6TH SYMBIOSIS LAW SCHOOL, HYDERABAD MOOT COURT COMPETITION, 2022

TEAM CODE:- TN-618

6TH SYMBIOSIS LAW SCHOOL, HYDERABAD

NATIONAL MOOT COURT COMPETITION

BEFORE THE HONOURABLE SUPREME COURT OF ATLANTIS

UNDER ARTICLE 32 OF THE CONSTITUION OF ATLANTIS

WRIT PETITION NO. _/2022

TANVI & CEO OF FRIENDSBOOK

UNION OF ATLANTIS

~ MEMORIAL FOR THE PETITIONER~

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6TH SYMBIOSIS LAW SCHOOL, HYDERABAD MOOT COURT COMPETITION, 2022

TABLE OF CONTENTS

CONTENT P. NO.

LIST OF ABBREVIATIONS

INDEX OF AUTHORITIES
 CASE LAWS
 STATUTES
 BOOKS
STATEMENT OF JURISDICTION

STATEMENT OF FACTS

STATEMENT OF ISSUES

SUMMARY OF ARGUMENTS

ARGUMENTS ADVANCED

ISSUE 1:- Whether provisions of the Act are unconstitutional and liable to
be struck down?

ISSUE 2:- Whether the powers conferred upon the Central Government
under Section 86 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 Friendsbook can be held liable under law for breach of
the Intermediary Rules?
PRAYER

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LIST OF ABBREVIATIONS

& and

A.I.R All India Reporter

Art. Article

Auth. Authority

DPA Data Protection Authority

Guj. Gujarat

Int’l International

Ltd. Limited

n Supra

Ors. Others

Retd. Retired

S. Section

S.C. Supreme Court

S.C.C. Supreme Court Cases

S.C.R. Supreme Court Reporter

T.N. Tamil Nadu

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INDEX OF AUTHORITIES

TABLE OF CASES

Ajay Hasia v Khalid Mujib Sehravardi,(1981) 1 SCC 722

E.P. Royappa (n 108)
Francis Bennion, Bennion on Statutory Interpretation (Version 24, Vol 14, 2010) 442.
(2002)
Google India Private Ltd v. Visakha Industries ltd and others
Justice K.S. Puttaswamy (Retd) (2017) 10 SCC 1; AIR 2017 SC 4161

Maneka Gandhi v. Union of India AIR 1978 SC 597; (1978) 1 SCC 248

Om Kumar v. Union of India, (2010) 2 SCC 386

Padma Sundara Rao v State of T.N SCC 533

Prakash Nath Khanna v Commissioner of Income Tax, (2004) 9 SCC 686

Ramana Dayaram Shetty v Int’l Airport Auth. of India & Ors, (1979) 3 SCC 489

Romesh Thappar v. State of Madras

State of Guj. v Hon’ble Mr. Justice R.A. Mehta (Retd), (2013) 3 SCC

Transport Corporation v DTC Mazdoor Union,

Union of India v Tulsiram Patel

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BOOKS

M.P. Jain Constitution of India

JN Pandey, Constitution of India

Lectures on Administrative Law by C K Takwani

PSA Pillai Indian Penal Code

STATUTES

Indian Penal Code

Data Protection Act, 2021

Constitution of India, 1950

Information Technology Act, 2000

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STATEMENT OF JURISDICTION

The petitioner has approached the Hon’ble Supreme Court and filed writ petition of Habeas
Corpus under Article 32 of Constitution of Atlantis.

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STATEMENT OF FACTS

1. The Petitioner, Tanvi residing in Atlantis, a democratic country shared the following
view on ‘Friendsbook’, a platform where users can create profiles and share
information, thoughts, ideas, photographs, and videos, etc. with one another,

“The COVID-19 pandemic took the world by storm in March 2020 when the world
was unprepared for such an event. It has been more than a year and two ‘waves’ of the
virus already, but the Government is yet to care for its citizens. Decision making
powers and yet no valuable decisions being made for the people! Here we are, in
January 2022, where every second person is suffering from the disease (yet again),
more than half of the population is left unvaccinated, but even previous fatalities and
pleas to the Government have been futile. We have failed to help our people and care
for them like a responsible nation should.”

2. Although Petitioner’s account was private where they can choose to share content either
with the public at large or with certain specific users, respectively the police arrested the
petitioner without stating the reasons for it. Furthermore, her profile has been blacklisted
by Friendsbook.

3. Afterwards Data Protection authority established under Data Protection Act, 2021
arrested Tanvi under section 86 of the Act.

4. In addition they arrested the CEO of the Friendsbook since the post was shared on
Friendsbook platform.

5. Since the arguments has been taken on the behalf of Friendsbook, the Petitioner has
filed writ petition of Habeas Corpus to the Hon’ble Supreme Court of Atlantis.

6.

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STATEMENT OF ISSUE

The following issues have been placed before the Hon’ble Supreme Court to adjudicate upon:

~ ISSUE (1) ~

Whether provisions of the Act are unconstitutional and liable to be struck down?

~ ISSUE (2) ~

Whether the powers conferred upon the Central Government under Section 86 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 Friendsbook can be held liable under law for breach of the Intermediary

Rules?

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SUMMARY OF ARGUMENTS

~ ISSUE (1) ~

Whether provisions of the Act are unconstitutional and liable to be struck down?

It is humbly submitted before the Apex Court that the Data Protection Act, 2021, (“Act”)
introduced by Minister of Electronics and information technology is violative of Part III of
the Constitution of Atlantis. Therefore, the Data Protection Act, 2021, must be declared as
such because, firstly, the said Act is ultra vires to the constitution of Atlantis. The Act has the
chilling effect on the fundamental right of free speech and expression guaranteed by Article
19(1) (a) of the Constitution of Atlantis. The said regulation is not in accordance with the
principles of Natural Justice which is firmly grounded in the Art. 14 and Art. 21 of the
constitution of Atlantis. The said regulation is arbitrary and excessive.

~ ISSUE (II) ~

Whether the powers conferred upon the Central Government under Section 86 of the

Act are arbitrary and the Section should be struck down?

It is humbly submitted before the Hon’ble Supreme Court that power conferred upon the
central government under Section 87 of the Data Protection Act, 2021 is arbitrary .

It is so because it is violative of the Principle of the Natural Justice enshrined firmly under
Art. 14 of Constitution of Atlantis as well as violative of Separation of powers, which is part
of the basic structure of the Constitution of Atlantis.

The principle of natural justice does not enjoy any express provision in Constitution of
Atlantis however, it is firmly grounded in Art. 21 that guarantees right to life and liberty
which is a fundamental provision to protect liberty and ensure a life of dignity, along with

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Art. 14. Also, it has violated the Separation of Powers as the composition of Data Protection
Authority made under Data Protection Act, 2021 is heavly controlled by the Central
Government of Atlantis.

~ ISSUE III ~

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?

It is humbly submitted before the Hon’ble Supreme Court that the Data Protection Authority
has not been lawfully established under the Act, Pervasive government presence is uniformly
contemplated for all the appointments of DPA, the appointments made lacks of transparency,
Therefore the actions of the Data Protection Authority cannot be valid.

~ ISSUE 4 ~

Whether Friendsbook can be held liable under law for breach of the Intermediary

Rules?

It is humbly submitted before the Hon’ble Supreme Court that Friendsbook should be held
liable for breach of the Intermediaries Rules.

Under Section 79 of the Information Technology Act, 2000, intermediaries are granted
protection from incurring any liability for third-party data available on their platform or
hosted by them. This protection is essential as various intermediaries that do not monitor the
content posted by third-party users on their platforms. Also, if any such content uploaded by

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a third-party user is in violation of any law, the intermediary does not incur any liability for
such information.

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ARGUMENTS ADVANCED

ISSUE (1):- Whether provisions of the Act are unconstitutional and liable to be struck
down?

It is humbly submitted before the Hon’ble Supreme Court that the Data Protection Act, 2021
(“Act”) introduced by Minister of Electronics and Information Technology is violative of Part
III of the Constitution of Atlantis.

The Act, 2021 is unconstitutional because it is violative of right of privacy as guaranteed

under Art. 21 and the right of freedom of speech and expression as mentioned under Art. 19
(1) (a) of the Constitution of Atlantis.

The very first line of the Preamble of the Act states “to provide for protection of the digital
privacy of individuals relating to their personal data” which itself proves that the object of the
whole Act is concerned about protection of individual’s data privacy. However, it infringes
this right by arresting a user of Friendsbook application, Tanvi because her profile is private,
and the content is only visible to select individuals thereby, proving that she does not have
the intention of sharing her views to public, including the Central Government. Thus, her post
does not hurt the “interest of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States or public order.” She has only exercised her right to
freedom of speech and expression as per Art. 19 (1) (a), which states:

“19. Protection of certain rights regarding freedom of speech, etc. - (1) All citizens
shall have the right— (a) to freedom of speech and expression;”

In the case of Romesh Thappar v. State of Madras,1 it was held that freedom of speech lay at
the foundation of all democratic organizations.

Also, it was her audience that shared screenshots of her post on other platforms and not the
Petitioner 1 herself. The post was a “fair comment” and none of the restrictions under Art. 19
(2) are applicable, which states:

1
[1950] S.C.R. 594 at 602.

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“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-clause in the
interests of the sovereignty and integrity of India, the security of the State, friendly relations
with foreign States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence.”

Legislative intent and the reasons for enactment of statutes are key to understand the scope
and powers that a statute accords during interpretation.2 The primary rule of the interpretation
and construction of statutes is that the provisions of the statute must be constructed keeping
in mind the purpose behind them.3

In order for legislation to be within the boundaries of Art. 14 of the Constitution of Atlantis,
it is required that it is rational, non-arbitrary and adequately directed towards a specific
objective sought to be achieved.4 The plot of the Act acknowledges the processing of the data
of data principals after obtaining consent for the same, however in many of the provisions it
has been exempted when the data is processed in the interest of national security, or for
prevention, investigation and prosecution of offences. In the mentioned cases the state does
not need to obtain consent and such exemption is too broad.

In the present case the aim of the said Act is to safeguard important information and to ensure
protection of the data of individuals from having their personal information misused and
exploited, but the said Act finds no rational relation to the objective sought to be achieved.

Any legislation that is arbitrary is an antithesis to the equality guaranteed under Art. 14 of the
Constitution of Atlantis.5 Art. 14 strikes not only at arbitrariness in the legislation but also
possible arbitrariness in State action to ensure equality and fairness of treatment. 6 The word
‘arbitrarily’ has been defined by the Hon’ble SC to mean:

“in an unreasonable manner, as fixed or done capriciously or at pleasure, without

adequate determining principle….”7
2
State of Guj. v Hon’ble Mr. Justice R.A. Mehta (Retd), (2013) 3 SCC 1.
3
Prakash Nath Khanna v Commissioner of Income Tax, (2004) 9 SCC 686; Padma Sundara Rao v State of T.N,
SCC 533; Francis Bennion, Bennion on Statutory Interpretation (Version 24, Vol 14, 2010) 442. (2002)
4
Ramana Dayaram Shetty v Int’l Airport Auth. of India & Ors, (1979) 3 SCC 489
5
E.P. Royappa (n 108).
6
Maneka Gandhi v. Union of India AIR 1978 SC 597; (1978) 1 SCC 248; Ajay Hasia v Khalid Mujib
Sehravardi,(1981) 1 SCC 722; Om Kumar v. Union of India, (2010) 2 SCC 386.
7
Sharma Transport (n 118)

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Further, the Principle of Proportionality under Art. 14, which mandates – among other tests –
that a State action or legislation must not be disproportionate or excessive compared to the
objective sought to be achieved, especially when less-restrictive option is available. 8
Section 44(c) of the Act, lays down one of the grounds for conviction of an offence which in
the union government’s opinion involves moral turpitude. Therefore it is not difficult to
imagine how this opens the door for potentially arbitrary decision-making, what offence
involves or does not involve moral turpitude is arbitrarily up to the union government’s
discretion, this is vague and susceptible to misuse by the authorities and promotes arbitrary
action.

ISSUE (2) :- Whether the powers conferred upon the Central Government under Section
86 of the Act are arbitrary and the Section should be struck down?

It is humbly submitted before the Hon’ble Supreme Court that power conferred upon the
central government under Section 87 of the Data Protection Act, 2021 is arbitrary .

It is so because it is violative of the Principle of the Natural Justice enshrined firmly under
Art. 14 of Constitution of Atlantis as well as violative of Separation of powers, which is part
of the basic structure of the Constitution of Atlantis.

The principle of natural justice does not enjoy any express provision in Constitution of
Atlantis however, it is firmly grounded in Art. 21 that guarantees right to life and liberty
which is a fundamental provision to protect liberty and ensure a life of dignity, along with
Art. 14.

In the case of Maneka Gandhi v Union of India9 and Union of India v Tulsiram Patel,10 it was
held that non-observance of the principles of natural Justice in State action violates Article
14.

Here, the Hearing Rule “Audi Alteram Partem” of the Principle of Natural justice has been
violated as according to this rule there should be given a fair opportunity to accused to
express their point of view to defend himself. However, it infringes this principle by arresting
8
Justice K.S. Puttaswamy (Retd) (2017) 10 SCC 1; AIR 2017 SC 4161, Modern Dental College &
Research Centre (n29).
9
AIR 1978 SC 597; (1978) 1 SCC 248
10
1985 AIR 1416, 1985 SCR Supl. (2) 131

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the Petitioner, Tanvi, without giving her opportunity to defend herself. In the case of Delhi
Transport Corporation v DTC Mazdoor Union,11 the court had held that the audi alteram
partem rule, in essence, enforces the equality clause in Art.14.

Also, it has violated the rule against bias “nemo judex in causa sua” or “no man a judge in his
own cause” and Separation of Powers as the composition of Data Protection Authority made
under Data Protection Act, 2021 is heavily controlled by the Central Government of Atlantis.

As per Montesquieu, liberty cannot be protected, unless there is a separation of power. To

avoid this situation with a view to checking the arbitrariness of the government, he suggested
that in the power of governance there should clear cut division of power between the three
organs of the state i.e. executive, legislature and the judiciary. In his words:

“When the legislative and executive powers are united in the same person, or in the same
body of magistrates, there can be no liberty, because apprehensions may arise, lest the same
monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty if the judicial power be not separated from the legislative and the
executive powers.”¹

As under section 42(2) the Chairperson and the members of the authority shall be appointed
by the Central Government on the recommendation made by a selection committee consisting
of the cabinet secretary as the chairperson of the selection committee, the Attorney general of
Atlantis, the secretary to the government of Atlantis in the ministry or department dealing
with the legal affairs, and so on.

Thus, the selection process of members of Data Protection Authority is deeply influenced by
the executive. In addition, the Central Government has the power to issue it directions in the
name of sovereignty and integrity, security of State, friendly relations with foreign States or
public order as mentioned in S. 87 of the Act, by which the Government directed the said
Authority to arrest the Petitioner without reasons. There is absence of Separation of Powers
thus, violating the basic structure of the Constitution.

11
1991 AIR 101, 1990 SCR Supl. (1) 14

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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?

It is humbly submitted before the Hon’ble Supreme Court that the Data Protection Authority
has not been lawfully established under the Act. It is because Chapter IX of the Act, which is
concerned with the functioning and powers of DPA, has various loopholes present therein,
such as:

Composition of DPA comprises a heavy hand of State (Government officials), all the
members are indirectly controlled, influenced, and affected by the government, even the
member who will be independent expert is also to be nominated by the Union Government.
Pervasiveness of a government presence is uniformly contemplated for all the appointments
of DPA.

S.46 (2) of the Act states that, in case the chairperson is unable to attend any meeting of the
authority in such event, any member chosen by the other members shall preside for the same.
However, the S.42 (1) of the Act specifies the composition of DPA i.e. One Chairperson and
Maximum of Six all time Members. There is no provision relating to the situation of
dissenting opinion and disagreement of the members, who will preside in such case.

There is a conspicuous absence of representation of citizen interests, as well as an absence of

representation from corporate or industry interests from such a pivotal body.

The appointment of chairperson and members must be transparent with an open call for
applications and proceedings of the committee must be a matter of public record. There must
be a bar on persons with vested political or business interests who is to be appointed and it
should be free from undue governmental interference.

ISSUE (4) :- Whether Friendsbook can be held liable under law for breach of the
Intermediary Rules?

It is humbly submitted before the Hon’ble Supreme Court that Friendsbook should be held
liable for breach of the Intermediaries Rules.

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Under Section 79 of the Information Technology Act, 2000, intermediaries are granted
protection from incurring any liability for third-party data available on their platform or
hosted by them. This protection is essential as various intermediaries that do not monitor the
content posted by third-party users on their platforms. Also, if any such content uploaded by
a third-party user is in violation of any law, the intermediary does not incur any liability for
such information.

Next, we must consider whether there is any express legal bar engrafted in any provisions of
the Code or the Act governing the field to the institution and continuance of the proceedings.
It is here that provisions of Section 79 of Information Technology Act, 2000 would assume
significance. Section 79 of the Information Technology Act, as it was enacted originally, read
as follows: “Chapter XII SERVICE PROVIDERS NOT TO BE LIABLE IN CERTAIN
CASES.”12

Friendsbook has also represented to the Government of Atlantis that it is compliant with all
applicable obligations under the Intermediary Rules.13 Friendsbook is an intermediary which
has more than 50 lakh registered users in India, which clearly advises that it is not possible to
monitor and scrutinize all the data posted by third party.14 Friendsbook is categorized as a
‘significant social media intermediary’ under the Intermediary Rules.15

Intermediary is a service provider as per S.79 of the IT Act 2000, amended, Friendsbook is a
service provider which provides a safe and free space to its user and they can create profiles
on that platform, share information, thoughts, ideas, photographs, and videos, etc. with one
another. It is contended that under Section 79 of Information Technology Act, 2002, an
intermediary service provider is not liable for content uploaded by third parties. 12 The post
of Tanvi does not include any statement which shows that the intermediary did not took due
diligence and there is no legal obligation which has been violated on the part of Friendsbook.
It has fulfilled all the requirements of due diligence as laid down in Section 79 (2) (c) of the
IT Act.

12
Google India Private Ltd v. Visakha Industries, 10 Dec 20192
13
Moot Proposition 4
14
Moot Proposition Para 4
15
Google India Private Ltd v. Visakha Industries ltd and others, 18 Nov 2016

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Rules, 2011 (Intermediary Guidelines) under which the standards required for adequate due
diligence were detailed. As per Rule 3 of the Intermediary Guidelines, the intermediaries are
required, inter alia:

(a) to publish terms and policies on their platforms informing their user of the rules to be
abided by them while accessing the platforms, and by following the guidelines, an
intermediary complies with one part of the requirement laid down in Section 79 (2)
(c) of the IT Act;
(b) to comply with the provisions of Section 79 (2) of the Act; and
(c) to remove any unlawful content within 36 hours of receiving actual knowledge of such
content.

It is submitted that Friendsbook does not violates the any provision of the Act, as the above
mentioned provision itself provides the immunity to the intermediary and entails a positive
obligation of due diligence, which has been followed, therefore there is no sufficient,
reasonable ground for the arrest of the appellant and thereof we request for the grant of bail,
as the appellant is not guilty of any offence.

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PRAYER

Wherefore, in the light of the issues raised, arguments advanced, reasons given and
authorities cited, it is most humbly prayed before this Hon’ble Court, that it may be pleased
to:

A. Declare that, the Data Protection Act, 2021 is liable to be struck down being
unconstitutional.

B. To issue a writ of mandamus or any other appropriate writ declaring the Data Protection
Act, 2021 to be violative of Part III of the Constitution of Atlantis.

C. Also, pass any other relief that the Hon’ble Court may be pleased to grant in favour of the
petitioner in the interest of justice, equity and good conscience, all of which is respectfully
submitted.

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