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6th Symbiosis Law School Hyderabad National Moot, 2022

Best Team Memorial - Respondent

In the Hon'ble
Supreme Court of Atlantis
In Matter of
(Article 139-A read with Article 32 of the Constitution of India)
Tanvi … Petitioner No. 1;
Versus
Government of Atlantis … Respondent No. 1;
Data Protection Authority … Respondent No. 2.
And
Friendsbook … Petitioner No. 2;
CEO of Friendsbook … Petitioner No. 3;
Versus
Government of Atlantis … Respondent No. 1;
Data Protection Authority … Respondent No. 2.
As Submitted to the Chief Justice & other puisne Judges of the Supreme Court of
Atlantis.
TABLE OF CONTENTS
LIST OF ABBREVIATIONS 4
STATUTES 7
RULES 8
CONSTITUTIONAL PROVISIONS 8
FOREIGN JUDGEMENTS 8
ARTICLES 9
STATEMENT OF JURISDICTION 10
STATEMENT OF FACTS 11
ISSUES RAISED 13
SUMMARY OF ARGUMENTS 14
ARGUMENTS ADVANCED 16
[ISSUE 1]- WHETHER THE PROVISIONS OF THE ACT ARE 16
UNCONSTITUTIONAL AND LIABLE TO BE STRUCK DOWN
[1.1] The impugned provisions pass the four-pronged test of 16
Proportionality and are therefore reasonable restrictions on the
Right to Privacy
[1.1.2] The restrictions would not disproportionately affect the 18
rights of the right holder
[1.1.3] There are adequate procedural safeguards in place 19
[1.2] The discretionary powers vested with the government are valid 20
and Constitutional as per Article 14 of the Constitution
[1.2.1] The Policy under which the discretion is to be exercised is 20
clearly expressed in the statute
[1.2.2] In arguendo absence of exhaustive or express guidelines 21
does not render the provisions unconstitutional
[1.2.4] Vesting of power in a high authority is in itself a 22
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circumstance against arbitrariness

[1.2.5] Possibility of abuse is no ground to hold a provision as ultra- 23
virus or unconstitutional
[ISSUE II] WHETHER THE POWERS CONFERRED UPONTHE 24
CENTRAL GOVERNMENT UNDER SECTION 86 OF THE ACT ARE
ARBITRARY AND THE SECTION SHOULD BE STRUCK DOWN?
[2.1] The Policy under which the discretion is to be exercised is clearly 24
expressed in the statute
[2.2] The discretion is not vague and is guided by law 25
[2.3] There is a direct nexus between the limitation placed on Tanvi 26
and Public Order
[2.4] Constitutionality of a legislation cannot be judged on the 27
assumption that the authority will act in an arbitrary manner
[ISSUE 3] — WHETHER THE DPA HAS BEEN LAW FULLY 28
ESTABLISHED UNDERTHE ACT? IF NOT, CAN THE ACTIONS OF
THE DPA STILL BE HELD VALID
[3.1] The DPA has been lawfully established under the Act 28
[3.1.1] The DPA is sufficiently independent 28 [3.1.2] The functions 29
and powers of the DPA has been laid down under the Act
[3.1.3] The DPA consists of experts in the field of Data Protection 29
[3.1.4] The provision of an Appellate Body and the Right of judicial 30
review before the High Court and Supreme Court still remain
therefore the establishment of the DPA does not oust judicial
review
[3.2] The actions of the DPA were valid under the Act 30
[ISSUE 4] WHETHER FRIENDSBOOK CAN BE HELD LIABLE UNDER 32
LAW FOR BREACH OF INTERMEDIARY RULES
[4.1] FRIENDSBOOK FAILED TO COMPLY WITH DUE DILIGENCE AS PER 32
IINTERMEDIARY RULES
[4.2] FRIENDSBOOK IS NOT QUALIFIED TO AVAIL THE EXCEPTION 33
CLAUSE OF SAFE HARBOUR. S. 79
PRAYER 35
LIST OF ABBREVIATIONS
Abbreviations Meaning
& And
¶ Paragraph
§ Section
Ors Others
AIR All India Reporter
SCC Supreme Court Cases
SC Supreme Court
v Versus
Art./art. Article
Ltd Limited
Ed Edition
Del Delhi
Comm'n Commission
Hon'ble Honourable
UOI Union of India
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INDEX OF AUTHORITIES CASES

1. ABC v. DEF, 2017 SCC OnLine Del 12861 30
2. also State of Madhya Pradesh v. Baldeo Prasad, [1961] 1 21
3. Attorney General for India v. Amratlal Prajivandas, AIR 1994 SC 15
2194
4. Attorney General for India v. Amratlal Prajivandas, AIR 1994 SC 15, 22
2194
5. Avnish Bajaj v. State (NCT of Delhi), (2005) 116 DLT 427 30
6. Beedi Works v. Union of India, (1974) 4 SCC 43 : AIR 1974 SC 17, 21
1832
7. Brahm Dutt v. Union of India, (2005) 2 SCC 431 27
8. Consumer Action Group v. State of Tamil Nadu, (2000) 7 SCC 18
425
9. D.K. Trivedi & Sons v. State of Gujarat, 1986 Supp SCC 20 : AIR 24
1986 SC 1323
10. ExArmymen's Protection Services Private Limited v. Union of 16
India, (2014) 5 SCC 409
11. Express Hotels Ltd. v. State of Gujarat, (1989) 3 SCC 677 : AIR 19
1989 SC 1949
12. Franklin. Minister of Town and Country Planning, (1947) 2 All 25
ER 299
13. GN Nayak v. Goa University, (2002) 2 SCC 712 : AIR 2002 SC 25
790
14. Google Inc. v. Equustek Solutions Inc. et al., [2017] SCC 34 29
15. Grayned v. City of Rockford, 33 L.Ed.2d 222 21
16. Harakchand Ratanchand Banthia v. Union of India, (1969) 2 21
SCC 166
17. Harishankar Bagla v. State of M.P., AIR 1954 SC 465 20
18. Harishankar v. State of U.P., AIR 1957 SC 896 17, 21
19. Hindustan Paper v. Government of Kerala, (1986) 3 SCC 398 : 18, 19
AIR 1986 SC 1541 P9-10
20. Inder Singh v. State of Rajasthan, AIR 1957 SC 510 18, 19
21. Inder Singh v. State of Rajasthan, AIR 1957 SC 510 18, 19
22. K.S. Puttaswamy v. Union of India (2018) 12 13, 14, 15
23. K.S Puttaswamy v. Union of India, (2017) 10 SCC 1 13, 14, 15
24. Kartar Singh v. State of Punjab, (1994) 3 SCC 569 22
25. Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 27
4 SCC 225
26. Kharak Singh v. Union of India, (1964) 1 SCR 332 16
27. Khare v. State of Delhi, 1950 SCR 519 20
28. L. Chandrakumar v. Union of India, (1995) 1 SCC 400 27
29. M.J. Sivani v. State of Karnataka, (1995) 6 SCC 289 : AIR 1995 18
SC 1770
30. Madhu Limaye v. D.M., AIR 1971 SC 248 15
31. Maharashtra State Electricity Board v. Kalyan Borough 18
Municipality, AIR 1968 SC 991
32. Maneklal Chhotalal v. M.G. Makwana, AIR 1967 SC 1373 18
33. Mineral Development Ltd. v. State of Bihar, AIR 1960 SC 468 17, 21
34. Mithoolal Nayak v. Life Insurance Corporation, AIR 1962 SC 814 22
35. Modern Dental College & Research Centre v. State of Madhya 13, 14, 15
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Pradesh
36. My Space Inc. v. Super Cassettes Industries Ltd., (2017) 236 30
DLT 478
37. Orient Mills v. Union of India, AIR 1963 SC 98 18, 19
38. Orient Weaving Mills v. Union of India, AIR 1963 SC 98 17, 21
39. People's Union for Civil Liberties v. Union of India, (1997) 1 SCC 16
301
40. Premium Granites v. State of T.N., AIR 1994 SC 223 18
41. Public Services Tribunal Bar v. State of U.P., (2000) 3 UPLBEC 23
2553
42. R. Rajagopal v. State of T.N., (1994) 6 SCC 632 13
43. Rama Rao v. Telega Desam, AIR 1984 AP 353 (Para 9) 15, 22
44. Rama Rao v. Telega Desam, AIR 1984 AP 353 (Para 9.) 15, 22
45. Romesh Thappar v. State of Madras, 1950 SCR 594 15, 22
46. Santokh Singh v. Delhi Administration, (1973) 1 SCC 659 : AIR 15
1973 SC 1091
47. Secy v. Muraswamy, 1988 Supp SCC 651 25
48. Sher Singh v. Union of India, (1984) 1 SCC 107 : AIR 1984 SC 18, 19
200
49. Shreya Singhal v. Union of India, (2015) 5 SCC 1 14, 21
50. Sivarajan v. Union of India, AIR 1959 SC 556 18, 19
51. State of Bihar v. Shailabala Devi, 1952 SCR 654 15, 22
52. State of Gujarat v. Krishna Cinema, (1970) 2 SCC 744 : AIR 19
1971 SC 1650
53. State of Mysore v. M.L. Nagade, (1983) 3 SCC 253 : AIR 1983 18
SC 762
54. Sukhwinder Pal Bipan Kumar v. State of Punjab, (1982) 1 SCC 18
31 : AIR 1982 SC 65
55. Supdt v. Ram Manohar, AIR 1960 SC 633 15, 22
56. Swami Ramdev v. Facebook, Inc., 2019 SCC OnLine Del 10701 29, 30
57. Viklad Coal Merchant v. Union of India, (1984) 1 SCC 619 : AIR 18, 19
1984 SC 95
58. Virendra v. State of Punjab., AIR 1957 SC 896 (901) 24
59. X v. Union of India, (2021) 280 DLT 57 30
STATUTES
Data Protection Act, 2021, § 11 No. 373, Acts of Parliament, 2021 27
(India)
Data Protection Act, 2021, § 12, 13, 14, 35 No. 373, Acts of 12, 14
Parliament, 2021 (India)
Data Protection Act, 2021, § 3(19), No. 373, Acts of Parliament, 28
2021 (India)
Data Protection Act, 2021, § 3(36) No. 373, Acts of Parliament, 27
2021 (India)
Data Protection Act, 2021, § 3(39), No. 373, Acts of Parliament, 28
2021 (India)
Data Protection Act, 2021, § 42(4), No. 373, Acts of Parliament, 26
2021 (India)
Data Protection Act, 2021, § 42(8), No. 373, Acts of Parliament, 25
2021 (India)
Data Protection Act, 2021, § 42, No. 373, Acts of Parliament, 2021 25
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(India)
Data Protection Act, 2021, § 43, No. 373, Acts of Parliament, 2021 25
(India)
Data Protection Act, 2021, § 44, No. 373, Acts of Parliament, 2021 25
(India)
Data Protection Act, 2021, § 49,51, 52, 53, No. 373, Acts of 26
Parliament, 2021 (India)
Data Protection Act, 2021, § 5(a) No. 373, Acts of Parliament, 2021 27
(India)
Data Protection Act, 2021, § 5(b) No. 373, Acts of Parliament, 2021 27
(India)
Data Protection Act, 2021, § 53(1), No. 373, Acts of Parliament, 25
2021 (India)
Data Protection Act, 2021, § 53(2), No. 373, Acts of Parliament, 25
2021 (India)
Data Protection Act, 2021, § 53(8), No. 373, Acts of Parliament, 25
2021 (India)
Data Protection Act, 2021, § 68 No. 373, Acts of Parliament, 2021 27
(India)
Data Protection Act, 2021, § 76(1), No. 373, Acts of Parliament, 27
2021 (India)
Data Protection Act, 2021, § 83, No. 373, Acts of Parliament, 2021 27
(India)
Data Protection Act, 2021, § 84(1), No. 373, Acts of Parliament, 28
2021 (India)
Data Protection Act, 2021, § 87(1), No. 373, Acts of Parliament, 21
2021 (India)
Data Protection Act, 2021, § 87, No. 373, Acts of Parliament, 2021 21, 22, 23, 24
(India)
Information Technology (Intermediary Guidelines and Digital Media 29
Ethics Code) Rules, 2021, Rule 3(1)
Information technology Act, 2000, § 69 cl A, No. 21, Acts of 16
Parliament, 2000 (India)
Information technology Act, 2000, § 79(1), No. 21, Acts of 28, 30
Parliament, 2000 (India)
Information Technology Act, 2000, § 79(2), No. 21, Acts of 30
Parliament, 2000 (India)
Information technology Act, 2000, § 79(3)(b), No. 21, Acts of 30
Parliament, 2000 (India)
Tamil Nadu Town and Country Planning Act, 1971, § 113, Act no. 18
35, Acts of Parliament, 1972 (India)
The Penal Code, 1860 29
The Information Technology Act, 2000, § 46, No. 21, Acts of 26
Parliament, 2000 (India)
RULES
Information Technology (Intermediary Guidelines and Digital Media 29
Ethics Code) Rules, 2021, Rule 2(1)(v)
Information Technology (Intermediary Guidelines and Digital Media 29
Ethics Code) Rules, 2021, Rule 3
Information Technology (Intermediary Guidelines and Digital Media 29
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Ethics Code) Rules, 2021, Rule 3(1)(d)

Information Technology (Intermediary Guidelines and Digital Media 29
Ethics Code) Rules, 2021, Rule 3(d)
Information Technology (Intermediary Guidelines And Digital Media 29
Ethics Code) Rules, 2021, Rule 4
Information Technology (Intermediary Guidelines and Digital Media 29, 30
Ethics Code) Rules, 2021, Rule 7
Information Technology (Intermediary Guidelines and Digital Media 28
Ethics Code) Rules, 2021
CONSTITUTIONAL PROVISIONS
1. INDIA CONST. art. 14 13
2. INDIA CONST. art. 19 and 21 13
3. INDIA CONST. art. 19(2) 15, 22
FOREIGN JUDGEMENTS
1. Ct Local Gout Roard v. Arlidge, [1915] A.C. 120 (132) 25
2. R. v. Antonelli, 70 JP 4 15, 22
3. R. v. Wilkes, (1770) 4 Burr 2527 : 98 ER 327 21
4. United States v. Wunderlich, 1951 SCC OnLine US SC 93 21
5. Uzun v. Germany App no 35623/05 (Application No) IHRL 1838 14
(ECHR 2010
ARTICLES
1. Lyrissa Barnett Lidsky, Incendiary Speech and social media, 44 23
Texas Tech Law Review 4 (pg 149), (2011)
https://www.scholarship.law.ufl.edu/cgi/viewcontent.cgi?
article=1216&context=facultypub
2. RODNEY D. RYDER, GUIDE TO CYBER LAWS (INFORMATION 26
TECHNOLOGY ACT, 2000
STATEMENT OF JURISDICTION
The supporters of Tanvi moved the Hon'ble Supreme Court of Atlantis under Article
32 of the Constitution of India in view of the multiple proceedings pending against her
before the Data Protection Authority and the Magistrate. The Hon'ble Supreme Court of
Atlantis decided to hear the matter and has summoned the Government of Atlantis
and the Data Protection Authority for their arguments. The Hon'ble Supreme Court also
simultaneously taken up arguments on behalf of Friendsbook in relation to their role in
the aforementioned incident by clubbing all matters before various judicial forums. The
Hon'ble Court clubbed the Writ Petition filed under Article 32 of the Constitution of
India and the matter of CEO of friendsbook pursuant to its powers under Article 139-A
of the Constituion of India
Article 139-A of the Constitution of India—
(1) “Where cases involving the same or substantially the same questions of law
are pending before the Supreme Court and one or more High Courts or before two
or more High Courts and the Supreme Court is satisfied on its own motion or on an
application made by the Attorney-General of India or by a party to any such case
that such questions are substantial questions of general importance, the Supreme
Court may withdraw the case or cases pending before the High Court or the High
Courts and dispose of all the cases itself….”
Read with
Article 32 of the Constitution of India -
“Article 32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the
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enforcement of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this
Part……”
All of which is respectfully submitted.
STATEMENT OF FACTS
BACKGROUND
The Data Protection Act, 2021 (“Act”) has been enacted in Atlantis which is a union
of states, with a form of democracy similar to that of India. There was widespread
uproar against the Act by Several news houses, political leaders, and activists because
of the sweeping powers it grants to the Government and the unchecked control it
grants to the Data Protection Authority especially the exemption it can grant to
Government agencies from being subjected to the provisions of the Act. The prime
concern was that Act does not prioritize the protection of the right to privacy of
individuals, especially with regard to the use of social media platforms.
FRIENDSBOOK : A ‘SIGNIFICANT SOCIAL MEDIA INTERMEDIARY’
The Information Technology Act, 2000 provide the Government of Atlantis the
power to regulate entities which are termed as ‘intermediaries’, as defined under the
IT Act. The Government of Atlantis had also issued the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary
Rules”), which provides for due diligence obligations of intermediaries to be eligible for
exemption from liability under law in certain cases. One such obligation under the
Intermediary Rules is for an intermediary to comply with the provisions of the Act.
‘Friendsbook’ is a platform where users can create profiles and share information
and videos etc. with one another. The platform is a success as it provides freedom
to the users to express themselves freely, without any hindrances. Friendsbook is
categorized as a ‘significant social media intermediary’ under the Intermediary
Rules. Friendsbook has also represented to the Government of Atlantis that it is
compliant with all applicable obligations under the Intermediary Rules.
POST ON FRIENDSBOOK BY TANVI
Tanvi has a profile on Friendsbook which is private, and thus the content is only
visible to select individuals. She shares a post on her profile highlighting the
unfortunate circumstances in the nation during COVID 19, also criticizing the
government about their ineffectual resolution of the current situation. The post gathers
a lot of support from her audience with multiple users liking it and sharing screenshots
on other platforms.
ARREST OF TANVI AND THE CEO OF FRIENDSBOOK
Within a day of Tanvi sharing these thoughts on her profile she is arrested by the
police in Atlantis and produced before a Magistrate who remanded her to 14-day
judicial custody without stating reasons for it. Subsequently, it is found that her post
is removed/disabled from the Friendsbook application, and her profile has been
blacklisted.
The Data Protection Authority of Atlantis takes suo moto cognizance of the incident
and starts an inquiry into the matter. They state that this has been done as per
Section 87 of the Act. In addition to arresting Tanvi, the Data Protection Authority also
arrests the Chief Executive Officer of Friendsbook since the content was shared on the
Friendsbook platform.
TANVI'S SUPPORTERS APPROACH THE HON'ble SUPREME COURT
Tanvi's supporters demand to know the reasons for her arrest and are told that it is
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in furtherance of the directive by the Government of Atlantis. They then move the
Hon'ble Supreme Court of Atlantis in view of the proceedings pending against her
before the Data Protection Authority and the Magistrate. The Hon'ble Supreme Court of
Atlantis has now decided to hear the matter and has summoned the Government of
Atlantis and the Data Protection Authority for their arguments. The Hon'ble Supreme
Court has also simultaneously taken up arguments on behalf of Friendsbook in relation
to their role in the aforementioned incident by clubbing all matters.
ISSUES RAISED
[ISSUE 1]
WHETHER PROVISIONS OF THE ACT ARE UNCONSTITUTIONAL AND
LIABLE TO BE STRUCK DOWN
[ISSUE 2]
WHETHER THE POWERS CONFERRED UNPON THE CENTRAL GOVERNMENT
UNDER SECTION 87 OF THE ACT ARE ARBITRARY AND THE SECTION SHOULD
BE STRUCK DOWN
[ISSUE 3]
WHETHER THE DATA PROTECTION AUTHORITY HAS BEEN LAWFULLY
ESTABLISHED UNDER THE ACT? IF, NOT, CAN THE ACTIONS OF THE DATA
PROTECTION AUTHORITY STILL BE HELD VALID.
[ISSUE 4]
WHETHER FREINDSBOOK CAN BE HELD LIABLE UNDER LAW FOR BREACH OF
THE INTERMEDIARY RULES
[ISSUE 1]- Whether the provisions of the act are unconstitutional and liable to
be struck down?
It is humbly submitted before this Hon'ble Court that Sections 12, 13, 14 and 35 of
the Data Protection Act, 20211 (Hereinafter, Act) are Constitutional and should not be
struck down as Firstly, the impugned provisions pass the four-pronged test of
Proportionality and are therefore reasonable restrictions on the Right to privacy under
Article 19 and 21 of the Constitution of India. (Hereinafter, Constitution) [1.1] as the
grounds of restrictions are necessary and legitimate aims [1.1.1], The restrictions
would not disproportionately affect the rights of the right holder [1.1.2], There are
adequate procedural safeguards in place [1.1.3]. Secondly, the discretionary powers
vested with the government are valid and Constitutional as per Article 14 of the
Constitution. [1.2], as the Policy under which the discretion is to be exercised is
clearly expressed in the statute [1.2.1]. In arguendo absence of exhaustive or express
guidelines does not render the provisions unconstitutional [1.2.2]. A statute can
empower the government to grant exemptions to persons from an Act [1.2.3].
Vesting of power in a high authority is in itself a circumstance against arbitrariness
[1.2.4].
[ISSUE 2]- Whether the powers conferred upon the central government under
section 87 of the act are arbitrary and the section should be struck down?
It is humbly submitted before the court that section 87 of the Act is not arbitrary
and is not liable to be struck down as firstly, The Policy under which the discretion is
to be exercised is clearly expressed in the statute. [2.1] Secondly, the discretion is
not vague and is guided by law [2.2]. Thirdly, there is a direct nexus between the
limitation placed on Tanvi and Public Order [2.3] Lastly, Constitutionality of legislation
cannot be judged on the assumption that the authority will act in an arbitrary manner.
[2.4]
[ISSUE 3] - Whether the DPA has been lawfully established under the act? if
not, can the actions of the DPA still be held valid.
It is humbly submitted before this Hon'ble Court that firstly, the DPA has been
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lawfully established under the Act [3.1], as the DPA is sufficiently independent.
[3.1.1] The functions and powers of the DPA have been explicitly laid down under the
Act. [3.1.2] The DPA consists of experts in the field of Data Protection. [3.1.3] The
provision of an Appellate Body and the Right of judicial review before the High Court
and Supreme Court still remains therefore the establishment of the DPA does not oust
judicial review [3.1.4]. Secondly, the actions of the DPA were valid under the Act.
[3.2]
[ISSUE 4]- Whether Friendsbook can be held liable under law for breach of
Intermediary Rules.
It is humbly submitted before this Hon'ble Court that Friendsbook shall not be held
liable under law for the breach of Information Technology (Intermediary Guidelines
and Digital Media Ethics Code) Rules, 2021 (Hereinafter, “Intermediary Rules”) as
Firstly, Friendsbook, as a “significant social media intermediary” failed to comply of
with the due diligence as per IT Guidelines [4.1]. Secondly, Friendsbook is not
qualified to avail the exception clause of safe harbour provided under Section 79(1) of
the Information Technology Act (Hereinafter, IT Act) [4.2]
ARGUMENTS ADVANCED
[ISSUE 1]- WHETHER THE PROVISIONS OF THE ACT ARE UNCONSTITUTIONAL
AND LIABLE TO BE STRUCK DOWN
1. It is humbly submitted before this Hon'ble Court that Sections 12, 13, 14 and 35
of the Data Protection Act, 20211 (Hereinafter, Act) are Constitutional and should not
be struck down as Firstly, the impugned provisions pass the four-pronged test of
Proportionality2 and are therefore reasonable restrictions on the Right to privacy under
Article 19 and 213 of the Constitution of India. (Hereinafter, Constitution) [1.1].
Secondly. The discretionary powers vested with the government are valid and
Constitutional as per Article 14 of the Constitution.4 [1.2]
[1.1] The impugned provisions pass the four-pronged test of Proportionality
and are therefore reasonable restrictions on the Right to Privacy.
2. It is humbly submitted that the impugned provisions pass the four-pronged test
of Proportionality5 and are therefore reasonable restrictions as Firstly, the restrictions
are warranted by a legislatively enacted law. Secondly, the grounds of restrictions are
necessary and legitimate aims. [1.1.1.] Thirdly, the restrictions would not
disproportionately affect the rights of the right holder [1.1.2.] and lastly, there are
adequate procedural safeguards in place. [1.1.3.]
[1.1.1] The grounds of restrictions are necessary and legitimate aims.
3. It is humbly Submitted before this Hon'ble Court that, the right to privacy is
protected as an intrinsic part of the right to life and personal liberty under Article 216
and as a part of the freedoms guaranteed by Part III of the Constitution.7 However,
the same is not an absolute right and is subject to reasonable restrictions.8 Any
restriction on right to privacy has to stand the test of proportionality as laid down in
the case of K.S. Puttaswamy v. Union of India9
4. It is humbly submitted that for a restriction on the right to privacy to be
reasonable it has to be “necessary for a “legitimate aim/purpose” of the state. The Test
of necessity warrants that there are no alternative less invasive measures available.10
Further, the legitimate purposes of the state would include for instance protecting
national security, preventing and investigating crime etc.11
5. In the case of Uzun v. Germany12 surveillance of a person was done to
investigate several cases of attempted murder and it was held to be a reasonable
restriction on the right to privacy as it was done to achieve legitimate goals including
national security and public safety, the prevention of crime etc.
6. It is contended that under Section 35 of the Act, The Central Government can
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exempt its departments from the provisions of the Act and allow data processing
without undertaking the safeguards provided in the Act.13 However, the same can be
done only on five narrowly tailored grounds14 including but not limited to “Security of
the state”, “Sovereignty of India” etc. which are necessary legitimate aims15 in a
democratic society. Further, Under Section 12 personal data can also be processed
without consent with an objective to provide a service or benefit to the data principal
by the state. In a social welfare state, the government embarks upon programmes
which provide benefits to marginalised sections of society. Allocation of resources for
human development is coupled with a legitimate concern that the utilisation of
resources should not be siphoned away for extraneous purposes. Therefore, it is
contended that Data mining with the object of ensuring that resources are properly
deployed to legitimate beneficiaries is a valid ground for the state to insist on the
collection of data.16 Therefore, the restrictions to the right to privacy in the form of
sections 12, 13, 14 and 35 of the Act17 are reasonable as they provide exemption on
grounds that are legitimate aims of the state.
7. Further, Sections 12, 13, 14 and 35 of the Act18 allow data processing without
consent and provide exemptions to the Central government from the Act respectively
only when it is “Necessary” therefore ensuring that the government will only take
action under the provisions in absence of any alternative less invasive measure.19
8. Therefore, it is humbly contended before this Hon'ble Court that the impugned
provisions fulfill the test of necessity and legitimate purpose as they are necessary
restrictions on the right to privacy and the powers under the impugned provisions are
exercised only for legitimate purposes of the state.
[1.1.2] The restrictions would not disproportionately affect the rights of the
right holder
9. It is humbly submitted before this Hon'ble Court that for a restriction on the
fundamental right to privacy to be reasonable must inter-alia, be the least intrusive
measure, proportional to the restriction and the privacy of an individual.20 The
proportionality principle requires balancing of the object sough to be achieved by the
restriction with the harm suffered by the individual.21
10. It is humbly contended that the Central Government under Section 35 of the
Act, can exempt its departments from the provisions of the Act and allow data
processing without undertaking the safeguards provided in the Act. However, the
same can be done only on five narrowly tailored grounds22 including but not limited to
“Security of the state”, “Sovereignty of India” etc. These grounds are a verbatim
reproduction of reasonable restrictions contained in Article 19(2).23 Further, these
grounds including Sovereignty and Integrity of India,24 Security of the state25 , Friendly
relations with foreign states26 , Public Order27 etc. have all been well defined in a
catena of judgments leaving no scope of vagueness in these terms.
11. It is submitted that even if all these grounds have not been defined in the Act
does not make it vague or liable to be struck down as every word need not be defined.
It may be a matter of judicial construction. Mere fact that a word has not been defined
is not a found to declare the provision unconstitutional.28
12. A similar worded section that is section 69(A)29 of the IT Act was also held to
be valid by this apex court in Shreya Singhal v. Union of India30 on the ground that it
was a narrowly drawn provision with several safeguards. on the ground that it was a
narrowly drawn provision with several safeguards.
13. Therefore, it is humbly submitted that the proportionality principle is fulfilled by
the impugned provision as the narrowly tailored grounds are well defined and not
vague. Therefore, they ensure balancing of the object sought to be achieved by the
restriction with the harm suffered by the individual.
[1.1.3] There are adequate procedural safeguards in place.
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14. It is humbly submitted before this Hon'ble Court that for a restriction on the
right to privacy to be reasonable there must be adequate procedural safeguards in
place. It is contended that firstly, under Section 35 when the Central government
exempts any of its agencies from the provisions of the Act, it has to give an order and
record reasons in writing.31 Further, the Government agency while processing personal
data is subject to a “just, fair, reasonable and proportionate procedure”, safeguard and
oversight mechanism.32 Therefore, it is humbly contended that the impugned
provisions provide for adequate procedural safeguards to prevent abuse of power.
15. It is to be noted that secondly, what is in the interest of national security is not
a question of law. It is a matter of policy and should be left to the executive.33 This
Apex Court has further held in PUCL v. UOI that “in absence of any provision in the
statute, it is not possible to provide for prior judicial scrutiny as a procedural
safeguard.”34
16. Therefore, whether a government agency is to be exempted from the provisions
of the Act on presence of certain grounds like security of the State etc is to be left to
the discretion and subjective satisfaction of the executive being a matter of policy.
17. Therefore, it is humbly submitted that the impugned provision apart from
providing for a sufficient mechanism of oversight also provides for other additional
procedural safeguards to prevent abuse of power by the executive.
[1.2] The discretionary powers vested with the government are valid and
Constitutional as per Article 14 of the Constitution
18. The discretionary powers vested with the government are valid and
Constitutional as per Article 14 of the Constitution as Firstly, the Policy under which
the discretion is to be exercised in clearly expressed in the statute. [1.2.1] Secondly,
in arguendo absence of exhaustive or express guidelines does not render the
provisions unconstitutional. [1.2.2] Thirdly, a statute can empower the government to
grant exemptions to persons from an Act. [1.2.3] Fourthly, vesting of power in a high
authority is in itself a circumstance against arbitrariness. [1.2.4] Lastly, Possibility of
abuse is no ground to hold a provision as ultra-virus or unconstitutional. [1.2.5]
[1.2.1] The Policy under which the discretion is to be exercised is clearly
expressed in the statute.
19. It is humbly submitted before this Hon'ble Court that when the policy35
according to which or the purpose36 for which a discretion is to be exercised by an
officer is clearly expressed in the statute, it cannot be said to be an unregulated
discretion.37 Nor can it be said to be unrestricted where the discretion is to be
exercised according to conditions38 or upon a consideration of the matters39 specified
in the statute.40
20. It is contended that in the present instance section 35 of the Act41 is not
violative of Article 1442 as it allows the Government to exempt any of its agency from
the Act however the statute has laid down a clear consideration wherein the same can
be done only on five narrowly tailored grounds including public order, security of the
state etc. Further, under section 12, 13 and 1443 data processing can be undertaken
without consent however clear grounds have been laid down including to provide a
service or benefit to the data principal by the state.
[1.2.2] In arguendo absence of exhaustive or express guidelines does not
render the provisions unconstitutional.
21. Even if wide power is given to the delegate, the same will not be ultra-virus if
guidelines can be gathered from Preamble, Objects, and other provisions of the Act.44
Absence of exhaustive guidelines for exercise of discretion will not render the provision
unconstitutional as the same can be inferred from setting up of the statute.45 Even in
the absence of express guidelines, the same can be gathered on a whole reading of
the statute, from the setting of the provision, the purpose of the Act, the preamble
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etc.46
22. It is contended that in the present instance in arguendo even if section 35
provides wide powers to the Central government to exempt any agency from the Act
and does not provide exhaustive guidelines for the exercise of the discretion, the same
cannot be held ultra-virus as guidelines can be gathered from the impugned
provisions, the preamble etc.
[1.2.3] A statute can empower the government to grant exemptions to
persons from an Act.
23. It is humbly submitted before this Hon'ble Court that it is settled law that a law
that confers power on the government to exempt any person47 from the provisions of
an act is not violative of Article 1448 if the Statute lays down a clear policy.49
24. It is pertinent to note that a similar provision under section 113 of the Tamil
Nadu Town and Country Planning Act, 197150 the Government could exempt itself from
all of the provisions of the Act, and the provision was held to be valid and that the
power was not unguided.51
25. It is submitted in the present instance section 35 of the Act52 is not violative of
Article 1453 as it allows the Government to exempt any of its agency from the Act
however the statute has laid down a clear policy wherein the same can be done only
on five narrowly tailored grounds including public order, security of the state etc.
Further, under section 12, 13 and 1454 data processing can be undertaken without
consent however clear grounds have been laid down including to provide a service or
benefit to the data principal by the state.
26. Therefore, it is humbly submitted that section 12, 13, 14 and 35 of the Act
though provide the Government with discretion exempt people from the provisions of
the Act however, the same is valid as the statute has laid down clear policies for the
exercise of this discretion.
[1.2.4] Vesting of power in a high authority is in itself a circumstance against
arbitrariness.
27. It is submitted that vesting of power on a high authority like the Government
itself is a circumstance against arbitrariness.55 It is contended that in the present
instance as well the power to allow data processing without consent under sections 12,
13, 1456 and the power to exempt government agencies from the Act under section
3557 has been delegated to the Central Government. Therefore, this in itself is a
circumstance against arbitrariness.
28. It is humbly submitted before this Hon'ble Court that it is settled law that a law
that confers power on the government to exempt any person58 from the provisions of
an act is not violative of Article 1459 if the Statute lays down a clear policy.60
29. It is pertinent to note that it was held in State of Gujarat v. Krishna Cinema
that the use of the words “absolute discretion” does not invest an authority with
arbitrary power so as to destroy the limitations to which it is subjected by its inherent
nature. The power still has to be exercised in an objective manner.61
30. It is contended that in sections 12, 13, 14 and 35 even if the discretion is
provided to the Central government, it does not invest it with arbitrary power so as to
destroy the limitations to which it is subjected by its inherent nature. It has to be
assumed that the power will be exercised in an objective manner.
[1.2.5] Possibility of abuse is no ground to hold a provision as ultra-virus or
unconstitutional
31. It is humbly Submitted before this Hon'ble Court that where the discretionary
power is valid the same cannot be held as unconstitutional on the mere possibility of
abuse of power.62 If the discretion is shown to be abused the aggrieved person shall
can have his remedy by filling a case however, the same cannot be held as a reason
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for invalidating the provision itself63

32. In the present instance as well the possibility of abuse of power granted to the
government under section 12, 13, 14 and 35 of the Act cannot be used to declare the
provisions unconstitutional.
[ISSUE II] WHETHER THE POWERS CONFERRED UPON THE CENTRAL
GOVERNMENT UNDER SECTION 86 OF THE ACT ARE ARBITRARY AND THE
SECTION SHOULD BE STRUCK DOWN?
33. It is humbly submitted before the court that section 8764 of the Act is not
arbitrary and is not liable to be struck down as firstly, The Policy under which the
discretion is to be exercised is clearly expressed in the statute. [2.1] Secondly, the
discretion is not vague and is guided by law [2.2]. Thirdly, there is a direct nexus
between the limitation placed on Tanvi and Public Order [2.3] Lastly, Constitutionality
of legislation cannot be judged on the assumption that the authority will act in an
arbitrary manner. [2.4]
[2.1] The Policy under which the discretion is to be exercised is clearly
expressed in the statute.
34. The powers imparted to the government are not arbitrary in nature. When a
monarch has unrestrained power, it is respectfully submitted before the court that
Mankind has always suffered the consequences. In this respect, the legal system
might be seen to be the most formidable foe of arbitrary decision-making 65 .
35. It is humbly submitted before this Hon'ble Court that when the policy66
according to which or the purpose67 for which a discretion is to be exercised by an
officer is clearly expressed in the statute, it cannot be said to be an unregulated
discretion.68 Nor can it be said to be unrestricted where the discretion is to be
exercised according to conditions69 or upon a consideration of the matters70 specified
in the statute.71
36. It is contended that in the present instance section 87 of the Act72 is not
violative of Article 1473 as it allows the Government to give directions to the DPA
however the statute has laid down a clear consideration wherein the same can be done
only on five narrowly tailored grounds including public order, security of the state etc.
It is contended that the government has been provided no unrestrained power, as we
can deduct from Section 87(1)74 those motivations for practising this provision have
indeed been established. which is the interest of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign States or public order.
In the present instance also, the Central government directed the DPA to inquire75 into
the incident of Tanvi's post and arrest on the ground of Public order.76
[2.2] The discretion is not vague and is guided by law
37. It is humbly argued that in conventional terms, Discretion articulated it in John
Wilkes77 , “means sound discretion guided by law “. It would be regulated by rules
rather than sense of humour : it cannot be vague, or imaginative. It is humbly
submitted before this Hon'ble Court that this Apex Court held in Shreya Singhal v.
Union of India78 , that a law can be struck down as being void for vagueness. A vague79
law impermissibly delegates basic policy matters to other authorities for resolution on
ad hoc and subjective basis,80 with the attendant dangers of arbitrary and
discriminatory application.application.
38. For the given legislation of section 8781 no fanciful, undefined or vague term
has been used in the terminology of the section in order to avoid any confusion
regarding the proper interpretation of the section. The Central government can give
directions to the DPA only on five narrowly tailored grounds82 including but not limited
to “Security of the state”, “Sovereignty of India” etc. These grounds are a verbatim
reproduction of reasonable restrictions contained in Article 19(2).83 Further, these
grounds including Sovereignty and Integrity of India,84 Security of the state85 , Friendly
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relations with foreign states86 , Public Order87 etc. have all been well defined in a
catena of judgments leaving no scope of vagueness in these terms.
39. It is submitted that even if all these grounds have not been defined in the Act
does not make it vague or liable to be struck down as every word need not be defined.
It may be a matter of judicial construction. Mere fact that a word has not been defined
is not a found to declare the provision unconstitutional.88
[2.3] There is a direct nexus between the limitation placed on Tanvi and Public
Order
40. It is a well laid down principle that “there is no reason for striking down a
provision because it confers unguided power if the power has not been exercised at all,
the unreasonableness must be found, if at all, in the exercise of that power89”.
41. It is humbly submitted that only in cases where there is a direct and proximate
relationship between the limitation and public order can it be said that it was in the
public interest90 . “The connection between the act prohibited or penalised and public
order should be intimate” 91 . In other words, legislation must have a logical and
reasonable relationship to the goal being pursued.
42. Further, “It should be noted that the Internet in general and social media in
particular amplifies the potential for speech to cause violence simply by magnifying
the opportunities for contextual dislocation”92. Herein, Tanvi's message received strong
support from her readership, with several individuals liking it, commenting about it,
and even uploading screenshots on some other media platforms,93 and the following
post sharply criticized the government for its actions during COVID times,94 bringing
into question the government's capability to safeguard the lives of its citizens,
thereafter declaring the current government incompetent to rule the nation. The wide
dissemination of the post for it being actively shared on the internet and the wide
readership available to it, thus this post could possibly cause a mass uprising as
people had shown their support towards the given post, thus there did exist a
proximate and direct connection between the post of Tanvi and the inquiry ordered
under section 87 of the Act95 on grounds of public order. For the present scenario it
can be argued that the Central government necessitated inquiry in the incident for the
reason of public order which has also been stated as one of the restrictions under
section 87(1)96 of the Act.
43. It is humbly contended before the Hon'ble court that the legal legitimacy of an
ordinary legislation may be questioned only on the basis of two factors : lack of
administrative competency and infringement of any basic constitutional rights97 . In
the present scenario, the provision of section 8& of the act in the given case is not
deficient in legislative competence because the grounds for its implementation have
been established by section 86(1) of the act. Additionally, the government has limited
the said position in accordance with (6) of Article 19 which allows for social control,
hence the above section does not violate any rights.
[2.4] Constitutionality of a legislation cannot be judged on the assumption
that the authority will act in an arbitrary manner
44. It is humbly submitted before the honourable Court that it has been held that
“where a statute confers discretionary powers upon the administrative authority, the
constitutionality of such power cannot be judged on the assumption that the executive
or such authority will act in an arbitrary manner in the exercise of the discretion
conferred upon it” 98 . “If indeed the executive or administrative authority acts
unreasonably, it violates federal constitution and may be overturned on appeal, but
the prospect of abuse or arbitrary implementation of authority doesn't really invalidate
the statute that confers such powers in the first place”99. Furthermore, in
circumstances when an authority's administrative jurisdiction is proved to be
exploited, the person injured might seek redress in such a court of law, and this might
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not be necessary to nullify the act100 .

45. It is therefore argued before the humble court that, a mere possibility of
Section 87101 of the Act being misused, abused, or applied arbitrarily does not
establish its unconstitutionality, thereby preventing its repeal.
[ISSUE 3] - WHETHER THE DPA HAS BEEN LAWFULLY ESTABLISHED UNDER
THE ACT? IF NOT, CAN THE ACTIONS OF THE DPA STILL BE HELD VALID
46. It is humbly submitted before this Hon'ble Court that firstly, the DPA has been
lawfully established under the Act [3.1] Secondly, the actions of the DPA were valid
under the Act. [3.2]
[3.1] The DPA has been lawfully established under the Act
47. It is humbly submitted before this Hon'ble Court that the DPA has been lawfully
established under the Act as Firstly, the DPA is sufficiently independent. [3.1.1]
Secondly, the functions and powers of the DPA has been explicitly laid down under the
Act. [3.1.2] Thirdly, The DPA consists of experts in the field of Data Protection.
[3.1.3] Lastly, the provision of an Appellate Body and the Right of judicial review
before the High Court and Supreme Court still remain therefore the establishment of
the DPA does not oust judicial review. [3.1.4]
[3.1.1] The DPA is sufficiently independent
48. “Bias” means the predisposition to decide in favour or against a particular party
disregarding the merits in a case.102 It means “partiality or preference”. “A person or
authority required to act in a judicial or quasi-judicial matter must act impartially”103.
‘Bias,’ as argued before the court, means a deviation from the ideal of impartial justice
that the law requires of individuals who possess a quasi-judicial position. It was held
that “The reason for this clearly is that having to adjudicate, he must come to his
adjudication with an independent mind, without any inclination or bias towards one
side or other.104 ”.
49. It is submitted that the Act regulates both Data Processing by Government
agencies and private bodies. The DPA is empowered to appoint inquiry officers105 and
further, inquire and adjudicate complaints filed before it or on suo moto action.106 The
inquiry officer appointed further, has the powers of a civil court in matters of search
and seizure etc.107 Therefore, the committee is a quasi-judicial body with powers of
inquiry and adjudication. In the present instance under section 42 of the Act108 , a
selection committee is established to appoint members of the DPA. The Selection
Committee consists of an independent expert, a director of any IIT and IIM each which
in totality would constitute almost half of the quorum. This would ensure the
independence of the DPA as the DPA will be impartial.
50. Further, it is contended that the independence of the DPA is protected through
various provisions in the Act and is not drawn from the composition of the selection
committee alone. Under section 42(3) of the Act the selection committee is to follow a
prescribed procedure for appointment and cannot arbitrarily appoint anyone on their
whims and fancies.109 Further, section 42(4) provides that the chairperson and
members of the Authority shall be experts not having less than ten years’ experience
in the field of data protection. Any member of the authority is also not allowed to have
any employment under the Government of India.110 Further, the removal of the
members is also to be done by the central government based on six grounds explicitly
provided under the statute.111
Therefore, it is humbly, submitted that the overall scheme and provisions regarding
the appointment, structure and removal of the members of the DPA ensure its
independence.
[3.1.2] The functions and powers of the DPA has been laid down under the
Act.
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51. It is humbly submitted before this Hon'ble Court that the functions and powers
of a statutory authority must be clearly laid down under the statute.
It is humbly submitted before this Hon'ble Court that the functions, powers and the
conditions for exercise of those powers of the Data Protection Authority have been
explicitly laid down under the Act112 leaving no scope for arbitrary exercise of powers.
[3.1.3] The DPA consists of experts in the field of Data Protection
52. It is humbly submitted before this Hon'ble Court that as per the roles and
duties of the DPA,113 the DPA would need to consist of members who are specialists or
experts in the field of Data Protection.
It is also humbly submitted before this Hon'ble Court that in the Information
Technology Act, 2000114 - the adjudicating officer is not an officer from any judicial
body as the task needs the officer to be a specialist or expert in the field.115
53. It is contended that section 42(4) provides that the chairperson and members
of the Authority shall be experts not having less than ten years’ experience in the field
of data protection.116 Thus, it is humbly submitted that the DPA is a quasi-judicial cum
regulatory authority that requires expertise in the field and the same is mandated by
the Act as well ensuring the independence and competency of the Authority.
[3.1.4] The provision of an Appellate Body and the Right of judicial review
before the High Court and Supreme Court still remain therefore the
establishment of the DPA does not oust judicial review.
54. It is humbly submitted before this Hon'ble Court the Right to judicial review
falls under the basic structure of the Constitution117 and lies with the Courts of
Records.118 Further, as recognised in the case of Brahm Dutt v. Union of India,119 the
Supreme Court accepted that the Appellate Body is a completely adjudicatory body
and has the final word.120
55. Thus, it is contended that the fact that there lies provision of an Appellate
Authority121 along with a statutory appeal to the Supreme Court122 is vocative of the
fact that there lies no usurpation of judicial power as per the provisions of
administrative law.
[3.2] The actions of the DPA were valid under the Act
56. It is humbly submitted that data processing is defined under the Act as a set of
operations that performed on personal data including collection recording, disclosure
by transmission, dissemination or otherwise making available.123 The Act provides that
data processing must be done ensuring the privacy of the Data Principal,124 and for the
purpose consented to by the Data principal.125 Further, consent must be given by the
data Principal.126 However, it is submitted that in the present factual matrix Tanvi
posted some content on Friendsbook on her private account which is only visible to
select individuals.127 However, the screenshots of the same were put on other
platforms.128 Therefore, that personal data of Tanvi was disseminated without her
consent and without due regard to her privacy. It also posed a threat to public order.
Thus, freindsbook is liable under the Act for not complying with its obligations.
57. It humbly submitted before this Hon'ble Court that under the Act intentional re
-identification of personal data without the consent of the Data processor, that has
been de-identified by a data processor is a punishable offence129 which is cognizable
and non-bailable.130 That is when a data fiduciary may reverse the process of de-
identification.131 De-identification is when a data processor may remove or mask
identifiers from personal data.132 It is submitted that in the present instance Tanvi
Posted the alleged content on Friendsbook133 platform that is a significant social media
intermediary134 which are covered under the Guidelines and Digital Media Ethics Code
Rules, 2021 (“Intermediary Rules”). Therefore, they had to comply with the provisions
of the Act as well however they failed to do so.135 As Tanvi's account is private the
content she posts is only visible to select users.136 However, the post gathers a lot of
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support from her audience with multiple users liking it, engaging with it, and even
sharing screenshots on other platforms.137 Therefore, her personal data that is her
opinion that she posted on Friendsbook was screenshotted and posted on other
platforms. This led to reidentification of her personal data. As this was done on the
Friendsbook platform, the CEO of Friendsbook can be held liable under the act as the
same was done with his knowledge.
58. Therefore, it is humbly submitted that the action of arrest of CEO of
Friendsbook by the DPA was valid.
[ISSUE 4] WHETHER FRIENDSBOOK CAN BE HELD LIABLE UNDER LAW FOR
BREACH OF INTERMEDIARY RULES
59. It is humbly submitted before this Hon'ble Court that Friendsbook shall not be
held liable under law for the breach of Information Technology (Intermediary
Guidelines and Digital Media Ethics Code) Rules, 2021138 (Hereinafter, “Intermediary
Rules”) as Firstly, [4.1] Friendsbook, as a “significant social media intermediary”
failed to comply of with the due diligence as per IT Guidelines and Secondly, [4.2]
Friendsbook is not qualified to avail the exception clause of safe harbour provided
under Section 79(1) of the Information Technology Act.139 (Hereinafter, IT Act)
[4.1] FRIENDSBOOK FAILED TO COMPLY WITH DUE DILIGENCE AS PER
IINTERMEDIARY RULES.
60. It is humbly submitted before this Hon'ble court that a “significant social media
intermediary”140 is obligated to comply with the due diligence rules141 along with other
obligations142 as provided under Part II of the said Intermediary Rules. It is to be
noted that Friendsbook, being a “significant social media intermediary”143 shall comply
with same in accordance with law. (¶59) It is submitted that the rules provide that an
intermediary “shall not host, store or publish any unlawful information”144 that is, at
that time, prohibited under law as given under the Intermediary Rules145 . In case of
presence of any such prohibited content on its platform, the intermediary, as per the
Intermediary rules, is required to “remove or disable access” to such content, within
thirty-six hours of the receipt of “actual knowledge”146 by the court or “appropriate
government agencies”147 .
It is humbly submitted that under Rule 7148 , failure of the intermediary to comply
with the 2021 guidelines and their omission thereof would expose them to punishment
under the IT Act and also the Penal Code, 1860.149
61. It is humbly submitted that in Swami Ramdev v. Facebook, Inc150 , the Hon'ble
Delhi High Court held that “The removal and disablement have to be complete in
respect of the cause over which this Court has jurisdiction. It cannot be limited or
partial in nature…”. The question of removing/disabling content globally has also been
recognised internationally151 .
62. In the present factual matrix, although it is contended that the unlawful post
was removed by the intermediary in question, it was unable to curb access to its
copies and disable the content wholly as there was continuance of the presence of the
objectionable material on this as well as other platforms152 . In the present factual
matrix, although it is contended that the unlawful post was removed by the
intermediary in question, it was unable to curb access to its copies and disable the
content wholly as and also the removal took place after three days of publication of the
post.
[4.2] FRIENDSBOOK IS NOT QUALIFIED TO AVAIL THE EXCEPTION CLAUSE OF
SAFE HARBOUR. S. 79
63. It is humbly submitted before this Hon'ble Court that Section 79153 of the IT
Act provides for the exemption clause of the intermediaries from the liability for third
party actions on its platform154 “subject to the provisions of sub-sections (2) and (3)”.
The exemption clause is subject to compliance of the intermediary with due diligence
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under the Intermediary Rules. (¶ 63) It is to be noted that while interpreting Section
79(1), of the IT Act155 the Hon'ble Court held the view that the “disabling and blocking
of access has to be from the computer resource, and such resource includes a
computer network, i.e., the whole network and not a mere (geographically) limited
network.”156
64. In the case of ABC v. DEF157 , an order was passed by the court that directed the
intermediaries so concerned to remove the objectionable content from and not limited
to any account.
65. The proviso158 to the safe harbour clause, lays that on “actual knowledge”, the
intermediary “removes or disables access” to the objectionable material, failing which
it would exhaust its option to avail exception159 . This does not put pre-screening
obligations160 upon the intermediaries, rather aims to efficiently filter the unlawful
content on such platforms.
66. It is furthermore submitted that non-compliance with the rules and guidelines
would make the non-compliant intermediary liable to the forfeiture of the exemption
clause161 as has been mentioned in Rule 7162 of the Intermediary rules.163
67. It is therefore submitted that as the post was removed from the platform three
days after the content was published, it is violative of the intermediary guidelines.
Further, Friendsbook failed to remove or disable access to the post completely, given
its presence on other platforms also. Therefore, it is contended that Friendsbook
cannot avail the exception of safe harbour and dodge liability therein.
PRAYER
In the light of the facts presented, issues raised, arguments advanced, and
authorities cited, it is humbly prayed before this Hon'ble Court that it may be pleased
to:
A. Declare that, Sections 12, 13, 14 and 35 of the Data Protection Act, 2021
is intra-virus the Constitution of India.
B. Declare that, Sections 87 of the Data Protection Act, 2021 is not arbitrary
and in consonance with Art. 14 of the Constitution of India, and thereby,
is Constitutional.
C. Hold that, the Data Protection Authority has been lawfully established
under the Data Protection Act, 2021.
D. Hold that, the actions of the Data Protection Authority are valid under
the Data Protection Act, 2021.
E. Hold that, Friendsbook is liable under the law for breach of Intermediary
Rules, 2021.
AND/OR
Pass any other order, which the court may deem fit in the interest of
justice, equity and good conscience.
And for this act of kindness the Respondent shall forever be duty bound.
Date:**
Place : New Delhi.
Sd/-
Counsels on behalf of Respondents
———
1 Data Protection Act, 2021, § 12, 13, 14, 35 No. 373, Acts of Parliament, 2021 (India).
2K.S Puttaswamy v. Union of India, (2017) 10 SCC 1. See also K.S. Puttaswamy v. Union of India, (2018) 12
Scale 1.
3
INDIA CONST. art. 19 and 21.
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4 INDIA CONST. art. 14.

5 K.S Puttaswamy v. Union of India, (2017) 10 SCC 1.
6 INDIA CONST. art. 21.

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

8 K.S Puttaswamy v. Union of India, (2017) 10 SCC 1. See also R. Rajagopal v. State of T.N., (1994) 6 SCC 632
(India).
9
K.S Puttaswamy v. Union of India, (2017) 10 SCC 1.
10K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. See also K.S. Puttaswamy v. Union of India, (2018) 12
Scale 1. See also Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.
11 K.S Puttaswamy v. Union of India, (2017) 10 SCC 1.
12 Uzun v. Germany App no 35623/05 (Application No) IHRL 1838 (ECHR 2010)

13 Data Protection Act, 2021, § 35 No. 373, Acts of Parliament, 2021 (India).
14 Shreya Singhal v. Union of India, (2015) 5 SCC 1.
15 K.S Puttaswamy v. Union of India, (2017) 10 SCC 1.

16 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (Para 181).

17 Data Protection Act, 2021, § 12, 13, 14, 35 No. 373, Acts of Parliament, 2021 (India).
18 Data Protection Act, 2021, § 12, 13, 14, 35 No. 373, Acts of Parliament, 2021 (India).

19K.S Puttaswamy v. Union of India, (2017) 10 SCC 1. See also K.S. Puttaswamy v. Union of India, (2018) 12
Scale 1. Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.
20K.S Puttaswamy v. Union of India, (2017) 10 SCC 1. See also K.S. Puttaswamy v. Union of India, (2018) 12
Scale 1. Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.
21K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. See also K.S. Puttaswamy v. Union of India, (2018) 12
Scale 1. Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.
22 Shreya Singhal v. Union of India, (2015) 5 SCC 1
23 INDIA CONST. art. 19(2)
24 Rama Rao v. Telega Desam, AIR 1984 AP 353 (Para 9.)

25
Attorney General for India v. Amratlal Prajivandas, (1994) 5 SCC 54 : AIR 1994 SC 2179. See also State of
Bihar v. Shailabala Devi, 1952 SCR 654. See also Santokh Singh v. Delhi Administration, (1973) 1 SCC 659 : AIR
1973 SC 1091.
26
R. v. Antonelli, 70 JP 4.
27 Romesh Thappar v. State of Madras, 1950 SCR 594. See also Supdt v. Ram Manohar, AIR 1960 SC 633. See
also Madhu Limaye v. D.M., (1970) 3 SCC 746 : AIR 1971 SC 2486.
28
2 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 2337, (2007).
29 Information technology Act, 2000, § 69 cl A, No. 21, Acts of Parliament, 2000 (India)
30 Shreya Singhal v. Union of India, (2015) 5 SCC 1.
31 Data Protection Act, 2021, § 35 (ii) No. 373, Acts of Parliament, 2021 (India).
32 Data Protection Act, 2021, § 35 (ii) No. 373, Acts of Parliament, 2021 (India).
33ExArmymen's Protection Services Private Limited v. Union of India, (2014) 5 SCC 409. See also Digi Cable
Network (India) Pvt. Ltd. v. Union of India. See also Nisha Priya Bhatia v. Union of India.
34People's Union for Civil Liberties v. Union of India, (1997) 1 SCC 301. See also Kharak Singh v. Union of India,
(1964) 1 SCR 332.
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35 Orient Weaving Mills v. Union of India, AIR 1963 SC 98.

36 Virendra v. State of Punjab.

37 Harishankar v. State of U.P., AIR 1957 SC 896.

38 Mineral Development Ltd. v. State of Bihar, AIR 1960 SC 468.
39 Beedi Works v. Union of India, (1974) 4 SCC 43 : AIR 1974 SC 1832.

40 Orient Weaving Mills v. Union of India, AIR 1963 SC 98.

41 Data Protection Act, 2021, § 35, No. 373, Acts of Parliament, 2021 (India).
42
INDIA CONST. art. 14
43 Data Protection Act, 2021, § 12, 13, 14, No. 373, Acts of Parliament, 2021 (India).
44 State of Mysore v. M.L. Nagade, (1983) 3 SCC 253 : AIR 1983 SC 762.
45
Premium Granites v. State of T.N., AIR 1994 SC 223.
46 M.J. Sivani v. State of Karnataka, (1995) 6 SCC 289 : AIR 1995 SC 1770. See also Maharashtra State
Electricity Board v. Kalyan Borough Municipality, AIR 1968 SC 991. See also Maneklal Chhotalal v. M.G. Makwana,
AIR 1967 SC 1373. See also Sukhwinder Pal Bipan Kumar v. State of Punjab, (1982) 1 SCC 31 : AIR 1982 SC 65.
47 Inder Singh v. State of Rajasthan, AIR 1957 SC 510.
48 INDIA CONST. art. 14
49
Hindustan Paper v. Government of Kerala, (1986) 3 SCC 398 : AIR 1986 SC 1541 P9-10. See also Sher Singh
v. Union of India, (1984) 1 SCC 107 : AIR 1984 SC 200. See also Viklad Coal Merchant v. Union of India, (1984) 1
SCC 619 : AIR 1984 SC 95. See also, Sivarajan v. Union of India, AIR 1959 SC 556. See also, Orient Mills v. Union
of India, AIR 1963 SC 98.
50 Tamil Nadu Town and Country Planning Act, 1971, § 113, Act no. 35, Acts of Parliament, 1972 (India).
51 Consumer Action Group v. State of Tamil Nadu, (2000) 7 SCC 425.
52
Data Protection Act, 2021, § 35, No. 373, Acts of Parliament, 2021 (India).
53 INDIA CONST. art. 14
54 Data Protection Act, 2021, § 12, 13, 14, No. 373, Acts of Parliament, 2021 (India).
55
Express Hotels Ltd. v. State of Gujarat, (1989) 3 SCC 677 : AIR 1989 SC 1949.
56 Data Protection Act, 2021, § 12,13,14 No. 373, Acts of Parliament, 2021 (India).
57 Data Protection Act, 2021, § 35, No. 373, Acts of Parliament, 2021 (India).
58
Inder Singh v. State of Rajasthan, AIR 1957 SC 510.
59 INDIA CONST. art. 14
60Hindustan Paper v. Government of Kerala, (1986) 3 SCC 398 : AIR 1986 SC 1541 P9-10. See also Sher Singh
v. Union of India, AIR 1984 SC 2006. See also Viklad Coal Merchant v. Union of India, (1984) 1 SCC 619 : AIR
1984 SC 95. See also, Sivarajan v. Union of India, AIR 1959 SC 556. See also, Orient Mills v. Union of India, AIR
1963 SC 98.
61
State of Gujarat v. Krishna Cinema, (1970) 2 SCC 744 : AIR 1971 SC 1650.
62 Khare v. State of Delhi, 1950 SCR 519.
63 Harishankar Bagla v. State of M.P., AIR 1954 SC 465.
64
Data Protection Act, 2021, § 12, 13, 14 No. 373, Acts of Parliament, 2021 (India).
65 United States v. Wunderlich, 1951 SCC OnLine US SC 93.
66 Orient Weaving Mills v. Union of India, AIR 1963 SC 98.
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67
Virendra v. State of Punjab.
68 Harishankar v. State of U.P., AIR 1957 SC 896.
69 Mineral Development Ltd v. State of Bihar, AIR 1960 SC 468.
70
Beedi Works v. Union of India, (1974) 4 SCC 43 : AIR 1974 SC 1832.
71 Orient Weaving Mills v. Union of India, AIR 1963 SC 98.
72
Data Protection Act, 2021, § 87, No. 373, Acts of Parliament, 2021 (India).
73
INDIA CONST. art. 14
74
Data Protection Act, 2021, § 87(1), No. 373, Acts of Parliament, 2021 (India).
75 Moot proposition ¶ 7
76
Moot proposition ¶ 5,6
77
R. v. Wilkes, (1770) 4 Burr 2527 : 98 ER 327.
78 Shreya Singhal v. Union of India, (2015) 5 SCC 1.
79
Grayned v. City of Rockford, 33 L.Ed.2d 222. See also State of Madhya Pradesh v. Baldeo Prasad, (1961) 1
SCR 970. See also Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166.
80
Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
81
Data Protection Act, 2021, § 87, No. 373, Acts of Parliament, 2021 (India).
82
Shreya Singhal v. Union of India, (2015) 5 SCC 1
83
INDIA CONST. art. 19(2)
84
Rama Rao v. Telega Desam, AIR 1984 AP 353 (Para 9.)
85
Attorney General for India v. Amratlal Prajivandas, AIR 1994 SC 2194. See also State of Bihar v. Shailabala
Devi, 1952 SCR 654. See also Santokh Singh v. Delhi Administration, (1973) 1 SCC 659 : AIR 1973 SC 1091
86 R. v. Antonelli, 70 JP 4.
87 Romesh Thappar v. State of Madras, 1950 SCR 594. See also Supdt v. Ram Manohar, AIR 1960 SC 633. See
also Madhu Limaye v. D.M., (1970) 3 SCC 746 : AIR 1971 SC 2486
88
2 DURGA DAS BASU, COMMENTARY ON T HE CONSTITUTION OF INDIA 2337, (2007).
89 Seervai, Constitutional Law of India pg-249 (1967).
90
Mithoolal Nayak v. Life Insurance Corporation, AIR 1962 SC 814.
91
Supdt. Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633
92 Lyrissa Barnett Lidsky, Incendiary Speech and social media, 44 Texas Tech Law Review 4 (pg 149), (2011)
https://www.scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1216&context=facultypub.
93 Moot proposition ¶ 6
94
Moot proposition ¶ 5
95 Data Protection Act, 2021, § 87, No. 373, Acts of Parliament, 2021 (India).
96 Data Protection Act, 2021, § 87, No. 373, Acts of Parliament, 2021 (India).
97 Public Services Tribunal Bar v. State of U.P., (2000) 3 UPLBEC 2553.
98 D.K. Trivedi & Sons v. State of Gujarat, 1986 Supp SCC 20 : AIR 1986 SC 1323.
99 Id.
100 Virendra v. State of Punjab, AIR 1957 SC 896 (901).
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101 Data Protection Act, 2021, § 87, No. 373, Acts of Parliament, 2021 (India).
102 Secy v. Muraswamy, 1988 Supp SCC 651.
103 GN Nayak v. Goa University, (2002) 2 SCC 712 : AIR 2002 SC 790.

104 Ct Local Gout Roard v. Arlidge, [1915] A.C. 120 (132). See also Franklin. Minister of Town and Country
Planning, (1947) 2 All ER 299.
105 Data Protection Act, 2021, § 53(2), No. 373, Acts of Parliament, 2021 (India).
106
Data Protection Act, 2021, § 53(1), No. 373, Acts of Parliament, 2021 (India).
107 Data Protection Act, 2021, § 53(8), No. 373, Acts of Parliament, 2021 (India).
108 Data Protection Act, 2021, § 42, No. 373, Acts of Parliament, 2021 (India).
109
Data Protection Act, 2021, § 42(8), No. 373, Acts of Parliament, 2021 (India).
110 Data Protection Act, 2021, § 43, No. 373, Acts of Parliament, 2021 (India).
111 Data Protection Act, 2021, § 44, No. 373, Acts of Parliament, 2021 (India).
112
Data Protection Act, 2021, § 49,51, 52, 53, No. 373, Acts of Parliament, 2021 (India).
113 Data Protection Act, 2021, § 49, 51, 52, 53, No. 373, Acts of Parliament, 2021 (India).
114 The Information Technology Act, 2000, § 46, No. 21, Acts of Parliament, 2000 (India)
115
RODNEY D. RYDER, GUIDE TO CYBER LAWS (INFORMATION TECHNOLOGY ACT, 2000, E-COMMERCE, DATA
PROTECTION & THE INTERNET) 1025 (WADHWA NAGPUR 2007).

116 Data Protection Act, 2021, § 42(4), No. 373, Acts of Parliament, 2021 (India).
117 Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225.
118 L. Chandrakumar v. Union of India, (1995) 1 SCC 400.

119 Brahm Dutt v. Union of India, (2005) 2 SCC 431.

120 Id.
121 Data Protection Act, 2021, § 68 No. 373, Acts of Parliament, 2021 (India).
122 Data Protection Act, 2021, § 76(1), No. 373, Acts of Parliament, 2021 (India).
123 Data Protection Act, 2021, § 3(36) No. 373, Acts of Parliament, 2021 (India).
124
Data Protection Act, 2021, § 5(a) No. 373, Acts of Parliament, 2021 (India).

125 Data Protection Act, 2021, § 5(b) No. 373, Acts of Parliament, 2021 (India).
126 Data Protection Act, 2021, § 11 No. 373, Acts of Parliament, 2021 (India).
127 Moot Proposition ¶ 5
128 Moot Proposition ¶ 6
129 Data Protection Act, 2021, § 83, No. 373, Acts of Parliament, 2021 (India).
130
Data Protection Act, 2021, § 84(1), No. 373, Acts of Parliament, 2021 (India).
131 Data Protection Act, 2021, § 3(39), No. 373, Acts of Parliament, 2021 (India).
132 Data Protection Act, 2021, § 3(19), No. 373, Acts of Parliament, 2021 (India).
133 Moot proposition ¶ 5
134 Moot proposition ¶ 4
135 Moot proposition ¶ 3
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136 Moot proposition ¶ 5

137 Moot proposition ¶ 6
138 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
139 Information technology Act, 2000, § 79(1), No. 21, Acts of Parliament, 2000 (India).
140 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 2(1)(v).
141 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3.
142 Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021, Rule 4.

143 Moot Proposition ¶ 4

144 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3(1)(d).
145 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3(1).

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

147 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3(d).
148 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 7.
149
The Penal Code, 1860.
150 Swami Ramdev v. Facebook, Inc, 2019 SCC OnLine Del 10701.
151 Google Inc. v. Equustek Solutions Inc. et al., [2017] SCC 34.
152
Moot Proposition ¶ 6
153 Information Technology Act, 2000, § 79(2), No. 21, Acts of Parliament, 2000 (India).
154 Avnish Bajaj v. State (NCT of Delhi), (2005) 116 DLT 427.
155
Information Technology Act, 2000, § 79(1), No. 21, Acts of Parliament, 2000 (India).
156
Swami Ramdev v. Facebook, Inc, 2019 SCC OnLine Del 10701.
157 ABC v. DEF, 2017 SCC OnLine Del 12861.
158
Information Technology Act, 2000, § 79(3)(b), No. 21, Acts of Parliament, 2000 (India).
159 Shreya Singhal v. Union of India, (2015) 5 SCC 1.
160 My Space Inc. v. Super Cassettes Industries Ltd., (2017) 236 DLT 478.
161
Information technology Act, 2000, § 79(1), No. 21, Acts of Parliament, 2000 (India).
162 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 7.
163 X v. Union of India, (2021) 280 DLT 57.

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