in
the choice and specification of which activities not to perform and which persons to exclude from one's circle.
Exercising privacy is the signaling of one's intent to these specified others, whether they are one's co-
participants or simply one's audience, as well as to society at large, to claim and exercise the right. To check for
the existence of an actionable claim to privacy, all that needs to be considered is if such an intent to choose and
specify exists, whether directly in its manifestation in the rights bearer's actions, or otherwise.”13

It is humbly submitted before the Hon’ble court that Sanjay Kishan Kaul J., in his judgment in the case of K.S.
Puttaswamy and Anr. V Union of India and Ors. held that

“It was rightly expressed on behalf of the petitioners that the technology has made it possible to enter a citizen’s
house without knocking at his/her door and this is equally possible both by the State and non-State actors. It is
an individual’s choice as to who enters his house, how he lives and in what relationship. The privacy of the
home must protect the family, marriage, procreation and sexual orientation which are all important aspects of
dignity.”14

It is humbly submitted before the Hon’ble Court that in the case of K.S. Puttaswamy and Anr. V Union of India
and Ors.,15 it was held that if the individual permits someone to enter the house it does not mean that others can
enter the house. The only check and balance are that it should not harm the other individual or affect his or her
rights. This applies both to the physical form and to technology. In an era where there is wide, varied, social and
cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most
important rights to be protected both against State and non-State actors and be recognized as a fundamental
right. How it thereafter works out in its inter-play with other fundamental rights and when such restrictions
would become necessary would depend on the factual matrix of each case. That it may give rise to more
litigation can hardly be the reason not to recognize this important, natural, primordial right as a fundamental
right.

It is humbly submitted before the court that Life and personal liberty are inalienable rights. These are rights
which are inseparable from a dignified human existence. The dignity of the individual, equality between human
beings and the quest for liberty are the foundational pillars of the Indian Constitution.

13
Supra note 7.
14
Supra note 7.
15
Supra note 7.
16
MEMORANDUM FOR APPELLANT TEAM CODE:T18
It is humbly submitted before the Hon’ble Court that therefore the Argument ‘Breach of Privacy’ is justifiable
in the absence of the law relating to the privacy.

3. WHETHER THE APPLICATION OF PRIVACY POLICY CONSTITUTES A VIOLATION OF

PRINCIPLES OF ARTICLE 14?

It is humbly submitted before the Hon’ble court that Whatsup having more than 400 million users having the
dominance in the market and using his dominant position trying to create the monopolistic market which is
therefore, constitute the violation of Section 4 of the Competition Act.

Petitioner submits that he 2021 Update in relation to any violation of the provisions of Section 4 of the
Competition Act, 2002. Petitioner submits that the petitioner is examining as to whether the excessive data
collection by WhatsApp and the use of the same has any anti-competitive implications. He submits that the
concentration of data in the hands of WhatsApp may itself raise competition concerns, thereby resulting in
violation of the provisions of Section 4 of the Act.

It is humbly submitted before the Hon’ble court that in relation to the dominance of WhatsApp in the market for
OTT messaging apps through smartphones in India, the Commission in Harshita Chawla case16 noted that:

“84. Such data shows that WhatsApp messenger is the most widely used app for social messaging, followed by
Facebook Messenger in the relevant market delineated by the Commission supra. Further, it is way ahead of
other messaging apps like Snapchat, WeChat etc. showing its relative strength. Given that WhatsApp messenger
and Facebook Messenger are owned by the same group, they do not seem to be constrained by each other,
rather adding on to their combined strength as a group. Moreover, WhatsApp Messenger works on direct
network effects where an increase in usage of a particular platform leads to a direct increase in the value for
other users—and the value of a platform to a new user will depend on the number of existing users on that
platform. Thus, given its popularity and wide usage, for one-to-one as well as group communications and its
distinct and unique features, WhatsApp seems to be dominant.

85. The Commission is cognizant that the data relied upon by the Informant cannot be said to be free from
infirmities and is based on global usage or users. However, in the absence of concrete data/information
available in the Indian context other than the subjective information on popularity of WhatsApp, the
Commission is of the view that these trends and results can be used as a proxy. More so, these trends appear to
16
Harshita Chawla Vs. WhatsApp Inc. (COMPETITION COMMISSION OF INDIA) Case No. 15 of 2020
17
MEMORANDUM FOR APPELLANT TEAM CODE:T18
be intuitively in sync with the information available in public domain, which though does not confirm market
share/strength of WhatsApp in any quantitative terms, nevertheless point towards its dominance.

86. Further, with respect to the dependence of consumers on the enterprise and countervailing buyer power,
WhatsApp undeniably has the advantage of reaping the benefits of network effect. Network effect in turn
ensures that customers do not switch to other platforms easily unless there is a new competitor entering the
market with an altogether disruptive technology. Moreover, lack of interoperability between platforms is
another concern, as a result of which customers may be unwilling to incur switching costs, despite the same
being primarily psychological.

87. As regards the barriers to entry, they may arise indirectly as a result of the networks effects enjoyed by the
dominant player in the market, i.e., WhatsApp, in the present case. Since networks effects lead to increased
switching costs, new players may be disincentivized from entering the market.”

It is humbly submitted before the Hon’ble court that in this regard, it is pertinent to note that in Vinod Gupta
case17, it was alleged that by mandating users to agree with its terms of service and privacy policy as updated in
August, 2016, WhatsApp has been sharing information/ data of its users with ‘Facebook’ which in turn was
being used by ‘Facebook’ for targeted advertisements, in contravention of the provisions of Section 4 of the
Act. While closing the matter, the Commission pertinently noted that WhatsApp provided its users an option
“…to ‘opt out’ of sharing user account information with ‘Facebook’ within 30 days of agreeing to the updated
terms of service and privacy policy”. However, no such option has been granted to the users under the present
policy update.

In Vinod Gupta case18, the fact that WhatsApp provided an option to its users to ‘opt out’ of sharing user
account information with ‘Facebook’ within 30 days of agreeing to the updated terms of service and privacy
policy was a critical consideration in deciding against the alleged contravention by WhatsApp. As against this,
the new privacy policy has removed the ‘opt out’ option given to the users and the users have now to
mandatorily agree to sharing of their personalized data by WhatsApp with Facebook Companies and further the
policy envisages data collection which appears to be unduly expansive and disproportionate. This is borne from
the fact that it seeks to capture, amongst others, transactions and payments data; data related to battery level,
signal strength, app version, mobile operator, ISP, language and time zone, device operation information,
service related information and identifiers etc.; location information of the user even if the user does not use
location related features besides sharing information with Facebook on how user interacts with others (including
businesses) when using WhatsApp services. All such data collected by WhatsApp would be shared with
17
Vinod Gupta Vs. WhatsApp Inc. (COMPETITION COMMISSION OF INDIA) Case No. 99 of 2016
18
Ibid
18
MEMORANDUM FOR APPELLANT TEAM CODE:T18
Facebook Companies for various usages envisaged in the policy. The Commission also took note of the
submission of WhatsApp that it would continue to honour the ‘opt-out’ option exercised by users during 2016
Update; however, the 2021 Update do not create any carveout for such users who opted for not sharing their
information with Facebook.

It is humbly submitted before the Hon’ble Court that The Competition Commission held that “The Commission
is of further opinion that users, as owners of their personalized data, are entitled to be informed about the extent,
scope and precise purpose of sharing of such data by WhatsApp with other Facebook Companies. However, it
appears from the Privacy Policy as well as Terms of Service (including the FAQs published by WhatsApp), that
many of the information categories described therein are too broad, vague and unintelligible. For instance,
information on how users “interact with others (including businesses)” is not clearly defined, what would
constitute “service-related information”, “mobile device information”, “payments or business features”, etc. are
also undefined. It is also pertinent to note that at numerous places in the policy while illustrating the data to be
collected, the list is indicative and not exhaustive due to usage of words like ‘includes’, ‘such as’, ‘For
example’, etc., which suggests that the scope of sharing may extend beyond the information categories that have
been expressly mentioned in the policy. Such opacity, vagueness, open-endedness and incomplete disclosures
hide the actual data cost that a user incurs for availing WhatsApp services. It is also not clear from the policy
whether the historical data of users would also be shared with Facebook Companies and whether data would be
shared in respect of those WhatsApp users also who are not present on other apps of Facebook i.e., Facebook,
Instagram, etc.”

It is humbly submitted before the Hon’ble court that commission further held in above mentioned case that
“Further, users are not likely to expect their personal data to be shared with third parties ordinarily except for
the limited purpose of providing or improving WhatsApp’s service. However, it appears from the wordings of
the policy that the data sharing scheme is also intended to, inter alia, ‘customise’, ‘personalise’ and ‘market’ the
offerings of other Facebook Companies. Under competitive market condition, users would have sovereign
rights and control over decisions related to sharing of their personalized data. However, this is not the case with
WhatsApp users and moreover, there appears to be no justifiable reason as to why users should not have any
control or say over such cross-product processing of their data by way of voluntary consent, and not as a
precondition for availing WhatsApp’s services.”19

It is humbly submitted before the Hon’ble Court that Delhi High Court in the case of WHATSAPP LLC v
COMPETITION COMMISSION OF INDIA & ANR, 2021, 20 held that users earlier had such control over

19
Supra Note 17
20
WhatsApp Llc vs Competition Commission of India W.P.(C) 4378/2021
19
MEMORANDUM FOR APPELLANT TEAM CODE:T18
sharing of their personal data with Facebook, in terms of an ‘opt-out’ provision available for 30 days in the
previous policy updates. However, the same has not been made available to users this time. Thus, users are
required to accept the unilaterally dictated ‘take-it-or-leave-it’ terms by a dominant messaging platform in their
entirety, including the data sharing provisions therein, if they wish to avail their service. Such “consent” cannot
signify voluntary agreement to all the specific processing or use of personalized data, as provided in the present
policy. Users have not been provided with appropriate granular choice, neither upfront nor in the fine prints, to
object to or opt-out of specific data sharing terms, which prima facie appear to be unfair and unreasonable for
the WhatsApp users.21

It is humbly submitted before the Hon’ble court that on a careful and thoughtful consideration of the matter, the
conduct of WhatsApp in sharing of users’ personalized data with other Facebook Companies, in a manner that
is neither fully transparent nor based on voluntary and specific user consent, appears prima facie unfair to users.
The purpose of such sharing appears to be beyond users’ reasonable and legitimate expectations regarding
quality, security and other relevant aspects of the service for which they register on WhatsApp. One of the
stated purposes of data sharing viz. targeted ad offerings on other Facebook products rather indicates the
intended use being that of building user profiles through cross-linking of data collected across services. Such
data concentration may itself raise competition concerns where it is perceived as a competitive advantage. The
impugned conduct of data-sharing by WhatsApp with Facebook apparently amounts to degradation of non-price
parameters of competition viz. quality which result in objective detriment to consumers, without any acceptable
justification. Such conduct prima facie amounts to imposition of unfair terms and conditions upon the users of
WhatsApp messaging app, in violation of the provisions of Section 4(2)(a)(i) of the Act.22

It is humbly submitted before the Hon’ble court that the Competition commission held that “the Commission is
of the considered opinion that WhatsApp has prima facie contravened the provisions of Section 4 of the Act
through its exploitative and exclusionary conduct, as detailed in this order, in the garb of policy update. A
thorough and detailed investigation is required to ascertain the full extent, scope and impact of data sharing
through involuntary consent of users.”

It is humbly submitted before the Hon’ble Court that Art.14 of the Constitution, prescribes test of absence of
arbitrariness. If a law is vague, it fails the test of absence of arbitrariness. The vagueness of law makes the right
holders vulnerable to the fancies of authorities applying the law. A substantial criminal or civil wrong may be

21
Supra Note 17
22
Supra note 17
20
MEMORANDUM FOR APPELLANT TEAM CODE:T18
barred to be proceeded against by the victims on account of vagueness of the legislation providing immunity to
the wrongs committed by the persons enjoying the immunity.

In Kartar Singh v. State of Punjab,23 it was held:

“130. It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions
are not clearly defined. Vague laws offend several important values. It is insisted or emphasized that laws
should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he
may act accordingly…Such a law impermissibly delegates basic policy matters to policemen and also judges for
resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory
application. More so uncertain and undefined words deployed inevitably lead citizens to ‘steer far wider of the
unlawful zone … than if the boundaries of the forbidden areas were clearly marked.”

In Shreya Singhal v. Union of India,24 Justice RF Nariman writing for the division bench of the Supreme Court
held that:

“59. It was further held that a penal law is void for vagueness if it fails to define the criminal offence with
sufficient definiteness. Ordinary people should be able to understand what conduct is prohibited and what is
permitted. Also, those who administer the law must know what offence has been committed so that arbitrary
and discriminatory enforcement of the law does not take place.”

It is submitted before the Hon’ble Court that the similar analogy can be drawn to consider that the Privacy
Policy of the WhatsUp is vague and they did not specify about the purpose for the data collection and how they
will secure the privacy of the user and that constitute the violation of Article 14 of the Constitution.

It is humbly submitted before the Hon’ble court that it is pertinent to note that in our instant case the WhatsUp
Imposing Unfair and discriminatory privacy policy which is evidently oppose to the public interest at large, here
WhatsUp is trying to impose arbitrary conditions of its services obliging users to accept the terms of its privacy
policy by threatening to withhold its services and hence WhatsUp is somehow trying to threaten its user on the
account of the termination of the available services if the users does not accept the (impugned policy), and
therefore, it is solely violation of Article 14 of Constitution of Indiana.

23
Kartar Singh v. State of Punjab, 1961 AIR 1787
24
Shreya Singhal v. Union of India, AIR 2015 SC 1523
21
MEMORANDUM FOR APPELLANT TEAM CODE:T18
4. WHETHER PRESENCE OF DATA PROTECTION LAW COULD HAVE AVOIDED THE
APPLICATION OF NEW PRIVACY POLICY?

It is humbly submitted before the court that the presence of the Data protection law could have avoided the
application of new privacy policy presence of General Data Protection Regulation that is regularatory
mechanism in European countries, there the whatsUp did not updated the privacy policy.

It is humbly submitted before the court that India has no explicit statute relating solely to data protection
and privacy. However, in the context of digital data processing, certain aspects of data protection are
covered under the Information Technology Act of 2000 (‘IT Act’) and the Reasonable Security
Practices and Procedures and Sensitive Personal Data or Information Rules of 2011 (‘Data Protection
Rules’).

It is humbly submitted before the Hon’ble court that Government bodies and individuals engaged in data
processing are not covered under the Data Protection Rules. Only companies, including firms, sole
proprietorships, and associations of individuals engaged in commercial/professional activities
(collectively, the ‘body corporate’) fall under the purview of these Rules. 25

It is humbly submitted before the Hon’ble court that in the context of data protection measures for data
processing, the Rules distinguish between ‘sensitive personal data or information’ and other ‘personal
information.’ ‘Personal information’ comprises information relating to a natural person which, in
combination with other information, is directly or indirectly capable of identifying such natural
person, 26  and within its ambit exists the smaller subset of ‘sensitive personal data or information’:
exhaustively pertaining to passwords, finances, health conditions, sexual orientation, medical records
and history, and biometric information. 27

It is humbly submitted before the Hon’ble court that the key limitation of the Data Protection Rules is that
‘personal information’ is confined to information capable of identifying a particular person.
Information of personal nature pertaining to other persons that are knowingly or unknowingly captured
in the background—as in the case of the internet of things—is not covered by these Rules. The limited
scope of ‘sensitive personal data or information’ is an additional limitation. As technology like the
25
Explanation (i) to Section 43A, Information Technology Act, 2000
26
Rule 2(1)(i), Data Protection Rules
27
Rule 3, Data Protection Rules.
22
MEMORANDUM FOR APPELLANT TEAM CODE:T18
‘internet of things,’ facilitates ubiquitous data collection, other sensitive personal information such as
location, habits, and activity among others should be encompassed by the purview of these Rules.

It is humbly submitted before the Hon’ble court that in respect to the anonymization of data, it can be argued
that if the collected data is encrypted such that it is no longer capable of revealing identities, then the de-
identified data would not qualify as personal information, and as such, would not fall under Data Protection
Rules. However, Data Protection Rules encompass such ‘personal information,’ which, although not directly
capable of identifying a person, may – in combination with other information available or likely to be available
with a body corporate – do so.4 In the context of big data, this implies that even if data collectors anonymize
individual datasets obtained from disparate sources so that the person to whom the data corresponds cannot be
identified, if the identity of the person can be revealed upon aggregation of this data, then the anonymized
individual datasets and the aggregated data would be classified as personal information under Data Protection
Rules.

It is humbly submitted before the Hon’ble court that Rule 4 of the Data Protection Rules requires body
corporate across the chain of data processing that engage in the collection, storage, or otherwise deal with, or
handle ‘personal information,’ to publish a privacy policy on their websites. The privacy policy is to clearly
delineate their data processing practices, the type of personal information collected, the purpose of collection
and usage, as well as details of disclosure made to third parties, and the reasonable security practices and
procedures adopted.28

It is humbly submitted before the Hon’ble court that Rules 5, 6, and 7 of the Data Protection Rules mandate that
the body corporate obtain consent from data providers prior to any collection, disclosure, or transfer of data.
Rule 5 also requires a body corporate to disclose the purpose of collection, intended recipients of information,
the particulars of the collecting agency, and where the collected information will be stored, as well as the details
of the intended use of the collected data.29 These stipulations are limited in their applicability to sensitive
personal data or information. Considering how narrow the scope of sensitive personal data or information is, it
leaves a large amount of data for processing without obtaining prior consent or making adequate disclosure to
data providers.

It is humbly submitted before the Hon’ble court that Consent and notice do not fare well in the world of
ubiquitous data exchanges. Where information is continuously collected through sensors on a real-time basis, it
would be practically impossible to obtain prior written consent before each instance of data collection. Instead,

28
Rule 4, Data Protection Rules
29
Rule 5(1) and 5(3), Data Protection Rules.
23
MEMORANDUM FOR APPELLANT TEAM CODE:T18
services such as WhatsApp and Facebook have incorporated a perpetual consent on part of their users within
their terms of service.

It is humbly submitted before the Hon’ble court that Further, it is rather difficult for data collectors to provide
the particulars of the purpose and usage of the information collected in real time, and it would be impossible for
them to identify the multiple hands through which the impugned data may pass in the future as with the
continuous improvement in data processing analytics, newer uses of big data continue to be uncovered. This is
further complicated by the notification requirement of the data provider to divulge the intended use of data,
which is directly tied to the actual collection and usage of data. Data collectors are barred from collecting data
beyond what is necessary for the function or activity of the body corporate 30 and from using the collected data in
any manner that is not disclosed.31 Data collectors also cannot retain the collected data for longer than is
required to meet said purposes.32 The only way left for data collectors is to make wide disclosures of the
potential use of data in their terms of service for the processing of all existing and future data, which ends up
being completely unfruitful in terms of data protection.

It is humbly submitted before the Hon’ble court that the effectiveness of prior consent and notice itself remains
doubtful. Individuals usually ignore such notices or face difficulty in understanding their scope given the
complexity of data flows. Sometimes individuals have no choice but to agree to the terms of service to avail
themselves of the desired service or product. As such, obtaining prior consent is increasingly becoming a
symbolic exercise.

It is humbly submitted before the Hon’ble court that the EU data protection law is increasingly promoted as the
gold standard for data protection laws around the world as it strives to balance commercial concerns of data
processors with privacy protection. While it stipulates strict accountability obligations upon businesses dealing
in data controlling and processing, and further lays down steep fines in case of non-compliance, yet, it ensures
smoother flow of data across data exchange channels by establishing uniformity in regulation of data
processing. The EU law boasts of an expanded territorial reach as it covers those data processers based outside
of the EU whose data processing activities relate to EU data subjects. Further, the law provides for a wider
definition of ‘personal data’ by specifically including within the definition information relating to: location data,
online identifiers, physical, physiological, genetic, mental, economic, cultural and social identity of a person, as
long as such information is capable of identifying the person, either directly or indirectly. The law also shifts its
focus from merely mandating notification of data collection to requiring data controllers engaging in high-risk

30
Rule 5(2), Data Protection Rules.
31
Rule 5(5), Data Protection Rules
32
Rule5(4), Data Protection Rules
24
MEMORANDUM FOR APPELLANT TEAM CODE:T18
operations to set up effective procedures and mechanisms for data protection and carry out impact assessments,
for ascertaining the likelihood and severity of data breach. As a result, more countries have adopted not only its
uniform approach to regulating the processing of personal data but have also accepted its concept and definition
of personal data as correct. While conceding that the EU law is the model standard for legislating on data
protection, the government can also examine other legal aspects of data processing captured in the EU law,
including the right of data providers to object to their data being processed for direct marketing purposes,
regulation of profiling based upon collected / collated data, deletion of data upon completion of processing, data
protection impact assessment to ascertain the risk involved, privacy by design, and data lifecycle management.

It is humbly submitted before the Hon’ble court that the presence of the strict Data Protection Law could have
avoided the application of new privacy policy also the law will secure the privacy of individual by any future
privacy infringement to.

25
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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the counsel on behalf of
Appellant humbly submits that the Hon’ble Court may be pleased to adjudge and declare:

● Special Leave to Appeal may be allowed to maintain before the Hon’ble Supreme Court of Alberia.
● The Practice of Nithara is an essential tenet and protected under article 25, 26, and 29 of the Alberian
Constitution.
● Section 2 of the Kain Religious Freedom (Protection of Practice of Nithara) Act, 2020 is constitutional.
● The Religious Practice Nithara does not come under criminal offence u/Sec. 306(Abetment to suicide)
and u/sec. 309 APC to (Attempt to commit suicide).
● The court may award compensation to the appellant against the act of defaming Kain religion conducted
by respondents and to impose heavy costs on respondents as exemplary action.

OR

Any other relief which this Hon’ble Court may deem fit and proper also be passed in favour of the
appellant against the respondents as facts and circumstances of the case to meet the ends of justice,
equity and good conscience.

All of which is respectfully affirmed and submitted.

Counsel for Appellant

Sd/-

26