23 P

MMC-23P
THE 7TH MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019.
5th -7th April, 2019.
PETITION FILED UNDER Art.32 and Art.139A of Constitution of India.
BEFORE THE HON’BLE SUPREME COURT OF INDIA
IN THE MATTER OF
VAIBHAV DIXIT................................................................................[PETITIONER NO. 1]
v.
FUNBOOK..........................................................................................[RESPONDENT NO.1]
UNION OF INDIA.............................................................................[RESPONDENT NO.2]
[WP No. __ of 2019 under Art.32 of COI]
With
VAIBHAV DIXIT................................................................................[PETITIONER NO. 1]
v.
THE PEOPLE....................................................................................[RESPONDENT NO.3]
[Transfer Petition No. __ of 2019 under Art.139A of COI]
With
SYLVIA................................................................................................[PETITIONER NO. 2]
v.
UNION OF INDIA............................................................................[RESPONDENT NO. 2]
[WP No. __ of 2019 under Art.32 of COI]
ON SUBMISSION TO REGISTRY OF THE SUPREME COURT OF INDIA
MEMORIAL FOR THE PETITONERS

TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................................ 1
INDEX OF AUTHORITIES ................................................................................................... 2
LIST OF ABBREVIATIONS ................................................................................................. 9
STATEMENT OF JURISDICTION .................................................................................... 10
QUESTIONS PRESENTED ................................................................................................. 11
STATEMENT OF FACTS .................................................................................................... 12
SUMMARY OF ARGUMENTS ........................................................................................... 14
ARGUMENTS ADVANCED ................................................................................................ 15
PRAYER FOR RELIEF........................................................................................................ 31
MEMORIAL ON BEHALF OF THE PETITIONER 1

INDEX OF AUTHORITIES
TABLE OF CASES
SR. NAME OF THE CASE CITATION PAGE

NO. NUMBER
1. {Name Redacted} v. The Registrar General Crl.P. No. 1599/2015 37
2. A. Raja v. P. Srinivasan AIR 2010 Mad. 77
3. A.K. Kraipak v. Union of India AIR 1970 SC 150 19
4. Anju Varghese v. State of Kerala Crl. MC No.5247 of 36

2017
5. Bandhu Mukti Morcha v. Union of India 1984 AIR 802, 1984 28

SCR (2) 67
6. Bennett Coleman v. Union of India 1973 AIR 106, 1973 32

SCR (2) 757
7. Bhupinder Sharma v. State of Himachal Pradesh (2003) 8 SCC 551 43
8. Board of Trustees v. Dilip 1983 AIR 109, 1983 28

SCR (1) 828
9. Central Board of Secondary Education v. Aditya AIR 2011 SCW 4888 31

Bandopadhyay
10. Chairman Railway Board v. Chandrima Das AIR 2000 SC 998 33

11. Confederation of Ex- Servicemen Assosciation v. (2006) 8 SCC 399 36
Union of India
12. Corlie Mullin v. Administrator and Union Territory 1981 AIR 746, 1981 28
of Delhi SCR (2) 516
13. Deep Chand v. State of UP AIR 1959 SC 648 19
14. District Registrar and Collector v. Canara Bank (2005) 1 SCC 496 16, 35
15. Douglas v. Hello! Ltd (2001) Qb 967 (U.K) 14
16. Francis Coralie Mullin v. W.C. Khambra AIR 2013SC 2569 36
17. Francis Coralie v. U.T. of Delhi 1981 AIR 746, 1981 27, 36
SCR (2) 516
18. Google Spain SL. v. Agencia Española de [2014] EUECJ C- 20

Protección de Datos, 131/12 (Europe).
19. Govinda v. State of M.P (1975) 3 SCR 946 13
20. Griswols v. Connection Cut (1965) 381 US 13

497(USA)
21. Hukum Chand Shyam Lal v. UOI AIR 1976 SC 789 20
22. Justice KS Puttaswamy (Retd) and Anr v. Union of [2017] 10 SCC 1 14

India And Ors

23. Karmanya Singh Sareen and Anr v. Union of India W.P.(C) 7663/2016 & 24
And Ors C.M.No.31553/2016
24. Kartar Singh v. State of Punjab (1994) 3 SCC 569 24
25. Kharak Singh v. State of U.P. AIR 1963 SC 1295. 13, 20
26. Khushwant Singh v. Maneka Gandhi AIR 2002 Del 58 30
27. Louis De RAedt. V. Union of India AIR 1991 SC 1886 33
28. M. P. Sharma And Ors. v. Satish Chandra AIR 1954 SC 300 13
29. M.C. Mehta v. Union of India AIR 1999 SC 2583 17
30. M/s. Akshya Creations v. V. Muthulakshmi AIR 2013 Mad. 125 36
31. Maneka Gandhi v. Union of India AIR 1978 SC 597 17
32. Munn v. Illinois 94 U.S. 113 (1876) 27
33. N.H.R.C v. State of Arunachal Pradesh AIR 1996 SC 1234 33
34. Nipun Saxena & Anr. v. UOI W.P. (C) No. 568 of 35
2012
35. Oliga Tellis v. Bombay Municipal Corporation and 1985 SCC (3) 545 28
others

36. Om Prakash Chautala v. Kanwar Bhan AIR 2014 SC 1220 28
37. P.Nalla Thampi v. Union of India AIR 1985 SC 1133 29
38. People‘s Union for Civil Liberties (PUCL) v. Union (2004) 9 SCC 580 24
of India
39. PUCL v. U.O.I AIR 1997 SC 568 13
40. R Rajagopal v. State of Tamil Nadu 1995 AIR 264 35
41. S.C. Chaudhary v. State of Tripura AIR 2004 Gau.1 33
42. Sarjubhaiya Mathurbhaiya Kahar v. Deputy 1984 CriLJ 1474, 20

Commissioner of Police (1984)
43. Sri Vasunatahn v. The Registrar General W.P. No. 62038/2016 21
44. State of Bihar v. Lal Krishna Advani (2003) 8 SCC 1 36
45. State of Karnataka v. Puttaraja AIR 1961 SC 946 35
46. State of Maharashtra v. Public Concern for (2007) 3 SCC 587 28

Governance Trust
47. State of Maharashtra v. R.J. Gandhi AIR 1997 SC 3986 24
48. Subramanian Swamy v. Union of India (2016) 7 SCC 221 : 28

2016 Cri U 3214: AIR
2016 SC 2728
49. Sukhwant Singh v. State of Punjab (2009) 7 SCC 599 36

50. The Queen v. Brandon Roy Dyment (1988) 2 SCR 417 26
(U.K.)
51. Umesh Kumar v. State of Andhra Pradesh (2013) 10 SCC 591 36
52. Umesh Kumar v. State of U.P. (2013) 10 SCC 591 28
53. Union of India v. Tulsiram Patel AIR 1985 SC 1416 17
54. Unique Identification Authority of India and Anr. v. Special Leave to 22

Central Bureau of Investigation Appeal (CRL)
No(S).2524/2014.
55. Unni Krishnnan J.P. and Others v. State of A.P. and AIR 1993 SC 2178 27
Ors.
56. V.V. Anvekar v. State of Karnataka AIR 2013 SC 329 36
57. Vishywanth Aggarwal v. Sarla Vishwanath AIR 2012 SC 2586 28

Aggarwwal
BOOKS REFERRED
 BOOKS ON CONSTITUTIONAL LAW
1. Arvind P. Datar, Datar on Constitution of India, Wadhwa & Company (2001).
2. Dr. J. N. Pandey, Constitutional Law of India , Cent. Law Agency (2005).
3. Dr. Subhash C. Kashyap, Constitutional Law of India, Allahabad Law Agency (2014).
4. Durga Das Basu, Indian Constitutional Law, Kamal Law House Kolkata (2011).
5. H.K. Saharay, The Constitution Of India: An Analytical Approach, Oxford Publishing
(2012).

6. M.P. Jain, Indian Constitutional Law, Lexis Nexis (2015).
7. M. P. Jain and S. N. Jain, Principles of Administrative Law, Wadhwa Law Agency
(2007).
8. Narendra Kumar, Constitutional Law of India , Allahabad Law Agency (2015).
 BOOKS ON INFORMATION TECHNOLOGY LAWS
1. Anirudh Rastogi, Cyber Law, Lexis Nexis (2014).
2. Dr. Sarla Gupta (Agrawal) and Beniprasad Agrawal, Cyber Laws, (2008).
3. Mehdi Khosrow, Encyclopedia of Information Technology, Atl. Publishers &
Distributors (P) Ltd. (2007).
DICTIONARIES REFERRED
1. Bryan A. Garner, Black’s Law Dictionary (8th Ed. 2001).
2. Oxford English Dictionary (2nd Ed. 2009).
3. Webster’s New International Dictionary.
STATUTES REFERRED
1. Constitution of India, 1950.
2. Code of Criminal Procedure, 1973.
3. Information Technology Act, 2000.
4. Indian Penal Code, 1860.
5. Unlawful Activities (Prevention) Act, 1967.
WEBSITES REFERRED
1. www.eugdpr.org
2. www.lawctopus.com

3. www.legalserviceindia.com
4. www.planningcommission.nic.in
5. www.meity.gov.in
6. www.scconline.com
7. www.manupatra.com
ARTICLES
1. Suhail Nathani, Managing Partner, Economic Laws Practice ELP Discussion Paper
On B N Srikrishna Report, Dec 2017.
2. Michael, M. G. Michael, Katina, Uberveillance And The Social Implications Of

Microchip Implants: Emerging Technologies, Dec. 5 2017.
3. Courtney Bowman, Data Localization Laws: An Emerging Global Trend, Jurist

Journal, Jan. 6, 2016.
4. Anupam Chander, Breaking The Web: Data Localisation Vs. The Global Internet, UC
Davis Legal Studies Research Paper No. 378, Apr. 11, 2014.
5. Andrew Keane Woods, Against Data Exceptionalism, 68(4) Stanford Law Review,
Apr. 6, 2016.
6. Aroon Deep, Draft National E-Commerce Policy: Data Localisation and Priority To
Domestic Companies, Medianama Journal, Aug.7, 2018.

LIST OF ABBBREVAITIONS
 AI: Artificial Intelligence.
 ALRC Australian Law Reform Commission: ALRC Report For Your Information:
Australian Privacy Law and Practice (Australian Law Reform Commission Report
108).
 Competition Act: Competition Act, 2002.
 Contract Act: The Indian Contract Act, 1872.
 CVC: Central Vigilance Commission.
 EU: European Union.
 EU GDPR: European Union General Data Protection Regulation.
 FIPP: Fair Information Practice Principles.
 IT Act: Information Technology Act, 2000.
 OECD: Organisation for Economic Cooperation and Development.
 RBI: Reserve Bank of India.
 COI: Constitution of India, 1951.

 RTI Act: Right to Information Act, 2005.
 CJEU: Court of Justice of the European Union.
 SPD Rules: Information Technology (Reasonable Security Practices and Procedures

and Sensitive Personal Data or Information) Rules, 2011.
 Telegraph Act: The Indian Telegraph Act, 1885.

STATEMENT OF JURISDICTION
The Petitioner in first petition invokes the jurisdiction of Hon’ble Supreme Court of scindia
under Art.32 of Constitution of India.
The Petitioner in second petition invokes the jurisdiction of Hon’ble Supreme Court of
scindia under Art.139A of Constitution of India.
The Petitioner3 in third petition invokes the jurisdiction of Hon’ble Supreme Court of India
under Art.32 of Constitution of India.
The three petitions have been clubbed by the Hon’ble Supreme Court of India under order V,
Rule 2(40) of Supreme Court Rules, 2013.
The counsel for the petitioners most humbly submits this memorandum for the petition filed
before the Hon’ble Court.

QUESTIONS PRESENTED
…………………………………………ISSUE I….…………………………………………
Whether Fundamental Right to Privacy of Vaibhav Dixit has been violated by the act of
Funbook; and,
………………………………………..ISSUE II………………………………………….
Whether the existence of news in public domain in digital form relating to alleged rape case
whose judgement has been overturned by High Court is a violation of Vaibhav Dixit’s rights
guaranteed under COI ; and,
……………………………………………..ISSUE III………………………………………..
Whether disclosure of Sylvia’s identity by the search engines in relation to an alleged rape
case is a violation of safeguards provided to her by the laws of the Republic of Scindia.

STATEMENT OF FACTS
……………………………….HISTORICAL BACKGROUND……………………………
The Republic of Scindia is the second most populous nation situated in South East Asia that
had formerly been under the British colonial rule and won independence after a long struggle.
It is primarily a nation based on the principles of democracy, secularism and socialism in its
Constitution. It is known for its unique heritage and basic principles of “unity in diversity”.
……………....PRESENCE OF FUNBOOOK IN THE COUNTRY……………………
Funbook is a popular social networking website based in France with one of its branch
offices in Dehri. Every user of Funbook is required to have an account which can be created
by entering the personal details of the users. Mr. Vaibhav Dixit, a resident of Dehri and a
business tycoon was suspected to be involved in offence relating to tax evasion and
laundering money in France. In the year 2007, Mr. Vaibhav Dixit made his account on
Funbook. While making his account, he mentioned his personal details. Next year, he
installed the mobile version and gave permissions to access the gallery of the smartphone
without which it could not be opened.
.……DISPUTE REGARDING SHARING OF PERSONAL DATA BY FUNBOOK…….
Mr. Dixit lost interest in Funbook so, on Nov.7, 2017, he made a request to delete his account
and his account was deleted on November 14, 2017. The investigative agencies approached
Funbook in connection with his involvement. On November 16, 2017, Funbook shared his
personal data with them including screenshots of the chats which was stored in the gallery.
Mr. Dixit infuriated by this approached the Supreme Court of Scindia, contending that his
Fundamental Right to Privacy has been violated by Funbook. Mr. Vaibhav Dixit also raised
his concern regarding the non-existence of any law on this point and constitutional validity of
(Intermediary Guidelines) Rules, 2011.

...DISPUTE REGARDING ONLINE ARTICLE OF OVERTURNED JUDGEMENT...
Ms. Sylvia, a resident of France on her visit to the Republic of Scindia met Mr. Dixit at hotel,
there they got intimate with each other. She lodged an FIR against Mr. Dixit for committing
the offence of rape. The Trial court found Mr. Dixit guilty and convicted him. All the leading
newspapers in the country including “The People” published this matter. Mr. Vaibhav Dixit
preferred an appeal to the High Court of Dehri and it acquitted him of all the charges.
Meanwhile, Mr. Vaibhav Dixit found the matter relating to the findings of the Trial Court
still existing on the e-newspaper portal. He approached the High Court of Dehri contending
that existing news available in the public domain in digital form relating to the alleged rape
case whose judgment has now been overturned by the High Court is a violation of his
Constitutional rights.
….DISPUTE ON ANNOYMITY OF RAPE VICTIMS IN REPUBLIC OF SCINIDA….
Ms. Sylvia while searching on the internet observed that as soon as she typed her name, many
web links relating to her case instituted against Mr. Dixit popped up and any man of ordinary
prudence could easily identify her from the webpages. Keeping her reputation, dignity and
future marriage prospects in mind, she approached the Supreme Court of Scindia contending
that disclosure of her identity by the search engines is violation of legal safeguards.
……………………………CLUBBING OF ALL THE PETITIONS………..…………….
All the matter were pending before the respective courts when the Supreme Court finding the
issues pertaining to same question of law i.e. “Right to erasure and Right to be forgotten” in
all the three petitions on an application by the petitioners clubbed the petitions and listed it
for preliminary hearing before a full bench of the Supreme Court of Scindia.

SUMMARY OF ARGUMENTS
I.
The petitioners most humbly submit before the Hon’ble Court that sharing of personal data of
Mr. Vaibhav Dixit by Funbook with the investigating agencies of the Republic of Scindia is
violative of his Right to Privacy. The issue will be tested against right to privacy as a
fundamental right and right to be forgotten as an aspect of right to privacy. The intermediary
Guidelines abridges Art.21 and Art.14 of COI. Intermediary Guidelines include no limits on
the scope of disclosures that the government agencies can demand or expect to retain, in
contravention of Article 21. It is most humbly submitted that the second fold of argument
deals with Right to be forgotten as an aspect of Right to Privacy. The Hon’ble Supreme Court
in its landmark judgment gave ‘right to privacy’ the stature of a fundamental right under the
Constitution and further observed that informational privacy is a facet of the right to privacy.
II.
The petitioners most humbly submit before the Hon’ble Court that existence of trial court
judgment in public domain in digital form after High Court overturned the judgment of
alleged rape is against the right to dignity and right to be forgotten of Mr. Vaibhav Dixit. The
issue will be tested against right to dignity and reputation as a fundamental right and right to
be forgotten as an aspect of Article 21 of the Constitution. It is not necessary that the right in
question is expressly stated as a fundamental right in question is expressly stated as a
fundamental right in Part III. A new right can be read and inferred from rights stated in part
III. As a consequence, citizens are to be protected against violation of right to dignity and
reputation.
III.
It is most humbly submitted that through the disclosure of identity of prosecutrix, in the
instant case Ms. Sylvia, the search engines have acted to detrimental to the interests of
Petitoner2 as they have acted against the lawful safeguards guaranteed under the laws and
COI. Due to the unlawfulness of their act, they are obligated to erase the information from the
digital platform

ARGUMENTS ADVANCED
[ISSUE I]: FUNDAMENTAL RIGHT TO PRIVACY OF VAIBHAV DIXIT HAS

BEEN VIOLATED BY THE ACT OF FUNBOOK.
¶1. The petitioners most humbly submit before the Hon’ble Court that sharing of personal
data of Mr. Vaibhav Dixit by Funbook with the investigating agencies of the Republic of
Scindia is violative of his Right to Privacy. The issue will be tested against right to privacy as
a fundamental right and right to be forgotten as an aspect of right to privacy.
A. RIGHT TO PRIVACY OF VAIBHAV DIXIT HAS BEEN VIOLATED .
¶2. It is most humbly contended that in the present case, two aspects are to be kept in
mind that are the integrity of information being shared by funbook with investigating
agencies and the pervasive invasion of fundamental rights, in the view of the privacy
concerns, the personal autonomy of an individual over their body and their presence over
internet.
¶3. The constitution does not grant in specific and express terms right to privacy as a
fundamental right in the constitution. However, such a right has been called by the Supreme
Court from Article 21 and other provisions of the constitution read with directive principle of
state policy.1 Recently, Apex Court overruled MP Sharma case2 and Kharak Singh case3 to
the extent that they held that right to privacy is not protected by the constitution stands over-
ruled. It is most humbly submitted that in the case of PUCL v. U.O.I4 the Supreme Court
held right to privacy is part of right to life and personal liberty enshrined under Article 21.
Thus, right to privacy is an intrinsic part of the right to life and personal liberty under article
21 of the constitution.5
(i) Informational privacy has been abridged.

¶4. Fundamental right to privacy6 covers the following aspects:
1
M P JAIN, INDIAN CONSTITUTIONAL LAW 1219 (Lexis Nexis, 8th ed. 2018).
2
M. P. Sharma And Ors. v. Satish Chandra, AIR 1954 SC 300.
3
Kharak Singh v. The State of U. P, AIR 1963 SC 1295.
4
PUCL v. U.O.I, AIR 1997 SC 568, Govinda v. State of M.P., (1975) 3 SCR 946; Griswols v. Connection Cut,
(1965) 381 US 497 (USA).
5
Justice KS Puttaswamy (Retd) and Anr v. Union of India And Ors, [2017] 10 SCC 1.
6
Ibid.

• Privacy that involves the person i.e. when there is some invasion by the State of a person’s
rights relatable to his physical body, such as the right to move freely;
• Informational privacy which does not deal with a person’s body but deals with a person’s
mind, and therefore recognizes that an individual may have control over the dissemination of
material that is personal to him. Unauthorized use of such information may, therefore lead to
infringement of this right; and
• The privacy of choice, which protects an individual’s autonomy over fundamental personal
choices.
¶5. It is most humbly contended that in the present case, the data of Mr. Dixit and the
conversation of him with Ms. Sylvia over the Funbook fall under Informational Privacy as
defined in the Puttaswamy judgment. Mr. Dixit has right to choose what information and to
what extent the same can shared. Concept of privacy is the accord recognition of the fact that
the law must protect not only those people whose trust has been abused but those who simply
7
find themselves subjected to an unwanted intrusion into their personal lives. The
conversation between the two in the present case is in the sphere of personal life where a
reasonable man expects privacy and no state of surveillance or interference.
(ii)Test for invasion of Fundamental Right to Privacy has not been met.
¶6. There exists fourfold test for invasion of privacy8:
 Legitimate Goal: The law should seek to achieve a legitimate state aim.
 Proportionality: There should be a rational nexus between the objects and the means
adopted to achieve them.
 Legality: Existence of law.
 Procedural Guarantees: To check against the abuse of State interference.
¶7. In the present case, the collection of data by investigating agencies fails under the test
of procedural safeguards. It is humbly submitted that Test of Proportionality means that there
should be a rational nexus between the objects and the means adopted to achieve them9. The
extent of interference must be proportionate to its need10.
¶8. Any interference with an individual’s right to privacy must be “in accordance with the
law”11. Requisite safeguards are a threshold consideration for lawfulness and are the “only
7
Douglas v. Hello! Ltd, (2001) Qb 967 (U.K).
8
Ibid.
9
supra note 5.
10
Ibid.
11
ECHR art 8; Huvig (n 115) [26]; Malone (n 116) [67]; Kruslin (n 116) [27]; Amann (n 115) [49]; Association
(n 116) [64]; Consideration of Reports (n 116) [21].

decisive” consideration for determining if the action is lawful. It is humbly contended that in
present case, there are no procedural guarantees except for IT Act, 2000 and its subsequent
rules for intermediary. These are not sufficient as they themselves do not pass the test of
constitutionality under Part III of the constitution.
B. Intermediary Guidelines are unconstitutional.
¶9. The intermediary Guidelines abridges Art.21 and Art.14 of COI. Intermediary
Guidelines include no limits on the scope of disclosures that the government agencies can
demand or expect to retain, in contravention of Article 21.
(i) It abridges Art.21 of COI.
¶10. Specifically, Rule 3(4)12, which requires data retention for a statutory minimum of
ninety days of content taken down as well as “associated records”, violates users’ rights to
privacy. In addition to the financial and technical burden (in storing and securing data)
imposed by the Intermediary Guidelines in requiring potentially unlimited data retention by
intermediaries, there is no clarity as to what or how much information precisely must be held
in the form of “associated records”. Instead of subjecting data to limited and closely qualified
retention by private intermediaries, and thus limiting the impairment of the fundamental right
to privacy to the minimum possible degree necessary, Rule 3 (4) imposes blanket data
retention requirements.
¶11. Also, an individual’s privacy interests in information relating to him are not
dissolved merely because information is not confidential or because another entity has some
property interest in that information. The Supreme Court has recognized that even where the
search of private documents was concerned, Article 21 protected “persons not places”, i.e.,
that the privacy interest did not vest in property or communications but, rather, in the rights
holder himself.13
¶12. Further, Rule 3(7)14, which makes any information held by an intermediary subject to
being disclosed to the government upon request, is also inconsistent with the requirement that
the right to life and personal liberty be violated only in accordance with fair, just and
12
The Information Technology (Intermediary Guidelines) Rules, 2011, Gazette of India, pt. II sec. 3(i) (Apr.
11th, 2011).
13
District Registrar and Collector, Hyderabad v. Canara Bank, (2005)1 SCC 496.
14
supra note 12.

reasonable procedures. Notwithstanding that Rule 3(7) is consistent with Section 67C15 of the
IT Act and specific rules framed in regard to the surveillance of communications, it is also
unconstitutional because it fails to include any safeguards whatsoever in the process of
surveillance. These would include, as minimum obligatory conditions in light of PUCL16, the
requirement that the person under surveillance be informed of the surveillance.
¶13. Article 21 explicitly includes a due process guarantee. This means that the right to
life and personal liberty, and its constituent rights, can be interfered with only through
constitutionally consistent procedures. A cornerstone of fair procedure, compliant with the
rule of law, is the notion of natural justice. Consequently, Article 21 contemplates that the
procedure by which fundamental rights are curtailed will satisfy natural justice principles.
¶14. The Supreme Court has held that natural justice was not a rigid or mechanical term,
but one that referred to those practices and principles that would ensure “fair play in
action”.17 All deviations from natural justice requirements must be supported by a sufficiently
justificatory “compelling state interest”. Specifically, in Union of India v. Tulsiram Patel18,
the Supreme Court held that the principle of natural justice required the satisfaction of the
audi alteram partem rule, which consisted of several requirements, including the requirement
that a person against whose detriment an action is taken be informed of the case against him
and be afforded a full and fair opportunity to respond.
¶15. By requiring that content be taken down swiftly (within 36 hours of complaint, under
Rule 3 (4) and by failing to require the author of the content to be informed of the complaint
and its contents, the Intermediary Guidelines violate the author’s right to notice and
consequently affect his/her right to prepare and present a defence at all. In M.C. Mehta v.
Union of India19 the Supreme Court held that the absence of due notice and a reasonable
opportunity to respond would vitiate any holding to the rights holder’s detriment. In practice,
authors of content which is the subject of a complaint may never know of the complaint or
even of the fact of the take down, given the absence of any mechanism under the rules by
which they could have been informed. In a scheme for silent, invisible censorship, authors are
never afforded an opportunity to challenge the take down, just as they have no opportunity to
rebut the initial complaint.
15
The Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India).
16
supra note 4.
17
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
18
Union of India v. Tulsiram Patel, AIR 1985 SC 1416.
19
M.C. Mehta v. Union of India, AIR 1999 SC 2583.

(ii) Intermediary guidelines are in violation of Art.14 of COI.
The Intermediary Guidelines contravene Article 14 on the following grounds:
¶16. First, intermediaries who are not similarly situated are treated alike. Rule 2(i)20
imports the IT Act’s omnibus definition of the term “intermediary”, such that all classes of
intermediaries, ranging from intermediaries which control the architecture of the internet and
the hardware which enables it to run (such as ISPs and DNS providers) to intermediaries that
enable content creation, sharing and communications online (such as email clients, content
aggregators, social networking services and content hosts), are empowered to censor and are
required to comply with complaints regarding content. Intermediaries, for the purposes of the
IT Act and the Intermediary Guidelines, thus refer to a large and disparate group of providers
of services enabling access to as well as use of the Internet. Reasoned state action must
recognize that their liabilities must necessarily vary with the specific type of service that each
provides. The Intermediary Guidelines fail to do so, and are consequently incompatible with
Article 14.
¶17. Secondly, the Intermediary Guidelines fail to account for the public interest because
they directly restrict the public’s freedom of speech and expression, without any justifiable
reason, and privilege the personal and not necessarily constitutional sensitivities of private
complainants instead. Rule 3(3) in effect vests an extraordinary power of censorship in
intermediaries, entities which operate on the basis of private interest and outside the limits of
administrative or even the most basic human rights control. Safeguards must apply to power-
bearers to the degree and in the manner required in relation to the nature of the power, rather
than its holder, if fundamental rights are to be legislatively preserved. While the Supreme
Court in A.K. Kraipak v. Union of India21 extended the applicability of natural justice
principles from judicial bodies alone and quasi-judicial bodies to administrative bodies as
well, the applicability of such principles still remains limited to state entities. In other words,
there is an acknowledged difficulty in applying public law standards to private, commercial
entities. Thus, the Intermediary Guidelines the right to abridge core fundamental rights under
Articles 14 and 21 in private delegates operating outside public law controls that constrain the
scope in which the power can be exercised and ensure that citizen interest can be preserved.
In the alternative, they also failed to provide for other safeguards to prevent abuse to the
detriment of fundamental rights private delegates of governmental power, even as they
20
supra note 12.
21
A.K. Kraipak v. Union of India, AIR 1970 SC 150.

granted such powers in unlimited terms. As a result, the Intermediary Guidelines evidence
arbitrary, unreasoned and unjust state action.
¶18. Thus, in pursuance of Art.13(2) of COI, the intermediary guidelines are liable to be
set aside. An act of the State, whether legislative or executive, if inconsistent with a
fundamental right, is declared to be null and void.22 The nullity of such an act does not rest
upon judicial pronouncement, but upon the express provision contained in Article 13. 23 Thus,
Intermediary guidelines are void ab initio.24
(iii) It abridges Art. 19(1)(a) of COI.
It has been held by Apex court of the country, that talking on telephone amounts to exercise
by the individual of his right to freedom of speech and expression protected by Art. 19(1)(a).
This freedom means the right to express one’s views, convictions and opinions freely by
word of mouth, writing, printing, picture, or in any other manner. When a person is
exercising his right to freedom of speech and expression. This, means telephone tapping
would infract Art. 19(1)(a).25 However, telephone tapping has been allowed only in reference
to section 5(2) of Telegraph Act, whereby the procedure is fair, just and reasonable. A
valuable constitutional right can be canalized only by civilized process.26
Thus, Intermediary guidelines are clearly in violation with Art. 19(1)(a) of COI and as no
clear procedure has been laid down it cannot infract Art. 19(1)(a) of COI.
C. Right to be forgotten has been abridged.
¶19. It is most humbly submitted that the second fold of argument deals with Right to be
forgotten as an aspect of Right to Privacy. The Hon’ble Supreme Court in its landmark
judgment27 gave ‘right to privacy’ the stature of a fundamental right under the Constitution
and further observed that informational privacy is a facet of the right to privacy.
(i) Right to be forgotten must be recognized.
¶20. The term “personal liberty” is used in the Article as a compendious term to include
within itself all the varieties of the rights which go to make up the “personal liberties” of amn
22
INDIA CONST. Art.13, cl. 2.
23
NARENDER KUMAR, CONSTITUTIONAL LAW OF INDIA 79 (10th ed. 2018).
24
Deep Chand v. State of UP, AIR 1959 SC 648.
25
Hukum Chand Shyam Lal v. UOI, AIR 1976 SC 789.
26
Sarjubhaiya Mathurbhaiya Kahar v. Deputy Commissioner of Police, 1984 CriLJ 1474, (1984).
27
supra note 5.

other than those dealt with under Art. 19(1).28 In the advent era of judicial activism and with
the growth and development of technology, more information is now easily available. So it is
necessary to protect the access of information which an individual does not want to give.
Hence, CJEU jumpstarted Europe’s recognition of the right to be forgotten by reading right to
be forgotten into the Data Protection Directive.29 There are different circumstances30 under
which individuals can exercise the right to be forgotten and one such circumstance is that if
the data is processed on a claim that its processing is based on public or legitimate interests,
then, the data subject has the right to object31 to such processing of data and can ask for its
erasure. In a 2007 paper, Viktor Mayer-Schöenberger pioneered the idea of memory and
forgetting for the digital age32. He proposed that all forms of personal data should have an
additional Meta data of expiration date to switch the default from information existing
endlessly to having a temporal limit after which it is deleted.
¶21. It has been recognized by Supreme Court of India33, Justice Sanjay Kishan Kaul has
also identified the right to be forgotten under the umbrella of informational privacy34. Justice
Kaul has alluded to the need for “right to be forgotten”. He has also suggested that EU law
may be a useful guidance. Later on Karnataka High Court35 has recognized and upheld
individual’s right to be forgotten. It has also been laid down by Committee of Experts under
the Chairmanship of Justice B.N. Srikrishna.
¶22. The data principal shall have the right to restrict or prevent continuing disclosure of
personal data by a data fiduciary related to the data principal where such disclosure—
(a) has served the purpose for which it was made or is no longer necessary
b) was made on the basis of consent under section 12 and such consent has since been
withdrawn; or
28
Kharak Singh v. State of U.P., AIR 1963 SC 1295.
29
Google Spain SL. v. Agencia Española de Protección de Datos, [2014] EUECJ C-131/12 (Europe).
30
General Data Protection Regulation 2016/679 (EU) art. 17.
31
General Data Protection Regulation 2016/679 (EU) art. 21.
32
Mayer Schoenberger, Useful Void: The Art of Forgetting in the Age of Ubiquitous Computing, SSRN (Apr.
2007), https://ssrn.com/abstract=976541.
33
supra note 5.
34
Ibid.
35
Sri Vasunatahn v. The Registrar General, W.P. No. 62038/2016.

(c) was made contrary to the provisions of this Act or any other law made by Parliament or
any State Legislature.36
In the instant case, there existed a right to be forgotten on account of withdrawal of consent.
(ii) Non consensual processing has taken place.
The White Paper considered consent as a ground for the collection of personal data.37
However, it was recognised that in practice, since consent could be used to disclaim liability,
¶23. Consent has been viewed as an expression of a person‘s autonomy or control, which
has the consequence of allowing another person to legally disclaim liability for acts which
have been consented to.38 It has been recognized as an important facet to justify processing of
personal data. 39 The validity and meaningfulness of consent be carefully determined.40 It was
felt that consent should be freely given, informed and specific to the processing of personal
data.41
¶24. In the instant case, the consent was neither freely given nor was it specific to alleged
processing and processing of personal information has been done after the consent had been
withdrawn by Petitioner1.
¶25. Firstly, in the instant case, free consent of petitioner was not taken. A preponderance
of evidence points to the fact that the operation of notice and consent on the internet today is
broken.42 Consent forms are complex and often boilerplate. Consequently, individuals do not
read them; even if they attempt to, they might not understand them; even if they understand
them, provisions to give meaningful consent in a granular fashion are absent.43 consumer
36
The Personal Data Protection Bill, §27, 2018
37
White Paper of the Committee of Experts on a Data Protection Framework for India 83,
http://meaty.gov.in/writeradddata/files/white_paper_on_data_protection_in_india_18122017_final_v2.1.
38
Adam Moore, Toward Informational Privacy Rights, 44 San Diego Law Review 812; Anita L. Allen, Why
privacy isn‘t everything: Feminist reflections on personal accountability, Rowman & Littlefield 115-16; JOHN
KLEINIG, THE NATURE OF CONSENT IN THE ETHICS OF CONSENT- THEORY AND PRACTICE 4 (Alan Wertheimer
and Franklin Miller, Oxford University Press, 2009).
39
Unique Identification Authority of India and Anr. v. Central Bureau of Investigation, Special Leave to Appeal
(CRL) No(S).2524/2014.
40
supra note 34.
41
Id.
42
Ryan M. Calo, Against Notice Skepticism in Privacy (and Elsewhere), 87 Notre Dame Law Review p.1031
(2012); Reidenberg et al, Privacy Harms and the Effectiveness of the Notice and Choice Framework, 11 Journal
of Law and Policy for the Information Society (2015); Florian Schaub et al, A design space for effective Privacy
Notices (Symposium on usable privacy and security, 2(2015); LF Cranor, Necessary but not sufficient:
Standardized mechanisms for privacy notice and choice, 10 Journal on Telecommunications and High
Technology Law, 273 (2012).
43
See B. W. Schermer et al, The crisis of consent: how stronger legal protection may lead to weaker consent in
data protection, 16(2) Ethics and Information Technology (2014).

contracts (of which online contracts are a manifestation) share no significant similarities with
contracts per se- only one party sets the terms, with no opportunity for the other party to
negotiate such terms; further, there is no ‘bargain, agreement, dicker, process, mutability,
becoming‘ 44
which are standard features of contracts. These contracts of adhesion‘ are not
based on informed consent or mutual common understanding.45 Thus, even the preliminary
consent is not free consent.
¶26. Secondly, Consent is contingent on the purposes for which processing of personal data
is sought. Where there are changes in such purposes or other relevant circumstances, the
giving of such a sweeping consent would no more be adequate. If personal data is used for
other purposes, then fresh consent must be sought. The data principal cannot be compelled
through private law remedies to part with their personal data or go along with processing of
personal data that has already been collected.46 Consent needs to be capable of being
withdrawn as easily as it was given.47 Even though contracts may not ordinarily envisage
unilateral withdrawal, such withdrawals will be permitted in the context of personal data. The
data principal will have the freedom to select which specific parts of their consent they would
like to withdraw. In the present case, Mr. Vaibhav Dixit withdrew his consent and asked
funbook to delete his account.
¶27. In this context we may refer to the case of Karmanya Singh Sareen and Anr vs Union
of India And Ors48 it was held by the Hon’ble High Court of Delhi in a public interest
litigation in relation to WhatsApp Inc.’s new privacy policy that allows for the sharing of
users’ data with Facebook, Inc., for advertising and marketing purposes. The High Court
ordered WhatsApp to delete users’ data completely from its servers and refrain from sharing
users’ data with Facebook, provided that the users requested the deletion of their WhatsApp
account before 25 September 2016, the date on which the users were asked to agree to the
new terms, and prohibited WhatsApp from sharing existing users’ data dated before 25
September 2016.
44
Arthur A. Leff, Contract As Thing, 19(2) American University Law Review, 147 (1970).
45
Andrew Robertson, The limits of voluntariness in contract, 29(1) Melbourne University Law Review, 179
(2005).
46
Committee of Experts under the Chairmanship of Justice B.N. Srikrishna, A Free and Fair Digital Economy
ProtectingPrivacy,EmpoweringIndians,(July27,2018),
https://www.thehinducentre.com/resources/article24561547.ece/binary/Data_Protection_Committee_Report-
comp.
47
General Data Protection Regulation 2016/679 (EU) Recital42.
48
Karmanya Singh Sareen and Anr vs Union of India And Ors ,W.P.(C) 7663/2016 & C.M.No.31553/2016.

¶28. Thus, Petitioner1 had inalienable right to withdraw his consent and by getting his
account deactivated he explicitly withdrew his consent. Funbook was obligated to take a fresh
consent for the alleged processing.
(iii) The case fails to fall under exemptions to non consensual processing.
¶29. It is nobody‘s case that processing for national security is an illegitimate state
interest; it undoubtedly is legitimate, and has been recognised by the Supreme Court of India
as such.49 The key question is what safeguards can be instituted to ensure that the use of this
ground is restricted to genuine cases of threats to national security. There is no general law in
India today that authorises non-consensual access to personal data or interception of personal
communication for the purposes of intelligence gathering or national security. If there are any
entities that are carrying out activities of such a nature without statutory authorisation (for
example, solely through executive authorisation), such activities would be illegal as per the
Puttaswamy judgment as they would not be operating under law. The Intelligence Services
(Powers and Regulation) Bill, 2011 had been introduced to regulate the manner of
functioning of Indian intelligence agencies and institute an oversight mechanism.50 However,
the Bill lapsed in 2011 and left the legislative vacuum unaddressed.
¶30. In such a case, the controller has to demonstrate that it has compelling legitimate
interest to process the data that override the data subject’s rights and freedoms.51 Thus, the
burden is on Respondents to establish that there existed compelling reasons to intrude in the
personal sphere of Petitioner1.
(iv) Funbook was obligated to erase the data.
¶31. The principle of storage limitation, which is closely connected to the principle of
purpose limitation, envisages that data should be stored by the fiduciary only for a time
period that is necessary to fulfil the purpose for which it was collected.52 An individual in
spite of any voluntary sharing of, or the disclosure of information would retain an expectation
of privacy.53 Once the purpose has been achieved, the data should be deleted or anonymised.
49
supra note 5, Kartar Singh v. State of Punjab, (1994) 3 SCC 569, People‘s Union for Civil Liberties (PUCL)
v. Union of India, (2004) 9 SCC 580.
50
Manish Tewari, State of the Union: Time for intelligence reforms?, DECCAN CHRONICLE, 19 March 2016,
https://www.deccanchronicle.com/opinion/op-ed/ 190316/state-of-the-union-time-for-intelligence-reforms.html.
51
supra note 43.
52
OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (2013),
http://www.oecd.org/sti/ieconomy/oecdguidelinesonprotectionnof
privacyandtransbounderflowsofpersonaldata.html.
53
District Registrar v. Canara Bank (2005) 1 SCC 496.

The rationale behind this is that once processing is over, control over the data may be lost,
since it is no longer of any interest to the data fiduciary, which may expose the data to the
risk of theft, unauthorised copying or the like.54
¶32. The key requirement is that once the object of processing has been achieved, the data,
if retained, should not be capable of identifying any individual.55 It cannot be imposed for
meeting obligations of law and processing for historical, statistical and research purposes.
However, in instant case no obligation of law existed on Funbook which could justify the
alleged act.
¶33. It is humbly submitted that notwithstanding any contractual relationship, an individual

expects that her personal data will be used fairly, in a manner that fulfills her interest and is
reasonably foreseeable. This is the hallmark of a fiduciary relationship.56 This right
recognises the fact that that all information about a person is fundamentally her own, and she
is free to communicate or retain it for herself.57
¶34. Thus, in light of the above mentioned laws, rules, procedures and cases cited the
counsel for petitioners most humbly submit before this Hon’ble Court that Funbook has
violated right to privacy and right to be forgotten, the two important aspects of Article 21 of
the constitution of Republic of Scindia.
54
Ibid.
55
comments in response to the White Paper submitted by Shivakumar Shankar, Managing Director of
LexisNexis Risk Solution, Jan. 30, 2018.
56
Tamar Frankel, Fiduciary Law, 71(3) California Law Review, 795 (1983).
57
The Queen v. Brandon Roy Dyment (1988) 2 SCR 417 (U.K.).

[ISSUE 2]: THE EXISTENCE OF NEWS IN PUBLIC DOMAIN IN DIGITAL FORM
RELATING TO ALLEGED RAPE CASE WHOSE JUDGEMENT HAS BEEN
OVERTURNED BY HIGH COURT IS A VIOLATION OF VAIBHAV DIXIT’S
RIGHTS GUARANTEED UNDER COI.
¶35. The petitioners most humbly submit before the Hon’ble Court that existence of trial
court judgment in public domain in digital form after High Court overturned the judgment of
alleged rape is against the right to dignity and right to be forgotten of Mr. Vaibhav Dixit. The
issue will be tested against right to dignity and reputation as a fundamental right and right to
be forgotten as an aspect of Article 21 of the Constitution.
A. Right to Dignity and Right to Reputation of Petitioner1 are being abridged.
¶36. It is not necessary that the right in question is expressly stated as a fundamental right
in question is expressly stated as a fundamental right in Part III. A new right can be read and
inferred from rights stated in part III. 58 As a consequence, citizens are to be protected against
violation of right to dignity and reputation.
(i) Right to dignity is being violated.
¶37. The Supreme Court gave a broad and liberal interpretation to the term life as used in
Article 21. In Munn v. Illinois59, J. Field spoke of the right to live as follows, “by the term
‘life’ as here used, something more is meant than sheer animal existence”. Supporting this
view, Justice Bhagwati, in Francis Coralie v. U.T. of Delhi60, observed that right to life
includes the right to live with human dignity and all that grows along with it.
¶38. COI uses the term ‘dignity’ in its preamble; the preamble reads as ‘assuring the
dignity of the individual and the unity and integrity of the nation. Dignity can be ensured
when every member of the society has a feeling that he or she is a respectable member and no
one can humiliate, harass, exploit and insult him or her. Supreme Court explained the
meaning of the world ‘Life’ in the case Board of Trustees v. Dilip61 that life does not merely
mean animal existence or a continued drudgery through life. The expression life has a much
wider meaning. Hence the apex court has interpreted Article 21 of constitution, that every
58
Unni Krishnnan J.P. and Others v. State of A.P. and Ors., AIR 1993 SC 2178.
59
Munn v. Illinois, 94 U.S. 113 (1876);Universal Declaration of Human Rights 1948 art.1.
60
Francis Coralie v. U.T. of Delhi, 1981 AIR 746, 1981 SCR (2) 516.
61
Board of Trustees v. Dilip, 1983 AIR 109, 1983 SCR (1) 828.

citizen is entitled to a life of dignity. The court has interpreted in such a way that, the right to
life includes a dignified life. 62
¶39. Thus, in the instant case the existence of information regarding the trial court
judgement which has been overruled is detrimental to the interests of Petitioner1 as it shall
prevent to live petitioner1 from living a dignified life.
(ii) Right to reputation is being violated.
¶40. Art. 21 implies a reasonable standard of comfort and decency.63 Reputation is an

important facet of one’s life. When reputation is hurt, “a man is half dead.” 64 The right to
reputation is a facet of right to life of a citizen under Article 21 of the Constitution as
established in case of State of Maharashtra v. Public Concern for Governance Trust65.
Recently, in the case of Subramanian Swamy v. Union of India66, the Supreme Court
observed that the reputation is an inextricable aspect of right to life under Article 21 of the
Constitution. It was further held that the right to free speech cannot mean that a citizen can
defame the other. Protection of reputation is a fundamental right.
¶41. It is most humbly contended that in the present case, Mr. Vaibhav Dixit is allegedly
charged with the offence of rape. The Trial Court holds him guilty whereas the High Court
acquits him of all the charges. “The People” followed the case in initial stage and posted
online on its e-portal the findings of the Trial Court. Later on, after the charges were dropped
against him, no updates were made regarding the case. The findings of Trial Court were
against the right of reputation once the charges were dropped against him.
¶42. Thus, it is most humbly submitted that the alleged act of Respondent3 has abridged
away the Petitioner1 right to reputation.
62
Oliga Tellis v. Bombay Municipal Corporation and others, 1985 SCC (3) 545; Corlie Mullin v. Administrator
and Union Territory of Delhi, 1981 AIR 746, 1981 SCR (2) 516; Bandhu Mukti Morcha v. Union of India, 1984
AIR 802, 1984 SCR (2) 67.
63
K.T. Shah’s “Note on Fundamental Rights” (Dec. 1946); II B. SHIVA RAO, THE FRAMING OF INDIA’S
CONSTITUTION, Select Documents 41 (1967).
64
Om Prakash Chautala v. Kanwar Bhan, AIR 2014 SC 1220; Umesh Kumar v. State of U.P., (2013) 10 SCC
591; Vishywanth Aggarwal v. Sarla Vishwanath Aggarwwal, AIR 2012 SC 2586.
65
State of Maharashtra v. Public Concern for Governance Trust, (2007) 3 SCC 587.
66
Subramanian Swamy v. Union of India, (2016) 7 SCC 221 : 2016 Cri U 3214: AIR 2016 SC 2728.

B. There existed right to be forgotten and right to erasure.
¶43. Right to life included the “finer graces of human civilisation”, Art.21 is repository of
various human rights.67 As has been already established Right to be forgotten has been
recognized by the Apex court of country.68
(i) Right to be forgotten is applicable in the instant case.
¶44. The “right to be forgotten” reflects the claim of an individual to have certain data
deleted from the Internet so that third persons can no longer trace them. From a substantive
perspective, the right to be forgotten is based on the autonomy of an individual becoming a
right holder with respect to personal information on a given time scale; the longer the origin
of the information goes back, the more likely personal interests prevail over public interests 69.
The data principal shall have the right to restrict or prevent continuing disclosure of personal
data by a data fiduciary related to the data principal where such disclosure—
withdrawn;or
¶45. In the instant case, there existed a right to be forgotten on account of withdrawal of
consent.
(ii) There exists an obligation to erase the irrelevant information.
¶46 Supreme Court permitted the newspaper to publish the biography of a confirmed
criminal “so far as it appears from the public records, even without his consent or
authorization.” If the press goes beyond this, it would be invading the privacy.71
¶47. The right to be forgotten can also be differentiated according to possible compliance
situations with the legal framework72:
67
P.Nalla Thampi v. Union of India, AIR 1985 SC 1133.
68
supra note 5.
69
Rolf H. Weber, The Right to Be Forgotten More Than a Pandora’s Box, JIPITEC 2011.
70
71
Khushwant Singh v. Maneka Gandhi, AIR 2002 Del 58.

 In case of an initial unlawfulness that has inhered in the processing from its very
beginning, the storage of data will never be able to be justified.
 A non-initial unlawfulness can be pre-existing in a way that this situation has started
at a point in time after the beginning of the data processing but before the potential
exercise of the right to be forgotten.
 The unlawfulness can occur subsequently, namely at the moment of the very exercise
of the right to be forgotten.
¶48. “If an individual no longer wants his personal data to be processed or stored by a data
controller, and if there is no legitimate reason for keeping it, the data should be removed from
their system”73. The right to be forgotten should enable the data owners to be in control of
their own identity online. In the instant case, there exists no legitimate reason to keep an
article related to a trial court judgment which has been overturned.
¶49. It is most humbly contended that in the Internet age, the most probable/typical
situation consists in the following scenario: A certain piece of information is relevant to the
public for a short time after its disclosure (for example, information about a crime).
Afterwards, however, this information progressively loses the general interest; nevertheless,
it might continue to have a significant impact on the situation of the person concerned (for
example, the convicted person after having been released from prison). Consequently, while
the benefit to society might outweigh the loss of the individual at the beginning, at a certain
point in time, a change occurs insofar as the loss in privacy could outweigh the benefits
derived from the freedom of expression. Arguably, at this point, the concerned individual
must be entitled to exercise the right to be forgotten through erasure of information74.
It is indisputable that when the trial court convicted Petitioner1, the benefit to society by
receiving information outweighed the loss to Petitioner1’s loss of privacy, however with span
of time, after overruling of judgment the individual vested the right to be forgotten.
72
GIOVANNI SARTOR, THE RIGHT TO BE FORGOTTEN: PUBLICITY, PRIVACY AND THE PASSAGE OF TIME,
(Schartum/Bygrave/Berge Bekken 2014).
73
Viviane Reding, The EU Data Protection Reform 2012: Making Europe the Standard Setter for Modern Data
Protection Rules in the Digital Age, Speech at the Conference Digital, Life, DESIGN MUNICH (22 January 2012),
http://europa.eu/rapid/press-release_SPEECH-12-26_de.htm.
74
supra note 29.

(iii) It does not violate Right to information of citizens.
¶50. It is most humbly submitted that the Supreme Court carved out a fundamental right to
information as being implicit in the right to free speech and expression75. This right is of
special importance to the media whose lifeline is information and whose business it is to
communicate information to the electorate so that the latter may make informed choices 76.
That is to say, right to information is implicitly imbibed within the Constitutional framework.
Judiciary in several landmark cases has expressly held right to information as natural
concomitant of Article 19 (1)(a) and Article 21 of Constitution of India, i.e., right to freedom
of speech and expression and right to life and liberty include right to information. Right to
live loses much of its meaning if a citizen's right to information is denied.
¶51 It is indisputable that by freedom of the press is meant the right of all citizens to
speak, publish and express their views. The freedom of press embodies the right of the people
to read. “Right of the people to read” refers to the right of the readers to get the information.77
¶52. It is most humbly contended that in the present case the people have a right to know
correct and relevant information. All the readers of “The People” who followed the news
article have a right to be informed about the updated news. In a democratic framework,
people have a right to freedom of speech and expression and have the right to have opinions
but theses opinions have to be based on right information. It is the duty of media to transmit
correct information so they can make informed choices. Their decisions about a person
should not be framed on information which is no more relevant.
¶53. It is most humbly contended that the information posted on the e-portal of the
newspaper the people is no longer relevant as the judgment of trial court has been overruled
by the high court. The article serves no legitimate purpose rather harms the reputation of Mr.
Vaibhav Dixit. Hence, it is pleaded that he should be given the right to be forgotten and the
article should be taken down.
75
Central Board of Secondary Education v. Aditya Bandopadhyay; AIR 2011 SCW 4888.
76
supra note 4.
77
Bennett Coleman v. Union of India, 1973 AIR 106, 1973 SCR (2) 757.

[ISSUE3]: DICLOSURE OF SYLVIA’S IDENTITY BY THE SEARCH ENGINES IN
RELATION TO AN ALLEGED RAPE CASE IS A VIOLATION OF SAFEGUARDS
PROVIDED TO HER BY THE LAWS OF THE REPUBLIC OF SCINDIA.
¶54. It is most humbly submitted that through the disclosure of identity of prosecutrix, in
the instant case Ms. Sylvia, the search engines have acted to detrimental to the interests of
Petitoner2 as they have acted against the lawful safeguards guaranteed under the laws and
COI. Due to the unlawfulness of their act, they are obligated to erase the information from the
digital platform.
A.There has been violation of safeguards provided to her by laws of Republic of Scindia.
(i) Petitioner2 has the locus standi to bring claim.
¶55. It is pertinent to note that even a foreigner can claim rights secured under art. 21.78
State is bound to protect the life and liberty of every human being, be he a citizen or
otherwise.79 On the question of applicability of Article 21 to non-citizens, the Supreme Court
has emphasized that even those who come to India as tourists also “have the right to live, so
long as they are here, with human dignity, just as the state is under an obligation to protect
the life of every citizen in this country, so also the state is under an obligation to protect the
life of the persons who are not citizens”.80 Thus, the locus standi of Petitioner 2 is
indisputable.
(ii) There has been violation of Sec. 228A of IPC.
¶56. Section 228A IPC made disclosure of identity of victim of certain offences
punishable. Printing or publishing name of any matter which may make known the identity of
any person against whom an offence under Sections 376, 376A, 376B, 376C or 376D was
alleged or found to have been committed, can be punished. There would be no violation of
the right to privacy if the person concerned “voluntarily thrusts himself into controversy or
voluntarily invites or raises a controversy”81 In cases of crimes relating to sexual offences, it
78
National Human Rights Commission v. State of Arunacahal Pradesh, AIR 1996 SC 1234; Louis De RAedt. V.
Union of India, AIR 1991 SC 1886.,
79
N.H.R.C v. State of Arunachal Pradesh, AIR 1996SC 1234; S.C. Chaudhary v. State of Tripura, AIR 2004
Gau.1.
80
Chairman Railway Board v. Chandrima Das, AIR 2000 SC 998.
81
R Rajgopal v. State of T.N., AIR 1995SC 264.

has been held that a trial by press, electronic media or public agitation, is the very antithesis
of the rule of law. It can lead to miscarriage of justice.82
So, search engines have acted unlawfully by disclosing the identity of prosecutrix.
¶57. Further, even if the plea it taken by search engines that it falls under the exception of
Sec228A (3) of IPC. As per which, restriction did not relate to printing or publication of
judgment by High Court or Supreme Court. It stands nowhere.
¶58. As, keeping in view the social object of preventing social victimization or ostracism
of the victim of a sexual offence for which Section 228A IPC had been enacted, it has been
laid down that it would be appropriate that in the judgments, be it of the Supreme Court, High
Court or lower Court, the name of the victim should not be indicated. The Supreme Court
chose to describe her as 'victim' in the judgment.83
¶59. Any publication concerning the right to privacy shall be unobjectionable if such
publication was based upon public records including Court Records.84 However, The Court
held that a female, who was the victim of a sexual assault, kidnap, abduction or a like
offence, should not further be subjected to the indignity of her name and the incident being
published in press/ media.85
¶60. Thus, it is being humbly submitted that search engines have acted in contravention to
the legal safeguards.
(iii) There has been deviance from the ruling of Apex Court.
¶61. It has been held that media will include all types of media including press, electronic
and social media etc.86 so, the online disclosure of information by webpages is within the
ambit of Sec. 228A of IPC.
¶62. Firstly, The publication of the name of the victim is prohibited and also the disclosure
of any other matter which may make known the identity of victims. 87 Publication concerning
the right to privacy aspects becomes unobjectionable if such publication is based upon public
82
State of Maharashtra v. R.J. Gandhi, AIR 1997 SC 3986.
83
State of Karnataka vs Puttaraja, 2003 (8) Supreme 364; Bhupinder Sharma v. State of Himachal Pradesh,
(2003) 8 SCC 551.
84
A. Raja v. P. Srinivasan, AIR 2010 Mad. 77; M/s. Akshya Creations v. V. Muthulakshmi, AIR 2013 Mad.
125.
85
State of Maharashtra v. R.J. Gandhi, AIR 1997 SC 3986.
86
Nipun Saxena & Anr. v. UOI, W.P. (C) No. 568 of 2012.
87
Ibid.

records including Court records. This is for the reason that once a matter becomes a matter of
public records, the right to privacy no longer subsists and it becomes a legitimate subject for
comment by press and media among others.88 In interests of decency (Art.19(2)) an exception
must be carved out to this rule, viz, a female who is victim of sexual assault, kidnap,
abduction or a like offence should not further be subjected to indignity by her name and
incident being published in press/media.89
¶63. Keeping in view the social object of preventing social victimization or ostracism of
the victim of a sexual offence for which section 228A has been enacted, it would be
appropriate that be in judgements, be it of this court, the high court or the lower court, the
name of the victim should not be indicated.90It is intended to protect her from
psychological and sociological torture or mental agony, that may follow the
unfortunate incident of sexual violence. Society has a duty to support the victims of
sexual violence and to ensure that they come back to normalcy and start leading a normal life.
Victims of such violence are not denuded of their fundamental right to privacy and are liable
to be insulated against unnecessary public comments.91
¶64. Further, the lofty idea of bringing a societal change through protests can be done
without disclosing her true identity. ‘Nirbhaya’ became the most effective symbol of
protest the country has ever known.92 If a campaign has to be started to protect the rights of
victim and mobilise public opinion it can be done so without disclosing her identity.
(iv) It has resulted in violation of fundamental rights of Petitioner2.
¶65. It includes right to live in peace.93 Right to life includes right to live with human
dignity and all that goes along with it, which includes freely moving about and mixing and
commingling with fellow human beings.94 Reputation is of ancient origin and necessary to
human society.95 No freedom is higher than personal freedom and no duty higher than to
88
R Rajagopal v. State of Tamil Nadu, 1995 AIR 264.
89
District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496.
90
State of Karnataka v. Puttaraja, AIR1961 SC 946.
91
Anju Varghese v. State of Kerala, Crl. MC No.5247 of 2017 decided on 27.09.2018.
92
supra note 86.
93
Confederation of Ex- Servicemen Assosciation v. Union of India, (2006) 8 SCC 399.
94
Francis Coralie v. U.T. of Delhi, 1981 AIR 746, 1981 SCR (2) 516.
95
V.V. Anvekar v. State of Karnataka, AIR 2013 SC 329.

96
maintain it unimpaired. Reputation of a person is his valuable asset and is a facet of his
right under Art. 21.97 Thus, there has been violation of fundamental rights.
B. An obligation to erase the information has arisen.
¶66. The data principal shall have the right to restrict or prevent continuing disclosure of
personal data by a data fiduciary related to the data principal where such disclosure—
withdrawn;or
¶67. As disclosure of personal information by data fiduciary has been made in

contravention to the provisions of laws made by Parliament. Thus, search engines are
obligated to erase the information. This would be in line with the trend in the Western
countries where they follow this as a matter of rule “Right to be forgotten” in sensitive cases
involving women in general and highly sensitive cases involving rape or affecting the
modesty and reputation of the person concerned. 99
96
Francis Coralie Mullin v. W.C. Khambra, AIR 2013SC 2569.
97
State of Bihar v. Lal Krishna Advani, (2003) 8 SCC 1; Sukhwant Singh v. State of Punjab, (2009) 7 SCC 599;
Umesh Kumar v. State of Andhra Pradesh, (2013) 10 SCC 591; Om Prakash Chautala v. Kanwar Bhan, AIR
2014 SC 1220.
98
99
{Name Redacted} v. The Registrar General, Crl.P. No. 1599/2015.

PRAYER FOR RELIEF
In light of the issues raised, arguments advanced and authorities cited, the counsel for the
Petitioner humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:
I.
Fundamental right to privacy of Vaibhav Dixit has been violated by the act of Funbook, The
IT Rules, 2011 are unconstitutional, order Funbook to erase the personal information of
Vaibhav Dixit and to award compensation for the detrimental effect of Funbook’s Act.
II.
The existence of news is a violation of Vaibhav Dixit’s rights guaranteed under COI, order
“The People” to remove the alleged article, award compensation for mental harassment and
pass guidelines for preventing such acts in future in the territory of Scindia.
III.
Diclosure of Sylvia’s identity by the search engines in relation to an alleged rape case is a
violation of safeguards provided to her by the laws of the republic of Scindia, to order search
engines to delist all the articles related to case, to award compensation to Sylvia, to order the
retraction of name of Sylvia from the instant judgement.
AND/OR
PASS ANY ORDER THAT THIS HON’BLE COURT MAY DEEM FIT IN THE
INTEREST OF EQUITY, JUSTICE AND GOOD CONSCIENCE.
And For This Act Of Kindness, The Counsel For The Petitioner Shall Duty Bound Forever
Pray.
Sd/-
(Counsel for Petitioner)
31
MEMORIAL ON BEHALF OF THE PETITIONER

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MMC-23P

THE 7TH MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019.

5th -7th April, 2019.

PETITION FILED UNDER Art.32 and Art.139A of Constitution of India.

BEFORE THE HON’BLE SUPREME COURT OF INDIA

VAIBHAV DIXIT................................................................................[PETITIONER NO. 1]

UNION OF INDIA.............................................................................[RESPONDENT NO.2]

[WP No. __ of 2019 under Art.32 of COI]

VAIBHAV DIXIT................................................................................[PETITIONER NO. 1]

THE PEOPLE....................................................................................[RESPONDENT NO.3]

[Transfer Petition No. __ of 2019 under Art.139A of COI]

UNION OF INDIA............................................................................[RESPONDENT NO. 2]

[WP No. __ of 2019 under Art.32 of COI]

ON SUBMISSION TO REGISTRY OF THE SUPREME COURT OF INDIA

MEMORIAL FOR THE PETITONERS

TABLE OF CONTENTS ........................................................................................................ 1

INDEX OF AUTHORITIES ................................................................................................... 2

LIST OF ABBREVIATIONS ................................................................................................. 9

STATEMENT OF JURISDICTION .................................................................................... 10

QUESTIONS PRESENTED ................................................................................................. 11

STATEMENT OF FACTS .................................................................................................... 12

SUMMARY OF ARGUMENTS ........................................................................................... 14

ARGUMENTS ADVANCED ................................................................................................ 15

PRAYER FOR RELIEF........................................................................................................ 31

MEMORIAL ON BEHALF OF THE PETITIONER 1

SR. NAME OF THE CASE CITATION PAGE

1. {Name Redacted} v. The Registrar General Crl.P. No. 1599/2015 37

2. A. Raja v. P. Srinivasan AIR 2010 Mad. 77

3. A.K. Kraipak v. Union of India AIR 1970 SC 150 19

4. Anju Varghese v. State of Kerala Crl. MC No.5247 of 36

5. Bandhu Mukti Morcha v. Union of India 1984 AIR 802, 1984 28

6. Bennett Coleman v. Union of India 1973 AIR 106, 1973 32

7. Bhupinder Sharma v. State of Himachal Pradesh (2003) 8 SCC 551 43

8. Board of Trustees v. Dilip 1983 AIR 109, 1983 28

9. Central Board of Secondary Education v. Aditya AIR 2011 SCW 4888 31

10. Chairman Railway Board v. Chandrima Das AIR 2000 SC 998 33

MEMORIAL ON BEHALF OF THE PETITIONER 2

13. Deep Chand v. State of UP AIR 1959 SC 648 19

15. Douglas v. Hello! Ltd (2001) Qb 967 (U.K) 14

16. Francis Coralie Mullin v. W.C. Khambra AIR 2013SC 2569 36

18. Google Spain SL. v. Agencia Española de [2014] EUECJ C- 20

19. Govinda v. State of M.P (1975) 3 SCR 946 13

20. Griswols v. Connection Cut (1965) 381 US 13

21. Hukum Chand Shyam Lal v. UOI AIR 1976 SC 789 20

22. Justice KS Puttaswamy (Retd) and Anr v. Union of [2017] 10 SCC 1 14

MEMORIAL ON BEHALF OF THE PETITIONER 3

24. Kartar Singh v. State of Punjab (1994) 3 SCC 569 24

25. Kharak Singh v. State of U.P. AIR 1963 SC 1295. 13, 20

26. Khushwant Singh v. Maneka Gandhi AIR 2002 Del 58 30

27. Louis De RAedt. V. Union of India AIR 1991 SC 1886 33

28. M. P. Sharma And Ors. v. Satish Chandra AIR 1954 SC 300 13

29. M.C. Mehta v. Union of India AIR 1999 SC 2583 17

30. M/s. Akshya Creations v. V. Muthulakshmi AIR 2013 Mad. 125 36

31. Maneka Gandhi v. Union of India AIR 1978 SC 597 17

32. Munn v. Illinois 94 U.S. 113 (1876) 27

33. N.H.R.C v. State of Arunachal Pradesh AIR 1996 SC 1234 33

MEMORIAL ON BEHALF OF THE PETITIONER 4

37. P.Nalla Thampi v. Union of India AIR 1985 SC 1133 29

39. PUCL v. U.O.I AIR 1997 SC 568 13

40. R Rajagopal v. State of Tamil Nadu 1995 AIR 264 35

41. S.C. Chaudhary v. State of Tripura AIR 2004 Gau.1 33

42. Sarjubhaiya Mathurbhaiya Kahar v. Deputy 1984 CriLJ 1474, 20

43. Sri Vasunatahn v. The Registrar General W.P. No. 62038/2016 21