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-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

TEAM CODE: MMC-22

IN THE HONOURABLE SUPREME COURT OF SCINDIA

IN THE MATTER OF

W.P. (CIVIL) No. _____Of 2017

Mr. VAIBHAV DIXIT……………………………………………………..PETITIONER-1

Vs.
FUNBOOK & UNION OF SCINDIA ……………………….….RESPONDENTS-1&2
AND
W.P. (CIVIL) No. _____Of 2018

Ms. SYLVIA………………………………………………………………...PETITIONER-2
L Vs.
SEARCH ENGINE……………………………………………………RESPONDENT-3

CLUBBED WITH
W.P. (CIVIL) No. _____Of 2018
Mr. VAIBHAV DIXIT…………………………………………………….PETITIONER-3
Vs.
THE PEOPLE..............................................................................…..RESPONDENT-4
[PETITION UNDER ARTICLE 32 R/W ARTICLE 139A OF THE CONSTITUTION
OF SCINDIA]
BEFORE SUBMISSION TO
THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF
THE HONOURABLE SUPREME COURT OF SCINDIA

-MEMORANDUM ON BEHALF OF THE RESPONDENTS-


-DRAWN AND FILED BY THE COUNSELS FOR THE RESPONDENTS
-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

-TABLE OF CONTENTS-

S. NO. PARTICULARS PAGE NO.


1. LIST OF ABBREVIATIONS 3
2. INDEX OF AUTHORITIES 4-5
3. STATEMENT OF JURISDICTION 6
4. STATEMENT OF FACTS 7-8
5. STATEMENT OF ISSUES 9
6. SUMMARY OF ARGUMENTS 10-11
7. ARGUMENTS ADVANCED 12-24

I. THE NON-ERASURE OF THE SENSITIVE


PERSONAL DATA BY FUNBOOK WAS NOT A
VIOLATION OF THE FUNDAMENTAL RIGHT
12-16
TO PRIVACY.

I.I RIGHT TO PRIVACY NOT AN ABSOLUTE RIGHT I.E.


INTRUSIONS CAN BE APPLIED

I.II DUTY OF FUNBOOK UNDER LEGAL REQUEST

I.III RIGHT TO STORE DATA


17-20
I.IV. MONEY LAUNDERING- A SOCIO-ECONOMIC
OFFENCE

I.V RIGHT TO ACCESS DATA

II. THE INTERMEDIARY GUIDELINES OF


INFORMATION TECHNOLOGY RULES, 2011
IS CONSTITUTIONALLY VALID.

II.I URGENT NEED OF THE RULES

II.II. CENTRAL GOVERNMENT HAS THE AUTHORITY TO


INTERCEPT IN INFORMATION

II.III. SECURE ELECTRONIC RECORDS AND SECURE

III. THE AVAILABILITY OF THE NEWS IN THE


PUBLIC DOMAIN IN DIGITAL FORM 20-22
RELATING TO THE ALLEGED RAPE IS NOT

-Written Submission on Behalf of the Respondents- 1 | Page


-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

A VIOLATION OF FUNDAMENTAL RIGHTS.


III.I. TRUTH- AN EXCEPTION

III.II DUTY OF PRESS

III.III. BROAD SPECTRUM OF ONLINE DATABASE

III.IV.PURPOSE OF PUBLICATION
IV. THE DISCLOSURE OF THE IDENTITY OF 22-24
MS. SYLVIA BY SEARCH ENGINES IS NOT A
VIOLATION OF THE SAFEGUARDS
PROVIDED BY LAW.

IV.I. ROBUST METHODOLOGY

IV.II.ABSENCE OF MALAFIDE INTENTION

IV.III.THERE CAN BE NO CRIMINAL LIABILITY WITHOUT


‘MENS REA’

8. PRAYER FOR RELIEF 25

-Written Submission on Behalf of the Respondents- 2 | Page


-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

-LIST OF ABBREVIATIONS-

S.No. ABBREVIATION EXPANSION

1. & And

2. § Section

3. ¶ Paragraph

4.. Art. Article

5. A.I.R All India Reporter

6. the Constitution The Constitution of Scindia

7. Ed. Edition

8. Hon’ble Honorable
The Information Technology
(Intermediaries guidelines) rules 2011.
7. IT Act

12. SC Supreme Court

13. SCC Supreme Court Cases

14. u/s Under Section.

15. v. Versus

-Written Submission on Behalf of the Respondents- 3 | Page


-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

-INDEX OF AUTHORITIES-

-TABLE OF CASES-
1. R. Rajagopal v. State of T.N (1994) 6 SCC 632

2. Mr. ‘X’ v. Hospital ‘Z APPEAL (civil)4641 0F 1998


3. Francis Coralie Mullin v. The Administrator, Union territory of Delhi and others
AIR 1981 SC 746

4. Chahagan Chandrakant Bhujbal v. Union of India, 2016 SCC OnLine Bom 938

5. Gobind vs State of MP 1975 AIR 1378

6. PUCL vs Union of India AIR 1997 SC 568,1997 (1) UJ 187 SC (India).

7. Alexander v. N.E. Rly; (1865) 6 B&S 340

8. Bholu Ram v. State of Punjab (2008) 9 SCC 140.

9. Brend v. Wool, (1946) 62 T.L.R. 462-463

10. Harding v. Prince, (1948) All E.R 283

11. United States v. Cordoba-Hincapie, 825 F. Supp. 485, 495 (E.D.N.Y. 1993).

-STATUTES REFERRED-

1. SCINDIAN PENAL CODE, 1860

2. THE CONSTITUTION OF SCINDIA, 1950.

3. INFORMATION TECHNOLOGY ACT, 2000


4. INFORMATION TECHNOLOGY(INTERMEDIARIES GUIDELINES) RULE, 2011.

-Written Submission on Behalf of the Respondents- 4 | Page


-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

-BOOKS REFERRED-
1. CONSTITUTIONAL LAW OF INDIA- DR. J.N. PANDEY
2. RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE, (32nd Ed. 2011).
3. INFORMATION TECHNOLOGY ACT, 2000- UNIVERSAL CONCISE
COMMENTARY
4. PRIVACY AS A CONSTITUTIONAL RIGHT: SEX, DRUGS, AND THE RIGHT TO
LIFE BY DARIEN A. MCWHIRTER; JON D. BIBLE
5. RIGHT TO PRIVACY UNDER INDIAN LAW- KIRAN DESHTA

-STATUTES REFERRED-

1. SCINDIAN PENAL CODE, 1860

2. THE CONSTITUTION OF SCINDIA, 1950.

3. INFORMATION TECHNOLOGY ACT, 2000

4. INFORMATION TECHNOLOGY ( INTERMEDIARIES GUIDELINES) RULES, 2011

-Written Submission on Behalf of the Respondents- 5 | Page


-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

-STATEMENT OF JURISDICTION-

Petitioner 1 and Petitioner 2 approaches this Hon’ble Supreme Court by filing a Petition
under Article 32 of the Constitution of Scindia.

The provision under which the Petitioner has approached the Hon’ble Court is read herein
under as:

32. Remedies for enforcement of rights conferred by this Part


(1) The right to move the Supreme Court by appropriate proceedings for the 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.

Further, the Petition filed in the High Court of Dehri has been transferred to the Supreme
Court under Article 139A of the Constitution of Scindia.
The provision under which the Petitioner has approached the Hon’ble Court is read herein
under as:

139A. Transfer of certain cases


(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 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:
Provided that the Supreme Court may after determining the said questions of law return
any case so withdrawn together with a copy of its judgment on such questions to the High
Court from which the case has been withdrawn, and the High Court shall on receipt
thereof, proceed to dispose of the case in conformity with such judgment.
(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer
any case, appeal or other proceedings pending before any High Court to any other High
Court.

-Written Submission on Behalf of the Respondents- 6 | Page


-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

-STATEMENT OF FACTS-

̴I̴

-BACKDROP OF THE CASE-

Funbook is a popular social networking website based in France with one of its branch
offices in Dehri, capital of the Republic of Scindia. Mr.Vaibhav Dixit, a resident of Dehri
is a well-known business tycoon. He is the owner of Meliance Industries and Company, a
telecom operating company based in the Republic of Scindia. He is suspected to be
involved in an offence relating to tax evasion in Scindia and laundering money in France.
In the year 2007, Mr. Vaibhav Dixit made his account on Funbook and in 2008, he
installed the mobile version of Funbook in his smartphone. When he installed this
application, it asked for several permissions like permission to access the gallery of the
smartphone without which it could not be opened. Mr. Dixit granted permission for the
same. Ms. Sylvia, a resident of France and an ex-employee of Mr. Vaibhav Dixit’s
company was a frequent user of Funbook. Mr. Dixit had kept many screenshots of their
chat in his gallery which included his sensitive personal data.On Nov.7, 2017, Mr.
Vaibhav Dixit made a request to Funbook to delete his account and accordingly his
account was deleted within 7 days, i.e., November 14, 2017.

̴ II ̴

-DATA SHARING BY FUNBOOK-

The investigative agencies of the Republic of Scindia kept a vigilant eye on Mr. Dixit in
connection with his involvement in tax evasion and money laundering case. They
approached Funbook in this regard. On November 16, 2017, Funbook shared the personal
data of Mr. Dixit with the investigative agencies of the Republic of Scindia including
screenshots of the chat between Mr. Dixit and Ms. Sylvia which was stored in the gallery
of the smartphone of Mr. Dixit. Mr. Dixit infuriated by this act of Funbook approached
the Supreme Court of Scindia on December 5, 2017, contending that his Fundamental
Right to Privacy has been violated by Funbook.. Further, a challenge been made by Mr.
Dixit to the constitutional validity of The Information Technology (Intermediary
Guidelines) Rules, 2011 under which powers are vested with the Central government of
the Republic of Scindia to seek data from intermediaries.

̴ III ̴

-MR. VAIBHAV DIXIT ACCUSED OF RAPE-

Ms. Sylvia paid a visit to the Republic of Scindia . Mr. Dixit called Sylvia asking her to
meet him. Both of them had certain drinks and they got intimate with each other. The

-Written Submission on Behalf of the Respondents- 7 | Page


-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

very next morning, i.e. on January 1, 2018, Ms. Sylvia approached police station to lodge
an FIR against Mr. Dixit for committing the offence of rape. The Trial Court found Mr.
Dixit guilty of the offence of rape and convicted. All the leading newspapers in the
country including “The People” published this matter. Mr. Vaibhav Dixit appealed to the
High Court of Dehri and the High Court acquitted Mr. Dixit of all the charges. Mr. Dixit
found that the matter relating to the findings of the Trial Court which was published by
the “The People” around May 2018 was available on the e-newspaper portal of it which
could easily be accessed by anyone. Mr. Vaibhav Dixit approached the High Court of
Dehri.
̴ IV̴

-DISCLOSURE OF IDENTITY ON SEARCH ENGINE-

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. Ms.
Sylvia approached the Hon’ble Supreme Court of Scindia contending that disclosure of
her identity by the search engines is a clear cut violation of the safeguards provided to her
by the laws of the Republic of Scindia.

-Written Submission on Behalf of the Respondents- 8 | Page


-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

-STATEMENT OF ISSUES-

ISSUE I:

WHETHER THE NON-ERASURE OF THE SENSITIVE PERSONAL DATA BY


FUNBOOK WAS A VIOLATION OF THE FUNDAMENTAL RIGHT TO PRIVACY OR
NOT?
ISSUE II:

WHETHER INFORMATION TECHNOLOGY RULES(INTERMEDIARY GUIDELINES),


2011 IS CONSTITUTIONALLY VALID OR NOT?

ISSUE III:

WHETHER THE AVAILABILITY OF THE NEWS IN THE PUBLIC DOMAIN IN


DIGITAL FORM RELATING TO THE ALLEGED RAPE IS A VIOLATION OF
FUNDAMENTAL RIGHTS OR NOT?

ISSUE IV:

WHETHER THE DISCLOSURE OF THE IDENTITY OF MS. SYLVIA BY SEARCH


ENGINES IS A VIOLATION OF THE SAFEGUARDS PROVIDED BY LAW OR NOT?

-Written Submission on Behalf of the Respondents- 9 | Page


-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

-SUMMARY OF ARGUMENTS-

I.THE NON-ERASURE OF THE SENSITIVE PERSONAL DATA BY FUNBOOK


WAS NOT A VIOLATION OF THE FUNDAMENTAL RIGHT TO PRIVACY .

● It is humbly submitted before this Hon’ble Court that the Right to privacy enshrined
under the Constitution of Scindia is not an absolute right that is intrusions and exceptions
to this rule can be applied. Further it is contended that Funbook was under a legal
obligation to share the sensitive data as it was for the welfare of the investigation which
was being conducted by the investigative authority.
● It is humbly submitted before this Hon’ble Supreme Court of Scindia that the Funbook
had right to store such data of the petitioner for which he had granted permission for thus
the right to privacy of petitioner was not a violation. It is further contended that tax
evasion and money laundering are considered as a socio-economic offence which is quite
a menace and the accused shall be punished for it so it was beneficial on the part of
Funbook to share the sensitive data of the petitioner so that no interruption would occur
during the course of investigation.

II. THE INTERMEDIARY GUIDELINES OF INFORMATION TECHNOLOGY


RULES, 2011 IS CONSTITUTIONALLY VALID.

● It is humbly submitted before this Hon’ble Court that the intermediary guidelines of
information technology shall be declared valid as there was urgent need of the rule to
protect personal data of the citizens of the society.
● It is humbly submitted before this Hon’ble Court that the Section 3 of IT (intermediaries
guidelines) rules, 2011 restricts the intermediary to host or publish any information shall
not initiate the transmission hence it does not amount any violation of privacy.
● It is humbly submitted before this Hon’ble Court that the section 3 & 4 of money
laundering Act defines offence of money laundering and its punishment which clearly
state that it is a grave offence in which investigative authority can access the data of any
person who is suspected for such offences.

-Written Submission on Behalf of the Respondents- 10 | Page


-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

III. THE AVAILABILITY OF THE NEWS IN THE PUBLIC DOMAIN IN DIGITAL


FORM RELATING TO THE ALLEGED RAPE IS NOT A VIOLATION OF
FUNDAMENTAL RIGHTS.

● It is humbly submitted before this Hon’ble Court that the media derives its rights from
the right to freedom of Speech and expression available to the citizen.Press can only
enable a young democracy like India to survive, and also help its development of
social justice and to serve the interests of the common people.
● It is humbly submitted before this Hon’ble Court that the main purpose of the
publication is for the welfare of public interest at large thus, publication of news
makes the public aware of whatsoever is going on all around the world and it cannot
be hinged away.

IV. THE DISCLOSURE OF THE IDENTITY OF MS. SYLVIA BY SEARCH


ENGINES IS NOT A VIOLATION OF THE SAFEGUARDS PROVIDED BY LAW.

● It is humbly submitted before this Hon’ble Court that the search engines are
committed to diverse perspective. Search engines uses web crawlers to organize
information from webpages and other publicly available content in the Search index.

● It is submitted that their intention was to provide relevant information , so as to


protect the information of national importance.In the present case neither the accused
did not had any such intention on their part to infringe any rights or cause any loss to
thepetitioner.

-Written Submission on Behalf of the Respondents- 11 | Page


-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

-ARGUMENTS ADVANCED-

I.THE NON-ERASURE OF THE SENSITIVE PERSONAL DATA BY FUNBOOK


WAS NOT A VIOLATION OF THE FUNDAMENTAL RIGHT TO PRIVACY.
1. The respondent submits before the Hon’ble Court of Scindia that the non-erasure of
the sensitive personal data by Funbook was not a violation of the Fundamental Right
to privacy.
I.I RIGHT TO PRIVACY NOT AN ABSOLUTE RIGHT I.E. INTRUSIONS CAN BE
APPLIED
2. It is submitted before the Hon’ble Court of Scindia that the Right to privacy
guaranteed under Article 21 of the Constitution of Scindia is not an absolute right and
intrusions or exceptions to this rule can be applied.
3. In the case of R. Rajagopal v. State of T.N. which is popularly known as “Auto
shanker case”1the Supreme Court has expressly held that the “right to privacy” or the
right to be let alone is guaranteed by Article 21 of the Constitution but the Supreme
Court also held that right to privacy is not an absolute right and intrusions can be
applied to it.
4. In the case of Mr. ‘X’ v. Hospital ‘Z2’ the Supreme Court has held that although the
“Right to privacy” is a fundamental right under Art. 21 of the Constitution but it is not
an absolute right and restrictions can be imposed on it for the prevention of crime,
disorder or protection of health etc. Art. 21 of the Constitution of Scindia states
that:“Protection of life and personal liberty:- No person shall be deprived of his
life or personal liberty except according to procedure established by law.”3 Art.
21 can be interpreted as no person shall be denied of his personal liberty and dignity
except if the law says to do so. Thus, the object of the fundamental right under Art. 21
is to prevent encroachment upon personal liberty and deprivation of life except
according to procedure established by law. It clearly means that this fundamental right
has been provided against the state only If an act of private individual amounts to
encroachment upon the personal liberty or deprivation of life of other person. Such
violation would not fall under the parameters set for the Art. 21. The state cannot be

1 (1994) 6 SCC 632


2 APPEAL (civil)4641 0F 1998
3 INDIAN CONST. art. 21

-Written Submission on Behalf of the Respondents- 12 | Page


-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

defined in a restricted sense. It includes government Departments, legislature,


Administration, local authorities exercising statutory or private bodies having no
statutory powers.
5. In the case of Francis Coralie Mullin v. The Administrator, Union territory of Delhi
and others4 it was observed that Art. 21 requires that no one shall be deprived of his
life or personal liberty except by procedure established by law and this procedure
must be reasonable, fair and just and not arbitrary, whimsical or fanciful.
6. Thus, it can be contended that the non-erasure of personal data was not violation of
Fundamental right to privacy as intrusion is its exception that is the state has right to
interfere if it deems fit for the benefit of the country.
I.II DUTY OF FUNBOOK UNDER LEGAL REQUEST
7. It is humbly submitted before the Hon’ble Court of Scindia that the non-erasure of the
sensitive personal data was not a violation of right to privacy as it is clearly
mentioned under data policy of the Funbook that they respond to legal request

The data policy clearly states that


We access, preserve and share your information with regulators, law enforcement or others:

8. In response to a legal request (e.g. a search warrant, Court order or subpoena) if we


have a good-faith belief that the law requires us to do so. This may include responding
to legal requests from jurisdictions outside of the United States when we have a good-
faith belief that the response is required by law in that jurisdiction, affects users in that
jurisdiction and is consistent with internationally recognised standards.
9. When we have a good-faith belief that it is necessary to: detect, prevent and address
fraud, unauthorised use of the Products, breaches of our Terms or Policies, or other
harmful or illegal activity; to protect ourselves (including our rights, property or
Products), you or others, including as part of investigations or regulatory enquiries; or
to prevent death or imminent bodily harm. For example, if relevant, we provide
information to and receive information from third-party partners about the reliability
of your account to prevent fraud, abuse and other harmful activity on and off our
Products.
10. Information we receive about you (including financial transaction data related to
purchases made with Facebook) can be accessed and preserved for an extended period

4Francis Coralie Mullin v. The Administrator, Union territory of Delhi and others AIR 1981 SC 746

-Written Submission on Behalf of the Respondents- 13 | Page


-7th MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION, 2019-

when it is the subject of a legal request or obligation, governmental investigation or


investigations of possible violations of our terms or policies, or otherwise to prevent
harm. We also retain information from accounts disabled for term breaches for at least
a year to prevent repeat abuse or other term breaches5
11. Thus, it is the duty of Funbook to share the personal data in case of investigation so
sharing of sensitive personal data with the investigative authority was not a violation
of Fundamental right to privacy.

I.III RIGHT TO STORE DATA


12. It is humbly submitted before the Hon’ble Court of Scindia that the non-erasure was
not the violation of right to privacy as Funbook had right to store data for which Mr.
Dixit had granted permission for.
13. It is clearly mentioned under the data policy of the Funbook that “We store data until
it is no longer necessary to provide our services and Facebook Products or until your
account is deleted – whichever comes first. This is a case-by-case determination that
depends on things such as the nature of the data, why it is collected and processed,
and relevant legal or operational retention needs. For example, when you search for
something on Facebook, you can access and delete that query from within your
search history at any time, but the log of that search is deleted after six months. If you
submit a copy of your valid photo ID for account verification purposes, we delete that
copy 30 days after submission”.
14. When you delete your account, we delete things that you have posted, such as your
photos and status updates, and you won't be able to recover this information later.
Information that others have shared about you isn't part of your account and won't be
deleted. If you don't want to delete your account but want to temporarily stop using
the Products,
15. Thus, in case of legal request and investigation it is the duty of Funbook to provide
stored data so that the investigative authority without any prior notice to the account
holder thus sharing of the data was not the violation of Fundamental right to privacy
as it was important for the investigative authority to know about the personal data of
Mr. Vaibhav Dixit who was a suspect in the case of tax evasion and money
laundering.

5 https://www.facebook.com/full_data_use_policy

-Written Submission on Behalf of the Respondents- 14 | Page


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I.IV. MONEY LAUNDERING- A SOCIO-ECONOMIC OFFENCE

16. It is humbly submitted before the Hon’ble Court of Scindia that non erasure of data
was not the violation of right to privacy and it was essential to share the sensitive
personal data of Mr. Dixit with the investigative authorities as offences like money
laundering and tax evasion are considered as socio- economic offences for which the
criminal shall be punished.
17. Money laundering could be understood as to entails activities aimed at the legalization
of money gained from criminal activities. Participants in money laundering use a wide
range of different transactions to cover the real origin of money and make it a legal
means of transactions on the money market, which ultimately enables them to use it in
regular business relations where they invest their capital”
18. According to the definition provided by the Bank of England, money laundering is the
process by which criminals attempt to conceal the true origin and ownership of the
proceeds of their criminal activities. If done successfully, it allows them to maintain
control over those proceeds and ultimately provides a legitimate cover for their source
of income6
19. The Code of Criminal Procedure governs the procedural aspects of prosecution, there
are marked deviations from the standard procedure considering the special nature of
the offence (including its cross border character) and slightly different process is
envisaged. The offence is cognizable which means arrest can be made without a
warrant.7 there is a specialised investigative body for investigation of these offences.
Authority is empowered to carry out interim measures such as survey, search, seizure
and arrest of the accused. Similarly, if an asset is found to be the proceeds of crime,
the same can be confiscated and appropriated by the Government.
20. Section 17 gives wide powers of search and seizure to the investigating agency. If the
investigating agency has reason to believe (and such belief should be recorded in
writing) the commission of offence under the PMLA and possession of proceeds of
crime, it can enter and seize property/records etc, make an inventory of the same. The
seizure memo is required to be signed by two independent witnesses. If the

6 http://www.bankofengland. co.uk/archive/documents/historicpubs/qb/1992/qb92q4418426.pdf
7 Chahagan Chandrakant Bhujbal v. Union of India, 2016 SCC OnLine Bom 938

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investigating authority has a reason to believe that a person has secreted about his
possession, ownership or control, proceeds of crime, in that case the person can be
searched. Before the search of a person, as per his wish, the authority shall take the
said person before a Gazetted officer superior in rank to the authority or a Magistrate
within 24 hours excluding the time of journey. This is the safeguard laid down in S.
18(4) of the PMLA, however, strangely there is no corresponding obligation on the
investigating agency to inform the person about to be searched of this valuable right.
Something akin to a Miranda warning will be apposite here.
21. Thus, the investigative authority was performing its duties under Prevention of Money
laundering Act, 2002 and it was not violative of Mr. Dixit’s Right to privacy.

I.V RIGHT TO ACCESS DATA.


22. It is humbly submitted before the Hon’ble Court of Scindia that the non-erasure of
data was not violation of Right to privacy as Funbook had right to access the data for
which Mr. Dixit had granted the permission for as per the fact sheet, Mr. Vaibhav
Dixit made the request to delete his account on November 7th 2017 and his account
was deleted on 14th November 2017.
23. Thus, the Personal data which were shared by Funbook with the investigative
authority was of before 7th of November 2017 that is Funbook stored and shared the
data of Mr. Dixit when he was an active member on Funbook.
24. According to Funbook data policy it stops to store data when it is no longer necessary
to store it therefore Funbook had stopped storing the data of Mr. Vaibhav dixit from
the day he requested for his exit from Funbook that is from 7th November 2017.
Funbook had not stored any personal data from the day Mr. dixit made the request.
25. Thus, the data shared with the investigative authority of was not the recent data but
was data of when Mr. dixit had an active account on Funbook and for which he had
granted permission for. It can be seen in the fact sheet that Funbook created a collage
of pictures stored in the gallery of Mr. Dixit’s smartphone and had asked permission
before sharing it which Mr. Dixit had denied, this clearly shows that Funbook didn’t
share anything without the consent of Mr. Dixit when he was the user of Funbook
rather it shared the information after the exit of Mr. Dixit from Funbook for which it
was not necessarily required to take permission for before sharing it to the
investigative authority. Therefore the sharing of personal data was not the violation of
Right to privacy.

-Written Submission on Behalf of the Respondents- 16 | Page


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II. THE INTERMEDIARY GUIDELINES OF INFORMATION TECHNOLOGY RULES,


2011 IS CONSTITUTIONALLY VALID.
It is Humbly submitted before this Hon’ble Supreme Court of Scindia that the
Intermediary Guidelines of Information technology is Valid.

II.I URGENT NEED OF THE RULES


26. The Internet users in present scenario, are dangerously exposed to the risk of privacy
infringement in cyberspace. With the growing use of internet by the citizens of the
country, the risk of their being exploited and victimized by infringing their privacy
over internet is increasing day by day.
27. Information technology(intermediary guidelines) is solely made to reduce cyber
crimes.
28. It is clearly stated in section 3 Information technology (intermediary guidelines),
2011, that
‘The intermediary shall not knowingly host or publish any information or shall not initiate
the transmission, select the receiver of transmission, and select or modify the
information contained in the transmission.’
29. The interim storage of information in the computer resources as an already built-in
feature for transmission to other computer resources provided that no human editing
or control is possible over it, does not amount to any violation of privacy.
30. In this Section it is clearly provided that the following actions by an intermediary
shall not amount to hosing, publishing, editing or storing of any such information as
specified in sub-rule:
(a) temporary or transient or intermediate storage of information automatically within the
computer resource as an intrinsic feature of such computer resource, involving no
exercise of any human editorial control, for onward transmission or communication
to another computer resource;
(b) removal of access to any information, data or communication link by an intermediary
after such information, data or communication link comes to the actual knowledge of
a person authorised by the intermediary pursuant to any order or direction as per the
provisions of the Act;

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31. The same was said by supreme court in Gobind vs State of MP8 –the first privacy
judgment of the Supreme Court – the Court laid down a more rigorous variant of this
test. In this case, the Court held that privacy violations could be justified only if there
was a “compelling State interest” at stake, and if the law was narrowly tailored – that
is, the State could have to show that there was no other, less privacy-infringing way,
through which it could achieve its goals. The dictum in this case was followed in the
phone-tapping case – PUCL vs Union of India9 – where the Court upheld the
constitutionality of phone tapping only by passing guidelines that restricted its scope
to narrow and targeted surveillance.
32. As Mr. Dixit is The investigative agencies of the Republic of Scindia kept a vigilant
eye on Mr. Dixit in connection with his involvement in tax evasion and money
laundering case. They approached Funbook in this regard.
33. Tax evasion and money laundering is a grave offence of public interest hence, state
has the authority to collect the data regarding the investigation of these offences as the
investigative authority collect the data of Mr. Dixit.
34. Section 3 of Money laundering act defines –
“Offence of money-Laundering.-Whosoever directly or indirectly attempts to indulge or
knowingly assists or knowingly is a party or is actually involved in any process or
activity connected proceeds of crime including its concealment, possession,
acquisition or use and projecting or claiming it as untainted property shall be guilty
of offence of money-laundering”.
35. Section 4 of money Laundering act defines –
“Punishment for money-Laundering.-Whoever commits the offence of money-laundering
shall be punishable with rigorous imprisonment for a term which shall not be less than
three years but which may extend to seven years and shall also be liable to fine:
Provided that where the proceeds of crime involved in money-laundering relates to
any offence specified under paragraph 2 of Part A of the Schedule, the provisions of
this section shall have effect as if for the words "which may extend to seven years",
the words "which may extend to ten years" had been substituted.”

81975 AIR 1378

9 AIR 1997 SC 568,1997 (1) UJ 187 SC (India).

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36. In Govind Singh v. State of Madhya Pradesh10 it was observed that “the fundamental
rights explicitly guaranteed to a citizen have penumbral zones and that the right to
privacy is itself a fundamental right, that fundamental right must be subject to
restriction on the basis of compelling public interest."
37. In Mr. 'X' vs Hospital 'Z'11 it was stated by hon’ble Supreme Court
“The Right of Privacy is an essential component of right to life envisaged by Article 21, The
'right, however, is not absolute and may be lawfully restricted for the prevention of
crime, disorder or protection of health or morals or protection of rights and freedom
of others.
II.II. CENTRAL GOVERNMENT HAS THE AUTHORITY TO INTERCEPT IN
INFORMATION
38. section 69 of information technology act 2000, clearly states that central government
may at any time intercept the data if there is necessary conditions:
“Power to issue directions for interception or monitoring or decryption of any information
through any computer resource.–(1) Where the Central Government or a State
Government or any of its officers specially authorised by the Central Government or
the State Government, as the case may be, in this behalf may, if satisfied that it is
necessary or expedient so to do, in the interest of the sovereignty or integrity of India,
defence of India, security of the State, friendly relations with foreign States or public
order or for preventing incitement to the commission of any cognizable offence
relating to above or for investigation of any offence, it may subject to the provisions
of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of
the appropriate Government to intercept, monitor or decrypt or cause to be intercepted
or monitored or decrypted any information generated, transmitted, received or stored
in any computer resource.
(2) The procedure and safeguards subject to which such interception or monitoring or
decryption may be carried out, shall be such as may be prescribed.
(3) The subscriber or intermediary or any person in-charge of the computer resource shall,
when called upon by any agency referred to in sub-section (1), extend all facilities and
technical assistance to– (a) provide access to or secure access to the computer
resource generating, transmitting, receiving or storing such information; or (b)

10 1975 AIR 1378


11 AIR 1995 SC 495 (INDIA).

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intercept, monitor, or decrypt the information, as the case may be; or (c) provide
information stored in computer resource”.
II.III. SECURE ELECTRONIC RECORDS AND SECURE
39. Justice Nariman’s opinion provided the clearest exposition, he held that: “… when it
comes to restrictions on this right, the drill of various Articles to which the right
relates must be scrupulously followed. For example, if the restraint on privacy is over
fundamental personal choices that an individual is to make, State action can be
restrained under Article 21 read with Article 14 if it is arbitrary and unreasonable; and
under Article 21 read with Article 19(1) (a) only if it relates to the subjects mentioned
in Article 19(2) and the tests laid down by this Court for such legislation or
subordinate legislation to pass muster under the said Article. Each of the tests evolved
by this Court, qua legislation or executive action, under Article 21 read with Article
14; or Article 21 read with Article 19(1)(a) in the aforesaid examples must be met in
order that State action pass muster.”12
III. THE AVAILABILITY OF THE NEWS IN THE PUBLIC DOMAIN IN DIGITAL
FORM RELATING TO THE ALLEGED RAPE IS NOT A VIOLATION OF
FUNDAMENTAL RIGHTS.
It is humbly submitted before this Hon’ble Court the availability of the news in the public
domain in digital form relating to the alleged rape is not a violation of fundamental rights.

III.I. TRUTH- AN EXCEPTION


40. It is humbly submitted before this Hon’ble Court that publication of truth in the news
can never be a violation of any rights of the petitioner113. It is not defamation to
impute anything, which is true, concerning any person. In India, truth is an absolute
defense in Civil Cases.
41. As mentioned,14 the matter relating to the findings of the Trial Court which was
published by the “The People” around May 2018 was available on the e-newspaper
portal .The document published was a judgment of the Trial Court and a government
document which could be read by anyone easily from various websites other than the
e-newspaper of “The People”. Further, the Supreme Court and the High Courts of the
Republic of Scindia publishes its all the judgment which could be accessed by any
common person.

12 https://www.livelaw.in/supreme-courts-right-to-privacy-judgment-vi-limitations/
13 Alexander v. N.E. Rly; (1865) 6 B&S 340
14 Moot proposition of 7th mahamana National moot Court Competition.

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III.II DUTY OF PRESS


42. It is humbly submitted before this Hon’ble Court that a free press is very important
and essential for the effective functioning of a democracy. the expression ‘Freedom of
press’ means the right to print and publish without any interference from the state or
any other public authority. Press plays an informative and mobilizing act in moulding
public opinion and might be mechanism of common reform, for the liberty of Press is
regarded as “the mum of all other liberties within a democratic society.
43. Freedom of Press is not specifically mentioned under the Indian Constitution, but it is
included under Article 19(1) (a) of Constitution of India. Article 19 (1)(a) of the
Constitution from which the media derives its rights guaranteed to every citizen of
India, Article 19(1) (a) reads : 19. (1) All citizens shall have the right (a) to freedom
of speech and expression, The exceptions to the right guaranteed under Article 19(1)
(a) are contained in Article 19(2) which reads: “Nothing in sub – clause (a) of Clause
(1) shall affect the operation of any existing law, or prevent the state from making any
law, on the exercise of the right under SubClause in the interests of the sovereignty
and integrity of India, public order, decency or morality, or in relation to contempt of
court, the security of the state, friendly relations with foreign states, defamation or
incitement to an offence in so far as such law imposes reasonable restrictions.” The
media derives its rights from the right to freedom of Speech and expression available
to the citizen. Thus, the media has the same rights --- no more and no less than any
individual to write, publish, circulate or broadcast
44. Press can only enable a young democracy like India to survive, and also help its
development of social justice and to serve the interests of the common people. A free
Press can help develop a body of citizens who are well informed both regarding
current events and also about the problems facing the country and the alternatives
available for tackling them.Thus, the publication was a duty of press and a right
guaranteed under the Constitution. Hence, it was not in contravention of the
Fundamental Rights.
III.III. BROAD SPECTRUM OF ONLINE DATABASE
45. It is humbly submitted before this Hon’ble Court that the data stored in server
spectrum which is available worldwide has a must wider spectrum than available on
the online spectrum. In today’s day and age where there is free exchange of

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information and advertising through newspapers, magazines, video, television,


movies, freedom of travel between various parts of the world. It is a known fact that
the modem world has shrunk and every type of information is merely a click away. In
fact there is an information overload. If the respondent removes the content from the
public domain then to it will be available to the people .Thus, the relief demanded by
the petitioner is ineffective.
III.IV.PURPOSE OF PUBLICATION
46. It is humbly submitted before this Hon’ble Court of Scindia that the main purpose of
the publication is for the welfare of public interest at large thus, publication of news
makes the public aware of whatsoever is going on all around the world and it cannot
be hinged away. The publication in the present scenario can be done only in two ways
that is online and offline and the online publication of news by the publication
authority has a much wider scope than offline mode thus it is a better platform for the
publication authority to publish their news for making aware a large number of person
as possible.
47. Thus, as per the fact sheet15the publication of the judgment of the Trial Court was for
the awareness of the common people. It nowhere intended to harm the petitioner in
any way. It is the responsibility of the press to present the true facts and judgment in
the interest of all. Thus, the publication was not a violation of the Fundamental Rights
of the petitioner.

IV. THE DISCLOSURE OF THE IDENTITY OF MS. SYLVIA BY SEARCH


ENGINES IS NOT A VIOLATION OF THE SAFEGUARDS PROVIDED BY LAW.

It is humbly submitted before this Hon’ble Court the disclosure of the identity of Ms. Sylvia
by search engines is not a violation of the safeguards provided by law.

IV.I. ROBUST METHODOLOGY


48. It is humbly submitted before this Hon’ble Court the search engines are committed to
diverse perspective. Search engines uses web crawlers to organize information from
webpages and other publicly available content in the Search index. One want the
answer, not billions of webpages ,so its ranking systems sort through hundreds of

15 Moot proposition Para 12 & 14 of the 7th Mahamana National Moot Court Competition.

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billions of webpages in the Search index to give the user the useful and relevant
results in a fraction of a second. Understanding the meaning of the search is crucial to
returning good answers. So to find pages with relevant information, our first step is to
analyze what the keywords in your search query mean. They build language models to
try to decipher what strings of words we should look up in the index.
49. These ranking systems are made up of a series of algorithms that analyze what the
users are looking for and what information to return to the user. They analyze how
often and where those keywords appear on a page, whether in titles or headings or in
the body of the text.These algorithms analyze hundreds of different factors to try to
surface the best information the web can offer, from the freshness of the content, to
the number of times your search terms appear and whether the page has a good user
experience.
IV.II.ABSENCE OF MALAFIDE INTENTION
50. It is contended -before this Hon’ble Court that accused had no intention to commit
any such act to harm national security. They in fact acted in pursuance of the laws
applicable on them. Their intention was to provide relevant information , so as to
protect the information of national importance. Since the search engines uses a robust
framework to surface the best information the web can offer. It is not possible for a
person or group of persons to manipulate the search results. The search results are
not controlled manually. It is based completely on the algorithm. In order to assess
trustworthiness and authority on its subject matter, they look for sites that many users
seem to value for similar queries. If other prominent websites on the subject link to
the page, that’s a good sign the information is high quality. Thus, the existence of a
malafide intention is not possible . “Only a human being under legal obligation and
capable of being punished can be proper subject of criminal law.”
51. The damage caused to the database and website were unforeseeable. The accused took
reasonable care by testing the virus in their own system. In the case of Bholu Ram v.
State of Punjab,16 Hon’ble Court held that even if there is negligence on the part of
the accused but he had no criminal intention he cannot be held guilty.

16 Bholu Ram v. State of Punjab (2008) 9 SCC 140.

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IV.III.THERE CAN BE NO CRIMINAL LIABILITY WITHOUT ‘MENS REA’


52. The essence of criminal law has been said to lie in the Maxim – ‘actus non facit reum
nisi mens sit rea.’ Which means there can be no crime not even the remotest one
without mens rea without intention.17 Therefore it is a settled principle of law that
there can be no crime without mens rea.18
53. In the present case neither the accused did not had any such intention on their part to
infringe any rights or cause any loss to the petitioner. Thus, there was absence of
mens rea on their part to commit any offence. Thus, they cannot be imposed with
criminal liability.19 Hence, it is pleaded before this Hon’ble Court that the respondent
is not guilty of any offence.

17 Eugene I. Chesney, ‘Concept of Mens Rea in the Criminal Law’. Vol.29 Issue 5, Journal of Criminal Law and
Criminology.
18 Brend v. Wool, (1946) 62 T.L.R. 462-463: Harding v. Prince, (1948) All E.R 283.
19 United States v. Cordoba-Hincapie, 825 F. Supp. 485, 495 (E.D.N.Y. 1993).

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-PRAYER FOR RELIEF-

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is
Most humbly and respectfully prayed before this Hon’ble Court to adjudge and declare:

TO HOLD

THAT THE RIGHT TO PRIVACY HAS NOT BEEN VIOLATED


THAT THE INFORMATION TECHNOLOGY (INTERMEDIARIES GUIDELINES)
RULES,2011 ARE UPHOLDING THE RIGHT TO PRIVACY
THAT THE PUBLICATION OF NEWS IN PUBLIC DOMAIN AND THE DISCLOSURE
OF MS. SYLVIA ON SEARCH ENGINE IS NOT A VIOLATION OF THE RIGHT TO
LIFE AND DIGNITY

TO DIRECT

THE INFORMATION TECHNOLOGY (INTERMEDIARIES GUIDELINES) RULES,2011


ARE CONSTITUTIONAL.

MISCELLANEOUS

AND ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE PLEASED TO
GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Sd/-
………………………………
COUNSELS FOR THE RESPONDANT

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