Final Memo Pet

7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION-2019
MMC-18
TEAM CODE:
BEFORE THE HON’BLE SUPREME COURT OF SCINDIA
IN THE MATTERS OF:
WRIT PETITION NO. ___/2019
VAIBHAV DIXIT………..……………………………………………………PETITIONER
V.
FUNBOOK………………………………………………………………..…RESPONDENT
VAIBHAV DIXIT….……………………………………………………...…. PETITIONER
V.
THE PEOPLE……….………………………………………………………RESPONDENT
SYLVIA……..…………………………………………………………………PETITIONER
V.
SEARCH ENGINES………..……………………………………………….RESPONDENT
WRITTEN SUBMISSION BEHALF OF THE PETITIONERS
MEMORIALS ON BEHALF OF THE PETITIONERS

TABLE OF CONTENTS
S. No. TITLE Pg. No.
1. LIST OF ABBREVIETIONS
2. INDEX OF AUTHORITIES
3. STATEMENT OF JURISDICTION
4. SYNOPSIS OF FACTS
5. STATEMENT OF ISSUES
6. SUMMARY OF ARGUMENTS
7. ARGUMENT ADVANCED
8.
9.
10.
15. PRAYER

LIST OF ABBREVIATIONS
AIR All India Reporter
Art. Article
Anr. Another
& And
F.I.R First Information Report
Hon’ble Honorable
i.e., That is
Ltd. Limited
Ors. Others
¶ Paragraph
SC Supreme Court
SCC Supreme Court Cases
U/A Under Article
v. Versus

INDEX OF AUTHORITIES
BOOKS
1. M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (8th ed. 2018).
).
6. BLACK’S LAW DICTIONARY, (Bryan A. Garner eds. 9th ed. 2009).
CASES
LEGAL DATABASES
1. http://www.manupatrafast.in/
2. http://www.scconline.com
LEGISLATION
1. Constitution of India, 1950.
3.

STATEMENT OF JURISDICTION
PETITION 1: The petitioner Mr. Vaibhav Dixit has approached the Honourable Supreme
Court under Article 32 of the Scindian Constitution.
PETITION 2: The petitioner Mr. Vaibhav Dixit has approached the High Court of Dehri
under 226 of the Scindian Constitution.
PETITION 3: The petitioner Ms. Sylvia has approached the Supreme Court of Scindia under
Article 32 of the Scindian Constitution.
The three petitions are clubbed together by the Supreme Court under Article 139A of the
Scindian Constitution and are listed for preliminary hearing.

SUMMARY OF FACTS
Background
Republic of Scindia is a nation situated in south east of Asia, having a constitution of its own
and all its laws are in pari material to the laws of the Republic of India. Mr.Vaibhav Dixit, a
resident of Dehri, the capital of Scindia is a business tycoon and the owner of Meliance
Industries and Ltd. He is suspected to be involved in tax evasion in Scindia and money
laundering in France.
Funbook
In 2007, Mr. Dixit created an account on Funbook, a France based social networking site.
While creating an account he mentioned his personal details and while installing the app in
2008, he granted permission to access the gallery without which the app could not be used.
MS. Sylvia, a resident of France and an ex-employee of Mr.Dixit and they were in good
terms with Mr.Dixit and they would frequently chat over Funbook and the screenshots of the
chats were kept in his gallery. On Nov7,2017, Mr. Dixit made a request to Funbook to delete
his account and it was done accordingly by 14th of November. The investigative agencies was
keeping a vigilant eye on Mr.Dixit in connection to tax evasion and money laundering case.
They approached Funbook in this regard.On 16 November, Funbook shared the personal data
of Mr.Dixit with the agents.
FIR and the Trial Court Proceedings
Mr. Dixit approached the Supreme Court of Scindia on Dec 5 contending his Right to Privacy
has been infringed. While the matter was pending before the court, Ms. Sylvia visited him on
31st December at Hotel Residency. On 1st January,2018 Ms. Sylvia lodged an FIR against Mr.
Dixit on the offence of rape. The Trial Court found him guilty and convicted him on May 15,
2018.Many newspapers including “The People” published this matter.
The High Court Appeal and Acquittal
Mr. Dixit filed for an appeal before the High Court of Dehri where he was acquitted on
December 20,2018 as there were insufficient evidences against him. But it was found that the
matters related to the verdict of the trial court which has been overturned by the High Court

was still available on the e-newspaper portal. Mr.Dixit approached the High Court of Dehri
contending that his fundamental rights are infringed.
Ms. Sylvia
Ms. Sylvia while searching something on the internet and on typing her own name came
across weblinks relating to her case. She approached the Supreme Court claiming that
disclosure of her identity by the search engines is a violation of the rights provided to her.
Clubbing of Petitions
Finding the issues of both Mr.Dixit and Ms.Sylvia to be pertaining to the same question of
law, the Supreme Court on an application filed by the petitioners clubbed the petitions and
listed it for preliminary hearing.

STATEMENT OF ISSUES
ISSUE 1
WHETHER THE WRIT PETITION FILED BY THE PETITIONERS IS

MAINTAINABLE?
ISSUE 2
WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIARIES

GUIDELINES) RULES, 2011 IS CONSTITUTIONALLY VALID?
ISSUE 3
WHETHER THERE IS AN INFRINGEMENT OF RIGHT TO PRIVACY OF THE

PETITIONERS?
ISSUE 4
WHEATHER THE PETIOTIONERS HAVE THE RIGHT TO ERASURE AND

RIGHT TO BE FORGOTTEN?

SUMMARY OF ARGUMENTS
1. THAT THE WRIT PETITIONS FILED BY THE PETITIONERS ARE

MAINTAINABLE.
It is humbly submitted before the Hon’ble Court that the writ petition is maintainable under
article 32 of the Constitution. The sole objective of Art. 32 is the enforcement of the
fundamental rights guaranteed by the Constitution of Scindia (hereinafter referred to as the
Scindian Constitution). The original jurisdiction of the Supreme Court under Article 32 can
be invoked in any case of violation of a Fundamental Rights guaranteed under part III of the
Constitution of Scindia. The existence of an alternative remedy does not operate as an
absolute bar on the writ Court as it is a process that the Court chooses to opt out of
convenience and discretion. Hence, the petitions filed by both Mr.Dixit and Ms.Sylvia are
maintainable before the Hon’ble court.
2. WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIARIES

GUIDELINES) RULES, 2011 IS CONSTITUTIONALLY VALID.
It is humbly submitted before the Hon’ble Court that the IT(Intermediary

Guidelines)Rules,2011(hereinafter referred to as rules)) is constitutionally invalid as it
infringes one of the most important fundamental right under article 21,that is Right to life and
personal liberty.
3. WHETHER THERE IS AN INFRINGEMENT OF RIGHT TO PRIVACY OF

THE PETITIONERS.
It is humbly submitted before the Hon’ble Supreme Court of Scindia that, the right to Privacy
of the petitioners has been infringed. The liberty of an individual is a matter of fundamental
natural law, a private preserve and must be safeguarded from unnecessary interference. Right
to privacy is vested within right to life and personal liberty under Art. 21 of Constitution of
Scindia and it is constitutionally protected as a fundamental right. The petitioners right to
privacy in this case has been infringed by the respondents.

4. THAT THE PETIOTIONERS HAVE THE RIGHT TO ERASURE AND

RIGHT TO BE FORGOTTEN.
It is humbly submitted before the Hon’ble Court that both the petitioners are entitled to the
right to be forgotten. As the information available on the news portal which is accessible by
the common mass might affect his image and his credibility in the market which in turn will
affect his business the petitioner believes that he has a right to have his antecedents forgotten
under right to be forgotten as a facet of right to privacy.

ARGUMENTS ADVANCED
1. THAT THE WRIT PETITIONS FILED UNDER ARE MAINTAINABLE.
1¶ It is humbly submitted before the Hon’ble Supreme Court of Scindia that the three
petitions filed by the petitioners are maintainable. The petitions filed by Mr. Vaibhav
Dixit and Ms. Sylvia under Art. 321 are maintainable. Similarly, another petition filed
by Mr. Vaibhav Dixit is also maintainable before this Hon’ble Court.
1.1 THAT THE PETITIONERS HAVE APPROACHED THE SC UNDER

ARTICLE 32.
2¶ The sole objective of Art. 32 is the enforcement of the fundamental rights guaranteed
by the Constitution of Scindia. The original jurisdiction of the Supreme Court under
Article 32 can be invoked in any case of violation of a Fundamental Rights
guaranteed under part III of the Constitution of Scindia. The constitution makers
conferred on the Supreme Court the power to issue writs for the speedy enforcement
of fundamental rights and made the right to approach the Supreme Court for such
enforcement itself a fundamental right.
1.1.1 That the Writ Petition filed by Mr. Vaibhav Dixit is Maintainable.
3¶ Article 32(1)2 of Constitution of India clearly states that whenever there is a violation
of a fundamental right any person can move to the Court for an appropriate remedy.
Clause (2) of Article 32 confers power on the Supreme Court to issue appropriate
directions or orders or writs for the enforcement of any of the rights conferred by part
III of the Constitution.
4¶ Mandamus lies against authorities whose duty is to perform certain acts and they have
failed to do so. The legal duty must be of a public nature. In The Praga Tools
Corporation v. C.V. Imanual3 and Sohanlal v. Union of India4, the Supreme Court
stated that mandamus might under certain circumstances lie against a private
individual if it is established that he has colluded with a public authority. In the
1
Article 32, Indian Constitution, 1950.
2
Article 32(1), Indian Constitution, 1950.
3
The Praga Tools Corporation v. C.V. Imanual, A.I.R. 1969 S.C. 1306.
4
Sohanlal v. Union of India, A.I.R. 1957 S.C. 529: (1957) S.C.R. 738.

present case Funbook without the consent of the customer has provided sensitive
personal information to the Investigation Agencies of the Republic of Scindia.
5¶ As the Information Technology (Intermediaries Guidelines) Rules5, 2011 violates

Article 19(2) of the Scindian Constitution6 thus, are proven to be unconstitutional.
The statute shall be considered as void. The Rules operate under Information
Technology Act, 2000.
6¶ The Investigation Agencies of The Republic of Scindia have acted under the said law
which is deemed to be arbitrary.
7¶ Article 13(2) in The Constitution of Scindia7 states that,
“The State shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of this
clause shall, to the extent of the contravention, be void.”
8¶ The intermediary Rules under which the Central Government of Republic of Scindia
is empowered to collect information is void and the Sec. 69 of Information
Technology Act, 20008 is also void.
9
9¶ The counsel has locus standi to file a writ under Article 32 of the Constitution as the
investigation agencies acted under a void law, as argued by the counsel in the
subsequent arguments, and had no such authority to extract information form
Funbook was a directed violation of Fundamental Right to privacy of Mr. Dixit.
1.1.2 That the Petition filed by Ms. Sylvia is Maintainable.

10¶ It is humbly submitted before the Hon’ble Supreme Court of Scindia that the writ
petition filed by Ms. Sylvia is maintainable
11¶ In the case of the Sabu Mathew George v. Union of India and Ors.,10 where a writ
petition was filed inter alia against search engine operators including Google, Yahoo
and Microsoft, to hold them liable for displaying advertisements or searches. The
Court imposed obligations to monitor the complaints and respond to complaints
5
Sec. 69, Information Technology Act, 2000.
6
7
8
Supra note 5.
9
Supra note 1.
10
Sabu Mathew George V. Union Of India And Ors. Writ Petition, (Civil) No. 341 Of 2008.

relating to the Act upon the search engines. In the above case, the petitioners
contended to the further issuance of writ of mandamus to the said respondents to post
the directions of this Court. It was observed in this case that intermediaries must
evaluate the legality of the content and take appropriate action. The court directed the
intermediaries to install ‘auto-blocks’ for filtering content.
1.2 THAT THE PETITION FILED BY VAIBAHV DIXIT BEFORE THE HC WAS
WITHDRAWN BY THE SC AND WAS CLUBBED WITH THE OTHER TWO
PETITIONS.
12¶ The petitions filed before the High Court of Dehri derives its jurisdiction from Article
139A in The Constitution of Scindia which is in Pari Materia to the Constitution of
India11 (herein after referred to as Constitution).
13¶ In the case of M. Siddiq (D) Thr. Lrs. v. Mahant Suresh Das12, the Supreme Court
exercising its jurisdiction under Article 139A had transferred the writ petitions, which
were pending in the High Court. As the matter involving the case was based on the
same question of law i.e. the right to privacy of the petitioner, the three cases have
been clubbed together and is listed for preliminary hearing. The petition is thus
maintainable.
1.3 ALTERNATIVE REMEDY IS NO BAR ON THE JURISDICTION OF

SUPREME COURT.
14¶ Mandamus is not refused on the ground that there is an adequate alternate remedy
where the petitioner complains that his fundamental right is infringed.13 The Courts
are duty bound to protect the fundamental rights and therefore mandamus is issued. It
is only when mandamus is issued “for any other purpose” that the existence of an
alternate remedy bars its issuance.14
15¶ Mandamus will not, however, be refused when ordinary civil proceedings or
administrative appeals or revision do not provide an equally effective and convenient
11
Article 139, Indian Constitution,1950.
12
M.Siddiq (D) Thr. Lrs. vs Mahant Suresh Das CIVIL APPEAL NOS.10866 10867 OF 2010.
13
State of Bombay v. United Motors, A.I.R. 1951 S.C. 252: (1953) S.C.R. 1069.
14
Veerappa Pillaiv. Raman Rtimin Ltd.. A.I.R. (1952) S.C. 192: (1952) SCR 583.

remedy. Thus, if the alternative remedy imposes a heavy financial burden on the
petitioner, it will not be regarded as a ground for refusing mandamus.15
16¶ In Daryao v. Uttar Pradesh16, the Supreme Court has been held the importance of the
Article 32 of the Constitution,17that it is in itself a fundamental right and, therefore,
the existence of an alternative remedy is no bar to the Supreme Court entertaining a
petition under Article 32 for the enforcement of a fundamental right. When once the
Court is satisfied that the petitioner’s fundamental right has been infringed, it is not
only its right but also its duty to afford relief to the petitioner, and he need not
establish either that he has no other adequate remedy, or that he has exhausted all
remedies provided by law, but has not obtained proper redress.
17¶ When the petitioner establishes infringement of his fundamental right, the Court has
no discretion but to issue an appropriate writ in his favour. The Court has further
stated the direct amenability to the jurisdiction of the Supreme Court in Ramesh
Thappar v. State of Madras18, as it is also not necessary for a petitioner to first resort
to High Court under Article 226 of the constitution before approaching the Supreme
Court under Article 32.
18¶ The rule which requires the exhaustion of alternative remedy is the rule of
convenience and discretion rather than a rule of law.19 It does not oust the jurisdiction
of the Supreme Court to exercise its jurisdiction under Article 32 of the Constitution.
The mere existence of an adequate alternative remedy cannot per se be a good and
sufficient ground for rejecting a petition under Article 32.20
2. THAT THE INFORMATION TECHNOLOGY (INTERMEDIARIES

GUIDELINES) RULES, 2011 IS CONSTITUTIONALLY VALID.
19¶ It is humbly submitted before the Hon’ble Court that the IT(Intermediary Guidelines)
Rules, 2011(hereinafter referred to as rules),21 is constitutionally invalid as it infringes
15
Himmatlal v. State of M.P., AIR. (1954) S.C. 403: (1954) S.C.R. 112.
16
Daryao v. Uttar Pradesh, A.I.R. 1961 S.C. 1457.
17
Article 32, Indian Constitution,1950.
18
Romesh Thappar v. State of Madras, AIR 1950 SC 124.
19
Romesh Thappar v. State of Madras, AIR 1950 SC 124; Himmat Lal v. State of M.P.,1954 SCR 1122: AIR
1954 SC 403; Kochuni v. State of Madras, AIR 1950 SCR 566.
20
Article 32, The Constitution of India,1950.
21
Information Technology (Intermediary Guidelines) Rules, 2011.

one of the most important fundamental right under article 21, that is Right to life and
personal liberty.22
2.1 Violation of Principles of Natural Justice

20¶ It is humbly brought to the notice of the Hon’ble court that section 69 of the
23
Information Technology Act 2000 (hereinafter referred to as §69) falls short of
meeting with the principles of natural justice by failing to accommodate pre-decisional
hearings. The Section only makes post-decisional hearings before a review committee
possible as a part of its procedure, compelling people to give up their personal
information without being given an opportunity to be heard.
21¶ Rule 3(4) that mandates that the intermediary, upon obtaining knowledge by itself or
being brought to actual knowledge by an affected person about any such information as
mentioned in sub-rule (2) above, shall act within thirty six hours to disable such
information that is in contravention of sub-rule (2), does not provide for an opportunity
to the user who has posted the content to reply to the complaint and to justify his case.
Thereafter the intermediary has 30 days to redress such complaints.
22¶ The Rule, which mandates the intermediary to disable the content without providing an
opportunity of hearing to the user who posted the content, is violative of the principles
of natural justice and is highly arbitrary. This provision results in taking down of
content without any involvement of the executive or the judiciary without any checks
and safeguards. This Rule results in endowing an adjudicatory role to the intermediary
in deciding questions of fact and law, which can only be done by a competent court.
Such a provision of the Rules is liable to be misused and is thus arbitrary.
23¶ In this case, Mr.Dixit, the victim was unaware of the fact that his information is being
given away. He had no knowledge of that whatsoever. Hence the act falls short of
meeting with the principles of natural justice.
3. Violative of Article 21 of Indian Constitution

24¶ The nine-judge bench in K.S. Puttaswamy24 declared that there is a fundamental right
to privacy flowing from inter alia Articles 19 and 21 of the Constitution. In order for a
22
23
Supra note 17.
24
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 S.C. 3081(India).

restriction such as Section 69 allowing for interception of personal data on a computer

to be constitutionally valid, it would not only have to pursue a legitimate state aim (say,
for instance, national security) but also be proportionate, so that there is a rational
nexus between the means adopted (i.e., authorisation of interception) and the aim.
25¶ Section 69 of the IT Act25 is so broadly worded that it could enable mass surveillance to
achieve relatively far less serious aims such as preventing the incitement of the
commission of a cognisable offence. Such surveillance could be justified to achieve
relatively far less serious objectives such as a Facebook post expressing dissent against
government policy which, in the state’s opinion, is offensive. The state, through the
powers under Section 69, can therefore justify authorising surveillance, purporting this
to be a grave concern.
26¶ The language of Section 69, therefore, speaks abundantly of doublespeak, allowing for
disproportionate state action, antithetical to the right to privacy. The Court has held in
Ram Jethmalani & Ors. v. Union of India & Ors.26 that revelation of bank details
without prima facie ground of wrong doing would be violative of right to privacy. The
said decision has been approved in K.S. Puttaswamy27. Under the garb of prevention of
money laundering or black money, there cannot be such a sweeping provision which
targets every resident of the country as a suspicious person. Presumption of criminality
is treated as disproportionate and arbitrary.28
i) A measure restricting a right must have a legitimate goal (legitimate goal stage).
27¶ The mere suspect does not entitle the investigation agencies to exact certain sensitive
personal information. Mr. Dixit being a mere suspect in case of tax evasion and money
laundering does not entitle the investigation agencies to extract highly sensitive
personal information, that too without his knowledge.
ii) There must not be any less restrictive but equally effective alternative (necessity
stage).
28¶ There are several other ways in which search could have been conducted. The revenue
department has created the office of Commissioner Goods and Service Tax
(Investigation) to deal exclusively with enforcement issues like search, seizure and
25
Sec. 69, Information Technology Act, 2000.
26
Ram Jethmalani & Ors. v. Union of India & Ors. (2011) 8 S.C.C. 1.
27
28
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 S.C. 3081.

arrest, as it looks to crackdown on tax evaders. Mr.Dixit was a mere suspect so the
investigative agencies don’t have the Suo moto to collect the information.
iii) The measure must not have a disproportionate impact on the right holder (balancing
stage.)
29¶ Section 69, as mentioned earlier, allows mass surveillance even when only law and
order is affected while public order prevails: merely for precluding the incitement of the
commission of an offence.The section 69 covers not only a large number of
intermediaries but also subscribers, making it highly intrusive kind of surveillance. This
makes section 69 of the IT Act a highly potent tool against privacy of individuals.It
purports to do is “Impinge upon natural right to privacy” and the “sweeping Powers” to
intercept, monitor, decrypt data is a violation of Article 21 of the Constitution.
30¶ What the section “Purports” to do is to have a provision in law to enable use of powers
of interception, monitor and decrypt data either in transit or at rest. In the process of
doing so, there must not be a disproportionate impact on the right holder. In the instant
case, Mr.Dixit’s fundamental right guaranteed under article 21 has been grossly
infringed.
31¶ Hence the above arguments point out to the fact that the IT Rules is not constitutionally
valid.
4. THAT THERE IS AN INFRINGEMENT OF RIGHT TO PRIVACY OF THE

PETITIONERS.
32¶ It is humbly submitted before the Hon’ble Supreme Court of Scindia that, the right to
Privacy has been recognized as a Fundamental Right in the Landmark judgment
of Justice K.S. Puttaswamy (Retd.) v. Union of India29 and the acts committed by the
respondents is in violation of the fundamental right guaranteed under Art. 21.30
33¶ The right to privacy is an element of human dignity. The sanctity of privacy lies in its
functional relationship with dignity. Privacy ensures that a human being can lead a life
of dignity by securing the inner recesses of the human personality from unwanted
29
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 S.C. 3081(India).
30

intrusion. Privacy recognises the autonomy of the individual and the right of every
person to make essential choices which affect the course of life.
34¶ Art. 21 of Scindian constitution states that,
“No person shall be deprived of his life and personal liberty except according
to the procedure established by law”
35¶ The Apex Court in Justice K.S. Puttaswamy (Retd) v. Union of India has ruled that the
right to privacy is protected as an intrinsic part of the right to life and personal liberty
under Article 21 and also as a part of the freedoms guaranteed by Part III of the
Constitution of Scindia.
4.1 THAT THERE WAS A VIOLATION OF RIGHT TO PRIVACY

36¶ It is humbly submitted before the Hon’ble Court that right to Privacy is the basic
inalienable right of an individual31 and is essential for his development as a human
being. The liberty of individual is a matter of fundamental natural law, a private
preserve and must be safeguarded from unnecessary interference.32
37¶ Right to privacy has been constitutionally protected as a fundamental right. 33 Right to
privacy is vested within right to life and personal liberty under Art. 21 of Constitution
of Scindia.34 A citizen under this right has the right to protect and safeguard the liberty
of his own, his family, marriage, procreation, motherhood, childbearing and education
among other matters.
38¶ According to Black’s Law Dictionary, Privacy has been defined as, “right to be left
alone”35; right of a person to be free from any unwarranted publicity; “right to live
freely from any unwarranted interference by the public in matter with which public is
not necessarily concerned”.
31
32
Gobind v. State of Madhya Pradesh and Ors., (1975) 2 S.C.C. 148.
33
Gobind v. State of Madhya Pradesh and Ors., (1975) 2 S.C.C. 148; R. Rajagopal v. State of Tamil
Nadu,(1994) 6 S.C.C. 632 ; People’s Union for Civil Liberties v. Union of India, (1997) 1 S.C.C. 301; Kharak
Singh v. State of UP, AIR 1963 SC 1295; Ramlila Maidan Incident v. Home Secretary, Union of India,
(2012)S.C.C. 1, 119-120 .
34
Kharak Singh v. State of Uttar Pradesh, AIR 1963 S.C. 1295; Gobind v. State of Madhya Pradesh, AIR 1975
S.C.1378; PUCL v. Union of India, AIR 1991 S.C. 207.
35
R.Rajgopal v. State of Tamil Nadu, 1994 6 S.C.C. 632 .

39¶ The scope of Art. 21 is very broad and it covers every aspect of life which is required
for an individual to live a healthy and secured life. Art. 21 takes all those aspects of life
which go to make a person's life meaningful and even the State cannot violate it.36 The
article protects the dignity of human life, one's personal autonomy, one’s right to
privacy, etc. Right to dignity has been recognized to be an essential part of the right to
life and accrues to all persons on account of being humans.
A) THE RIGHTS OF VAIBHAV DIXIT HAVE BEEN VIOLATED

40¶ In the instant case, Mr. Vaibhav Dixit, a resident of Dehri, the capital of Scindia is a
business tycoon and the owner of Meliance Industries and Ltd.37 He is suspected to be
involved in tax evasion in Scindia and money laundering in France. 38 In 2007, Mr.
Dixit created an account on Funbook, a France based social networking site.39 While
creating an account he mentioned his personal details and while installing the app in
2008, he granted permission to access the gallery without which the app could not be
used. 40
41¶ It is humbly submitted before this Hon’ble court that IT rules should not give such
authority to central government to collect data from intermediaries because of its ultra
vires nature and a state which mentions democracy and guarantees right to privacy to
every individual in its constitution which is the basis of every law should not allow
center to collect data of any individual without at least even informing that person and
in this case it is Mr. Dixit who is the victim of such abuse of power by center.
42¶ The Information Technology (Intermediary Guidelines) Rules, 2011 under which
powers are vested with the Central government of the Republic of Scindia, it seeks data
from intermediaries but §79 of the IT Act elaborates on the exemption from liabilities
of intermediaries in certain cases.
36
37
Moot Propr.
38
39
40

43¶ § 79(2)(c) mentions that intermediaries must observe due diligence while discharging
their duties, and also observe such other guidelines as prescribed by the Central
Government.41
44¶ The Intermediaries Guidelines Rules lay down the procedures that an intermediary has
to follow to avail safe harbor. Rule 3(2)7 of the Intermediaries Guidelines Rules lists
the categories of information, if posted online, which could be considered as illegal.
According to Rule 3(4)(8) an affected person could write to the intermediary to remove
any content which is listed as unlawful under Rule 3(2). The intermediary has to act
within 36 hours to remove the content.42 If the intermediary does not act within the
stipulated time then the intermediary cannot avail safe harbor. Such power is violation
of an individual's right to privacy guaranteed under constitution of Republic of Scindia
and is also ultra vires in nature. Therefore, the Information Technology rules, 2011 is
constitutionally invalid.43
45¶ Sec. 9 of GDPR states that,
“Processing of personal data revealing racial or ethnic origin, political

opinions, religious or philosophical beliefs, or trade union membership, and
the processing of genetic data, biometric data for the purpose of uniquely
identifying a natural person, data concerning health or data concerning a
natural person's sex life or sexual orientation shall be prohibited.”
46¶ As Funbook is based in the country which abides by GDPR and the chats were
provided even after that which is a clear violation of right to privacy of Mr. Dixit.
B) THAT THE RIGHT TO PRIVACY OF MS. SYLVIA HAD BEEN VIOLATED

ALONGSIDE MR, DIXIT’S RIGHT TO PRIVACY
47¶ Ms. Sylvia, a resident of France and an ex-employee of Mr. Dixit, was in good terms
with Mr. Dixit and they would frequently chat over Funbook and the screenshots of the
chats were kept in his gallery. On 16 November, Funbook shared the personal data of
41
COMMENTS INVITED ON DRAFT OF INTERMEDIARY GUIDELINES 2018 | Ministry of Electronics
and Information Technology, Government of India, Meity.gov.in (2019), https://meity.gov.in/comments-
invited-draft-intermediary-rules (last visited Mar 14, 2019).
42
43
LIABILITY OF INTERMEDIARIES UNDER INFORMATION TECHNOLOGY ACT, 2000, R & A
Associates (2019), http://www.rna-cs.com/liability-of-intermediaries-under-information-technology-act-2000/
(last visited Mar 14, 2019).

Mr.Dixit with the agents.44 The Petitioner Mr. Dixit had approached the Hon’ble
Supreme Court of Scindia on the grounds of violation of Right to Privacy.
48¶ In the course of extracting Information of Mr. Dixit the government had also sought for
data that contained personal and very sensitive data of Ms. Sylvia as well. Ms. Sylvia
had shared Information that reveled her racial origin, political opinions, religious and
philosophical beliefs, and also data concerning health furthermore the data concerning
her sex life was also disclosed in the chats.45 All the above stated data was classified as
personal sensitive data in sec.9 of GDPR 46
C) THERE WAS A VIOLATION OF Mr. DIXIT’S RIGHT TO PRIVACY BY THE

PEOPLE
49¶ On 1st January, 2018, Ms. Sylvia lodged an FIR against Mr.Dixit for committing the
offence of rape. The Trial Court found him guilty and convicted him on May 15,
2018.47 Many newspapers including “The People” published this matter. Mr.Dixit filed
for an appeal before the High Court of Dehri, where he was acquitted on December 20,
2018 as there was insufficient evidence against him.48 But the matters related to the
verdict of the trial Court, which had been overturned by the High Court was still
available on the e-newspaper portal of the newspaper.49 Hence, it is humbly contended
before the Hon’ble Court that the fundamental right to privacy of Vaibhav Dixit has
been infringed.
50¶ ‘Freedom of Press’ is regarded to be a part of the Fundamental Right of ‘Freedom of

Speech and Expression’ guaranteed by article 19(1)(a) to the citizens of Scindia. The
freedom of the media, like any other freedom has to be exercised within reasonable
boundaries. The individual who is the subject of a press or television ‘item’ might have
his or her personality, his or her reputation or career dashed to the ground after the
media exposure.50
51¶ Constitutional democracy can survive when citizens have an undiluted assurance that
the rule of law will protect their rights and liberties against any invasion by the state
44
Moot Prpo.
45
Moot Propo
46
Sec. 9, General Data Protection Regulation,2018
47
48
49
50
Art.19, Indian Constitution, 1950.

and those judicial remedies would be available to ask searching question and expect
answers when a citizen has been deprived of these, most precious rights. The
recognition of privacy as a fundamental constitutional value is part of Scindia’s
commitment to a global human rights regime. Hence Ms. Sylvia too has a fundamental
right to live with liberty, dignity and respect and a right to privacy guaranteed to him
under Article 21 of the Scindian Constitution.51
D) THERE WAS A VIOLATION OF MS. SYLVIA’S RIGHT TO PRIVACY BY

THE SEARCH ENGINS AND THE WEBPAGES:
52¶ Furthermore Ms. Sylvia while searching something on the internet, and on typing her
own name came across web links of webpages relating to her case. As Unfortunate as it
is, in our society, the victim of a sexual offence, especially a victim of rape, is treated
worse than the perpetrator of the crime. The victim is innocent since she has been
subjected to forcible sexual abuse. However, for no fault of the victim, society instead
of empathizing with the victim, starts treating her as an ‘untouchable’. A victim of rape
is treated like a “pariah” and ostracized from society. Many times, even her family
refuses to accept her back into their fold. The harsh reality is that many times cases of
rape do not even get reported because of the false notions of so called ‘honour’ which
the family of the victim wants to uphold. The victim’s first brush with justice is an
unpleasant one where she is made to feel that she is at fault; she is the cause of the
crime.52
53¶ The elements of Right to privacy as traditionally contained in the common law and in
criminal law are recognized by the Scindian Courts; these include the principles of
Scindian Penal Code, 1860, § 228A53.
54¶ Ms. Sylvia saw that as soon as she typed her name on the search engine, many web
links relating to her case instituted against Mr. Dixit popped up on her laptop screen.
Not only this, any man of ordinary prudence could easily identify her from the
webpages.
55¶ In State of Punjab v. Ramdev Singh54, the Supreme Court had observed:
51
Dr. Poonam Kataria, International Journal of Advanced Research and Development, Para.1, (2016).
52
Nipun Saxena &Anr. V. Union of India & Ors., (2012), S.C.C. 565 (India).
53
Sec 228 A, IPC 1860.
54

“We do not propose to mention the name of the victim. § 228-A of IPC makes
disclosure of the 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 §s 376, 376-A, 376-B, 376-Cor 376-D is alleged
or found to have been committed can be punished. True it is, the restriction, does
not relate to printing or publication of judgment by High Court or Supreme
Court. But keeping in view the social object of preventing social victimization or
ostracism of the victim of a sexual offence for which § 228-A has been enacted,
it would be appropriate that in the judgments, be it of this Court, High Court or
lower Court, the name of the victim should not be indicated. We have chosen to
describe her as ‘victim’ in the judgment.”
56¶ Delhi High Court imposed a penalty of Rs10 lakh each on 12 media houses for
disclosing the name and other details of the Kathua gang rape victim. On 13 April, a
bench comprising acting chief justice of the high court Gita Mittal and justice C. Hari
Shankar had taken suo-moto cognizance of the “nature and manner of reporting" of
the alleged gang rape of an eight-year-old girl in the state of Jammu & Kashmir.
While observing that the reporting by the media houses was in “absolute violation” of
law and disrespected the privacy of the victim, the court had issued notices to 12
media houses including Times of India, The Hindu, Republic TV, Indian Express, The
Week and NDTV, to show why any action against them for violation of statutory
prohibitions should not be initiated.
57¶ The Supreme Court had directed the media houses to take steps to prohibit any
disclosure of the name, address, photographs, family details, school details,
neighbourhood or any other particulars which may have an effect of leading the
disclosure of the identity of the child victim.
58¶ “The media has to circumvent in reporting to the extent it is in contravention of law.
Freedom of press has to be balanced with the integrity of the judicial process, and
must comport with the requirements of the law,” the court had observed.

4. THAT THE PETIOTIONERS HAVE THE RIGHT TO ERASURE AND

RIGHT TO BE FORGOTTEN.
4.1 THAT MR. DIXIT HAS A RIGHT TO ERASURE.
59¶ It is humbly submitted before the Hon’ble Court that both the petitioners, Mr. Dixit
and Ms. Sylvia is entitled to the right to be forgotten. The information on the e-portal
of the newspaper “The People” had published matters related to the decision of the
trial Court where he was found guilty. But after an appeal in the HC, it was
overturned. But the news portal failed to update the latest judgment and did not
remove the old verdict of the Trial Court. As the information available on the news
portal which is accessible by the common mass might affect his image and his
credibility in the market which in turn will affect his business the petitioner believes
that he has a right to have his antecedents forgotten under right to be forgotten as a
facet of right to privacy.
60¶ In the popular judgment by the European Court of Justice in 2014- Google Spain v.
Mario Costeja Gonzalez55 in which the Court ruled that European citizens had the right
to request commercial search firms such as Google to take down links to private
information that was no longer relevant .
61¶ It is evident that central to the concept of privacy is that the dignity can involve
physical solitude, mental repose physical exclusiveness or autonomy yet whatever else,
it involves freedom – the freedom against intrusion.
62¶ Mr. Dixit had a right to be forgotten under Art.17 of the General Data Protection
Regulation which states that:
1)The data subject shall have the right to obtain from the controller the erasure of
personal data concerning him or her without undue delay and the controller shall have
the obligation to erase personal data without undue delay where one of the following
grounds applies:
55
Google Spain v. Mario Costeja Gonzalez [2014] ILEC 060 CJEU(Spain).

(a) the personal data are no longer necessary in relation to the purposes for
which they were collected or otherwise processed;
(b) the data subject withdraws consent on which the processing is based
according to point (a) of Article 6(1), or point (a) of Article 9(2), and where
there is no other legal ground for the processing;
(c) the data subject objects to the processing pursuant to Article 21(1) and
there are no overriding legitimate grounds for the processing, or the data
subject objects to the processing pursuant to Article 21(2);
(d) the personal data have been unlawfully processed;
(e) the personal data have to be erased for compliance with a legal
obligation in Union or Member State law to which the controller is subject;
(f) the personal data have been collected in relation to the offer of
information society services referred to in Article 8(1).
63¶ Data protection is central to the Facebook Companies (Facebook and Messenger,
Instagram, Oculus and WhatsApp). We comply with current EU data protection law,
which includes the GDPR. Our GDPR preparations were led by our Dublin-based
data protection team and supported by the largest cross-functional team in Facebook's
history56. The social networking site Facebook which is also the owner of Instagram
and whatsapp the biggest social networking sites of the world comply with the norms
laid down by the GDPR. And have been functioning abiding by it.
64¶ In the case of Google Spain v. Mario Costeja Gonzalez57 The CJEU held that the
1995 Data Protection Directive extended to search engines by the virtue of them
being data controllers under the European law .The court upheld Gontalez’s right to
be forgotten and stated that the right of privacy of an individual trumps the interest of
the public in accessing that information, unless that presumption can be rebutted.
65¶ The Court rejected claims of Google Spain, Google Inc., the Greek, Austrian and
Polish Governments that the right to erase links that lead to lawfully obtained
information should be limited to the scenarios where a “compelling legitimate
56
GENERAL DATA PROTECTION REGULATION, FACEBOOK Business (2019),
https://www.facebook.com/business/gdpr (last visited Mar 14, 2019).
57
Google Spain v. Mario Costeja Gonzalez [2014] ILEC 060 CJEU(Spain).

ground”.They argued that the right cannot be accorded to a plaintiff on the basis of
prejudicial consequences emanating from its existence. The Court, however, held that
even accurate information obtained legally could be incompatible with the Directives
when “inadequate, irrelevant or excessive in relation to the purposes of the
processing”58
65¶ It is humbly submitted before the hon’ble Supreme court that there was a clear breach
of right to erasure of Mr. Dixit as Funbook is a French based social networking site as
France has ratified the GDPR. Right to erasure has been enshrined under art.17 of
GDPR and as asocial networking site that abides by the GDPR Funbook is entitled to
extend right to erasure to Mr. Dixit.
66¶ Furthermore Mr. Dixit’s Trial court proceeding were published in numerous
newspapers he was found guilty in the trial court but he was acquitted in the High
court due to lack of evidence, but one particular newspapers ‘The People’ had not
updated his trial court proceedings in their e-portal the news showed that he was
guilty of the charges brought against him59. This is a breach of his right to privacy.
And because his right to privacy has been breached the petitioner has a right to
erasure60. A similar petition is pending before the Delhi High Court in respect of the
same matter in the case of Laksh Vir Singh Yadav v Union of India and Ors.61. In this
case the Petitioner has requested for the removal of a judgment involving his mother
and wife from an online case database. Hence it is humbly submitted that Mr. Dixit
is entitled for right to erasure.
4.2 THAT MS. SYLVIA HAS A RIGHT TO ERASURE.

67¶ The websites as well as the search engines have violated the right to privacy, right to
dignity and right to reputation62 of Ms. Sylvia as they had display of her name
alongside personal information of the now disposed of case which marred her image,
reputation and dignity which might affect her work and the prospect of marriage.63
Given facts of the provided factsheet it is humbly contended before this hon’ble court
58
Id 57.
59
Moot Proposition, Para. 14.
60
Vasunathan v. The Registrar General (2017)S.C.C. 424.
61
Laksh Vir Singh Yadav v Union of India and Ors.,WP(C) 1021/2016 (Del).
62
Article 21, The Constitution of India.
63
Moot Proposition, Para 15.

that the petitioners have been defamed by the acts and actions done by the
Respondents, under 499 of Scindian Penal code (hereinafter referred to as IPC).
68¶ Ms. Sylvia is entitled for the right to Forgotten and right to erasure as she has been
empowered by the landmark Judgment of Vasunathan v. The Registrar General64
where The Karnataka High Court speaking through Justice Anand Bypareddy, while
passing an order in a writ petition, directed its Registry to make sure that an internet
search made in the public domain would not reflect the woman’s name in a previous
criminal order passed by the same High Court. The High Court conclusively
observed, “This is in line with the trend in Western countries of '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.” The woman’s
father had approached the Court seeking directions to mask the woman’s name in an
earlier order passed by the High Court. The petitioner had stated that his daughter
feared grave repercussions if her name was associated with her earlier case and it
would affect her relationship with her husband and also her reputation in the society.
69¶ It was considered that the endeavour of the Registry to ensure that any internet search
made in the public domain ought not to reflect the petitioners ‘daughter ‘s name in the
cause title of the order of this Court. This was held to be in line with the western
concept as a matter of rule ―Right to be forgotten in cases involving women in
general. The right to privacy has been upheld in many important cases and the belief
of the law that social stigma attached to one‘s name can lead to disruption in the well-
being of the one under attack. Human dignity was construed in M Nagraj v Union of
India65 by a Constitutional Bench to be intrinsic to and inseparable from human
existence. Dignity, the Court held, is not something which is conferred and which can
be taken away, because it is alienable.
64
Vasunathan v. The Registrar General (2017)S.C.C. 424.
65
M Nagraj v Union of India (2006) S.C.C. 212.

PRAYER
Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it
is humbly requested that this Hon’ble Court may be pleased to adjudge and declare
that:
1. The writ petition is maintainable,

2. The Information Technology (Intermediaries Guideliens) Rules, 2011 re
unconstitutional,
3. That there was a clear breach of right to privacy of the petitioner,
4. That compensation should be granted to the petitioners under Sec. 43 of Information
Technology Act, 2000,
5. That penalty should be given under Sec. 72 of Information Technology Act, 2000.
The Petitioners prays that the Court may make any such order as it may deem fit in
terms of equity, justice and due conscience. And for this petitioner shall as duty bound
ever humbly pray.
All of which respectfully submitted
(Counsel for the Respondents)

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7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION-2019

BEFORE THE HON’BLE SUPREME COURT OF SCINDIA

IN THE MATTERS OF:

WRIT PETITION NO. ___/2019

WRIT PETITION NO. ___/2019

VAIBHAV DIXIT….……………………………………………………...…. PETITIONER

WRIT PETITION NO. ___/2019

WRITTEN SUBMISSION BEHALF OF THE PETITIONERS

MEMORIALS ON BEHALF OF THE PETITIONERS

S. No. TITLE Pg. No.

MEMORIALS ON BEHALF OF THE PETITIONERS

AIR All India Reporter

F.I.R First Information Report

SCC Supreme Court Cases

U/A Under Article

MEMORIALS ON BEHALF OF THE PETITIONERS

1. M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (8th ed. 2018).

6. BLACK’S LAW DICTIONARY, (Bryan A. Garner eds. 9th ed. 2009).

1. Constitution of India, 1950.

MEMORIALS ON BEHALF OF THE PETITIONERS

MEMORIALS ON BEHALF OF THE PETITIONERS

FIR and the Trial Court Proceedings

The High Court Appeal and Acquittal

MEMORIALS ON BEHALF OF THE PETITIONERS

MEMORIALS ON BEHALF OF THE PETITIONERS

WHETHER THE WRIT PETITION FILED BY THE PETITIONERS IS

WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIARIES

WHETHER THERE IS AN INFRINGEMENT OF RIGHT TO PRIVACY OF THE

WHEATHER THE PETIOTIONERS HAVE THE RIGHT TO ERASURE AND

MEMORIALS ON BEHALF OF THE PETITIONERS

1. THAT THE WRIT PETITIONS FILED BY THE PETITIONERS ARE

2. WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIARIES

It is humbly submitted before the Hon’ble Court that the IT(Intermediary

3. WHETHER THERE IS AN INFRINGEMENT OF RIGHT TO PRIVACY OF

MEMORIALS ON BEHALF OF THE PETITIONERS

4. THAT THE PETIOTIONERS HAVE THE RIGHT TO ERASURE AND

MEMORIALS ON BEHALF OF THE PETITIONERS

1. THAT THE WRIT PETITIONS FILED UNDER ARE MAINTAINABLE.

1.1 THAT THE PETITIONERS HAVE APPROACHED THE SC UNDER

MEMORIALS ON BEHALF OF THE PETITIONERS

5¶ As the Information Technology (Intermediaries Guidelines) Rules5, 2011 violates

7¶ Article 13(2) in The Constitution of Scindia7 states that,

1.1.2 That the Petition filed by Ms. Sylvia is Maintainable.

MEMORIALS ON BEHALF OF THE PETITIONERS

1.3 ALTERNATIVE REMEDY IS NO BAR ON THE JURISDICTION OF

MEMORIALS ON BEHALF OF THE PETITIONERS

2. THAT THE INFORMATION TECHNOLOGY (INTERMEDIARIES

MEMORIALS ON BEHALF OF THE PETITIONERS

2.1 Violation of Principles of Natural Justice

3. Violative of Article 21 of Indian Constitution

MEMORIALS ON BEHALF OF THE PETITIONERS

restriction such as Section 69 allowing for interception of personal data on a computer

MEMORIALS ON BEHALF OF THE PETITIONERS

4. THAT THERE IS AN INFRINGEMENT OF RIGHT TO PRIVACY OF THE

MEMORIALS ON BEHALF OF THE PETITIONERS

34¶ Art. 21 of Scindian constitution states that,

4.1 THAT THERE WAS A VIOLATION OF RIGHT TO PRIVACY

MEMORIALS ON BEHALF OF THE PETITIONERS

A) THE RIGHTS OF VAIBHAV DIXIT HAVE BEEN VIOLATED

MEMORIALS ON BEHALF OF THE PETITIONERS

45¶ Sec. 9 of GDPR states that,

“Processing of personal data revealing racial or ethnic origin, political

B) THAT THE RIGHT TO PRIVACY OF MS. SYLVIA HAD BEEN VIOLATED