1

BEFORE THE HONOURABLE SUPMERE COURT OF INDIANA

WRIT PETITION

ARTICLE 139A

FEATURES CO. LTD AND ZINC ENTERPRISSES LTD & ORS ………….Petitioner

VERSUS

UNION OF INDIA & ORS ……………Respondent

MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

List of Abbreviations..............................................................................................................4
Index ofAuthorities..................................................................................................................5
Statement of Jurisdiction........................................................................................................9
Statement of Facts..................................................................................................................10
Issues Involved.......................................................................................................................12
Summary of Arguments.........................................................................................................13
Arguments Advanced..............................................................................................................

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LIST OF ABBREVIATIONS

AIR All India Reporter

Art. Article

Bom. Bombay

Co. Company

Ch. Chapter
DC District Court

Ed. Edition

HC High Court

Hon’ble Honourable

Ltd. Limited

SC Supreme Court

SCC Supreme Court Cases

UOI Union of India

Vol. Volume

Vs. Versus

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INDEX OF AUTHORITIES

BOOKS

Durga Das Basu, Introduction to the Constitution of India (22nd edition, LexisNexis)

Dr. J.N. PANDEY, Constitutional Law Of India (53rd ed, Central Law Agwncy)

LEGAL DATABASE

1. SSC ONLINE

2. WESTLAW

CASES

1. Mylapore Club v. State of Tamil Nadu (2005) 12 SCC 752

2. Kedar Nath Singh v. The State of Bihar AIR 1962 SC 955

3. State of Andhra Pradesh v. McDowell & Co AIR 1996 SC 1628 at 1641

4. Ram Krishna Dalmia v. S.R. Tendolkar, AIR 1958 SC 638; Vrajlal Manilal & Co. v.
State of Madhya Pradesh, AIR 1970 SC 129; Bachan Singh v. State of Punjab, AIR
1982 SC 1325
5. Charanjit lal Chowdhary v Union of India AIR 1951 SC 41
6. O K Ghosh v. E X Joseph, A.I.R. 1963 S.C. 812.
7. Sandra Coliver, Commentary to: The Johannesburg Principles on National Security,
Freedom of Expression and Access to Information, 20 No. 1 Hum. Rts. O 12-80, 27
(Feb., 1998) (Jan, 30, 2015)
8. Article19, The Johannesburg Principles on National Security, Freedom of Expression
and Access to Information, 1 October 1995, principle 1.3(b). (Jan, 30, 2015)
9. Dicey-Law of constitution, pp. 202-3 (10th ed.)
10. Maneka Gandhi v. Union of India AIR 1978 SC 597.
11. R.D. Shetty v. Airport Authority, AIR 1979 SC 1628.
12. Federation of Railway officers Association v. Union of India, AIR 2003 SC 1344

13. Naraindas v. State of M.P. AIR 1974 SC 1232

14. Ramkrishna Dalmia v. Tendolkar AIR 1957 SC 532
15. Namit Sharma vs Union of India (2013) 1 SCC 745

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16. D.D. Basu‘s ‗Shorter Constitution of India‘ (Fourteenth Edition, 2009)

17. Instances of abuse of law
18. Wills-Constitutional Law and the United States, 477.
19. A.K. Gopalan v. State of Madras, AIR 1951 SC 21.
20. Santosh Singh v. Delhi Administration, AIR 1973 SC 1091
21. Virendra v. State of Punjab, AIR 1957 SC 896; State of Madras v. Row, (1952) SCR
597
22. Hamdard Dawakhana v. Union of India, A.I.R. 1960 S.C. 554
23. Confederation of Ex-serviceman Association v. Union of India, (2006) 8 S.C.C. 399

24. Om Kumar v. Union of India, (2001) 2 SCC 386 : AIR 2000 SC 3689
25. ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207

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STATEMENT OF JURISDICTION

The Petitioners have approached the Hon‘ble Supreme Court of by way of writ
petition under Article 139A of the constitution of Indiana.
The Respondents humbly submit to the jurisdiction of the Hon‘ble Court in response
to the petition filed by the Petitioners.

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STATEMENT OF FACTS

1. Indiana is a developing country considered as one of the emerging powers in the

information technology sector. The country also requires foreign investment, to maintain and
stabilize unemployment, and also to effectuate development in different segments of
the country. The government is also keen to provide tax benefits to the foreign
companies in order to attract further investment.

2. Zinc Enterprises Ltd. was one of those companies, which stepped in to benefit from such
policies. The lack of goodwill in the countries that it was already operating, never dissuaded
the company to further invest in Indiana, and take the advantage of its populous.
They developed a new application software known as ‗Commu-app‘ in the year 2006.
This application was a private messaging application that was easily available on the web
store for download onto smartphones or PCs The software used an easy user interface and
functioned using an ‗end-to-end encryption‘ (‗E2EE‘) communication system. Users could
easily make an account and share pictures, voice messages, videos, messages and documents
with their personal contacts through this medium.

3. Before installing the app, a window would appear stating the following relevant terms and
conditions:

Downloading the application would allow the app to view one or more of:

a. Information about activity on the device, the applications that are running, the browsing
history, bookmarks, and cookies.

b. Allow the app to determine the phone number and device ID‘s, whether a call is active,
and the remote number connected by such a call.

c. Enable access to one or more identity of accounts on the device, profile data, etc.

d. Enable access to one or more files on the device such as images,

e. Enables access to videos, audios or the device‘s external storage.

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f. Grant access to phonebook and location information.

g. Enable reading of/sync statuses; receive and share data from the internet.

An ‗install‘ button was provided after which the users wishing to proceed would
have to accept the above-mentioned terms and conditions.

4. In 2008, the company collaborated itself with another company, known as

‗Features‘ (owned by Features Co. Ltd.) owned by Harry and Parry. ‗Features‘ was another
online social media platform and social networking service, operative globally, and used
by numerous people. ‗Features‘ allowed its users to share information like pictures, videos,
phone numbers and other personal information. It enable them to provide relevant
advertisements while also providing access to other search engines to find the relevant sources
on ‗Features‘ and make a complete profile of the users. The history of such data, however,
could still be collected even if the user uninstalled the app. Consent of users was obtained by
‗opt-in basis‘ ‗Features‘ had paid ‗Commu-app‘ a hefty amount of USD 10 Million for
letting them use the personal information, which was not to be disclosed in public.

5. It was noticed through a survey conducted by a Non-Governmental Organization, in

its annual report that the users of such an application hardly read all the terms and conditions,
regarding the update or upgrade, and would usually agree to such terms and conditions
as provided by the company.

6. January 2009 it was noticed that the private information of majority of the users shared by
them on both the applications was leaked on the internet. Private pictures and videos
of numerous people, particularly women depicting obscene content went viral on various
social networking sites such as Fake-book, Intra-Gram and Tiber in the form of small
clippings. An anonymous blog on the internet explicitly stated that the information
might have leaked through ‗Features‘ on the internet, which could be due to the
lack of appropriate cybersecurity measures which were supposed to be taken by the
company.

7. Such a leak caused severe public disorder and chaos in the country which brought
the Progressive Conservative Association of Indiana (‗PCA‘), a right-wing association headed
by Sri Devi, a dynamic new leader into action. Several protests by the association arose in lieu
of requests from several mothers of the teenage children claiming that their children
are
‗morally depraved‘ and filled with ‗sexual urges‘ due to this leakage of sensitive
personal
information. PCA, later, that night attacked some of the female employees of Features who
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were seen going out to a pub. The employees were wrongfully restrained in a
warehouse whole night and paraded around the streets.

8. The Central Government issued an order banning both, the Commu app and features app.
Consequently, the Investigating Officer entered the headquarters of features and seized all the
computers, papers and hard disks. Additionally, edited pictures of various women were found
hanging on clipboards along with several letters lying on the floor. These letters were written
by angry mothers requesting them for removing such obscene and salacious content which
was spoiling their children and making them indecently interested in sexual matters at a very
young age. Apart from all this, another torn letter was found in bits and pieces written
by Harry to his ex-girlfriend Karry, stating that he wanted to change the societal perspective
of womanhood and expand boundaries of socio-legal sentience taking into consideration
the strata of morality and ethics prevalent in the society.

9. The video clippings, picture hangings and letters seized by the police authorities
were annexed to the charge sheet as proof for the Company‘s moral indecency by the
Prosecution. These letters including the private letter of Harry were further published in local
newspapers.

10. Harry and Parry along with Zinc Enterprises Ltd. Requested to move to the
Hon‘ble
Supreme Court under Article 139A to transfer all the cases to itself. The
intermediaries already had filed a similar petition for the same.

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ISSUES INVOLVED

The Constitutionality of Sections 67 A, 69 A and 69 B of the Information Technology

Act, 2000 (as amended) and allied provisions of IPC ( Section 339 ) & Indecent
Representation of Women (Prohibition) Act, 1986 ( Section 3 and 4).

II

Whether there was any undue infringement of right to privacy by the search of private
documents and letters which were not meant for public disclosure.

III

Whether there is a violation of Article 20(3) if any private unpublished

document/ information has been used in order to convict the Accused.

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SUMMARY OF ARGUMENTS

1. The Constitutionality of Sections 67 A, 69 A and 69 B of the Information Technology

Act, 2000 (as amended) and applicability of allied provisions of IPC ( Section 340 ) &
Indecent Representation of Women (Prohibition) Act, 1986 ( Section 3 and 4).

It is humbly submitted before the Hon‘able Supreme Court of Indiana that the of Sections 67
A, 69 A and 69 B of the Information Technology Act, 2000 (as amended) are constitutional as
they upheld article 14, 19 and 21 of the constitution of Indiana. Allied provisions &
Indecent Representation of Women (Prohibition) Act, 1986 ( Section 3 and 4) are also
applicable as they help in the protection of women‘s dignity by prohibiting advertisement and
publication of indecent representation of women respectively. IPC section 340 is applicable
because they were wrongfully confined in the warehouse and were not allowed to fo
anywhere.

2. Whether there was any undue infringement of right to privacy by the search of
private documents and letters which were not meant for the interest of general public.
disclosure.

There was no undue infringement of right to privacy by the Police authorities in conducting
search and seizure and further disclosing certain evidential information in the Charge sheet
as it was done within the ambit of law. There have been several landmark cases which have
ruled that the public has the right under Right to information act to be made aware of every
information they need to know. Also it is pertinent to mention that certain informations need
to be disclosed for the interest of general public.

3. Whether there is a violation of Article 20(3) if any private unpublished

document/ information has been used in order to convict the Accused

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ARGUMENTS ADVANCED

1. The Constitutionality of Sections 67 A, 69 A and 69 B of the

Information Technology Act, 2000 (as amended) and applicability of
allied provisions of IPC ( Section 340 ) & Indecent Representation of
Women (Prohibition) Act, 1986 ( Section 3 and 4).

Sections 67 A, 69 A and 69 B of IT Act 200 along with allied provisions of IPC and
sections 3 & 4 of Indecent Representation of Women (Prohibition) Act, 1986
are constitutionally valid as they are not in violation of of Article 14, 19(1)(a) and 21
of the Constitution. The susceptibility of wanton abuse does not render any law
as arbitrary or unreasonable, and the mere possibility of abuse of a legislation is no test
of its reasonableness

1.1 PRESUMPTION OF CONSTITUTIONALITY

The doctrine of presumption of constitutionality is based on the assumption that the

legislature intends to enact laws that do not contravene the provisions of the
Constitution. The power to legislate is a plenary power vested in the
legislature. Unless those who challenge the legislation clearly establish that their
fundamental rights under the Constitution are violated or that the legislature
lacked legislative competence, they do not succeed in their challenge to the enactment
carried forward in the wisdom of the legislature.

Presumption of Constitutionality of a statute or provision is followed when two

possible interpretations of a statute occur –one in violation of the Constitution and one

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in favor of the Constitution. In such a case, the interpretation that favors the
Constitution is considered valid until the petitioner proves otherwise, in a manner that
convinces the Court beyond reasonable doubt, laying the burden of proof on
the petitioner. The presumption of Constitutionality is made on grounds that a
coordinate branch of the Legislature determined that the law was constitutional before
enacting it and that they do not intend to make laws that are ultra vires to the
Constitution.

Challenge on ground of wisdom of legislation is not permissible as it is for

the legislature to balance various interests1. Merely because the court thinks
that it is arbitrary or unreasonable does not give it the power to struck down any
statute. Any such ground must be proved beyond reasonable doubt and the
ground of invalidity must be related to the constitution provisions such as article 14,
19 or 21. If there is any absurdity or ambiguity and its constitutional validity is
challenged it gives possibility to two meanings –one which gives effect to the
provision and one which renders the provision inoperative. In such a case, the meaning
which gives effect to the provision will be taken into interpretation.

In Kedar Nath Singh v. The State of Bihar2 it was held that:

―It is well settled that if certain provisions of law construed in one way would make
them consistent with the Constitution, and another interpretation would render them
unconstitutional, the Court would lean in favor of the former construction.‖
A law cannot be struck down merely because the court thinks it to be unjustified or
unwise.3 The legislature understands the need of the people and makes laws which
are directed to problems manifested by experience, the legislature make laws which
are considered reasonable and not deliberately flout a constitutional safeguard or
right.4 The court looks whether the question of law transgresses any constitutional
restriction imposed on the legislature and not to merely hold any statue misguided or
unjustified by the facts on which it is based.5

1
Mylapore Club v. State of Tamil Nadu (2005) 12 SCC 752
2
AIR 1962 SC 955
3
State of Andhra Pradesh v. McDowell & Co AIR 1996 SC 1628 at 1641
4
Ram Krishna Dalmia v. S.R. Tendolkar, AIR 1958 SC 638; Vrajlal Manilal & Co. v. State of Madhya Pradesh,
AIR 1970 SC 129; Bachan Singh v. State of Punjab, AIR 1982 SC 1325
5
Charanjit lal Chowdhary v Union of India AIR 1951 SC 41

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1.2 SECTION 67A, 69A and 69B ARE NECESSARY FOR CYBER SECURITY
The digital age is benefitting billions around the world. However, the transcendental
jurisdiction of Internet has instigated the risk to the society in the form
of cybercrimes. Cyber obscenity includes pornographic websites, pornographic
online magazines and the internet to download and transmit pornographic
pictures, photos and writing. The photographs of women are used, morphed and
circulated in the internet with indecent postures.
The sections 67A, 69A and 69B authorizes the Central Government to order to block
any data available regarding sexual explicit contents on any computer resource on the
grounds of integrity, sovereignty, defense and friendly relations with foreign state and
public order thereby making it inaccessible for the general public and this is done on
various grounds listed under the Section 69A of the Act.
Where a restriction is imposed in the interests of public order, connection of
restriction with the public order must be shown to be rationally proximate and direct.6
The requirement that any restriction must be shown to be necessary is the prong of the
tri-partite test that is most frequently violated. "Necessary" here does not mean what
the government in power considers to be necessary, but rather what may reasonably be
considered necessary "in a democratic society."7
Principle 1.3(b) of the Johannesburg Principles states that, to be legitimate, a
restriction must not only aim to protect a legitimate national security interest, but in
addition, it must be "the least restrictive means possible for protecting that interest.‖8

1.3 THAT THE SECTIONS 67A, 69A AND 69B ARE IN ACCORDANCE
WITH THE ARTICLE 14
The large amounts of ‗obscene‘ material that circulate on the Internet have
long attracted comment in India. As obscenity is prohibited offline in the country, so it
is online as well. The most important tools to curtail it are sections 67 and 67A of the
IT Act, prohibiting obscene and sexually explicit material respectively. Section 69A of
the IT (Amendment) Act, 2008, allows the Central Government to block
content
where it believes that this content threatens the security of the State; the sovereignty,

6
O K Ghosh v. E X Joseph, A.I.R. 1963 S.C. 812.
7
Sandra Coliver, Commentary to: The Johannesburg Principles on National Security, Freedom of Expression
and Access to Information, 20 No. 1 Hum. Rts. O 12-80, 27
8
Article19, The Johannesburg Principles on National Security, Freedom of Expression and Access to
Information, 1 October 1995, principle 1.3(b). (ASSESED ON 2/8/2016)

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integrity or defence of India; friendly relations with foreign States; public order; or to
prevent incitement for the commission of a cognisable offence relating to any of the
above. A set of procedures and safeguards to which the Government has to
adhere when doing so have been laid down in what have become known as the
Blocking Rules.
The guarantee of equality before the law is an aspect of what Dicey calls the rule of
law in England. Professor dicey9 gave three meanings of the Rule of Law
which includes Absence of Arbitrary power or supremacy of the law. it means the
absolute supremacy of law as opposed to the arbitrary power of the
government. In other words ―a man may be punished for a breach of law, but
he can be punished for nothing else.‖
In Maneka Gandhi v. Union of India,10 it was observed that ―….Equality is
a
dynamic concept with many aspects and dimensions and it cannot be
imprisoned within traditional and doctrinaire limits. Article 14 strikes at
arbitrariness in State action and ensures fairness and equality if treatment. The
principle of reasonableness, which legally as well as philosophically, is an essential
element of equality or non- arbitrariness, pervades Article 14 like a brooding
omnipresence.‖
In Interational Airport Authority case11 Bhagwati, J., quoted : ―it must… therefore,
now be taken to be well settled that what Article 14 strikes at is arbitrariness because
an action that is arbitrary, must necessarily involve negation of quality.‖

1.4 DOES NOT VEST UNGUIDED AND UNFETTERED POWER ON

THE EXECUTIVE
If a discretion controlled is followed by a policy of a statute then it does not suffer
from the conformant of unrestricted discretion.12 A discretionary power is not
necessarily a discriminatory power and abuse of power is not easily to be assumed. 13
Discretionary power is not necessarily discriminatory when the legislative policy
is
clear from the statute and the discretion is vested in the Government or other
high

9
Dicey-Law of constitution, pp. 202-3 (10th ed.)
10
AIR 1978 SC 597.
11
R.D. Shetty v. Airport Authority, AIR 1979 SC 1628.
12
Federation of Railway officers Association v. Union of India, AIR 2003 SC 1344
13
Naraindas v. State of M.P. AIR 1974 SC 1232

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authority as distinguished from a minor official. Just because of a mere

probability that the discretionary power may be abused is no ground for nullifying a
statute.14
The Supreme Court in Namit Sharma vs Union of India15 placing reliance upon D.D.
Basu‘s ‗Shorter Constitution of India‘16 observed as follows ―The Court
should examine the provisions of the statute in light of the provisions of the
Constitution (e.g. Part III), regardless of how it is actually administered or is
capable of being administered. In this regard, the Court may consider certain factors
as noticed in D.D. Basu such as the fact that the possibility of abuse of a statute does
not impart to it any element of invalidity.‖ The Supreme Court while recently
entertaining a set of PILs that challenged the constitutional validity of Sections S.66A,
S.69 and S.80 of the IT Act observed that "Instances of abuse of law would be
there. Merely because the ingredients of an offence are covered under an existing
law, that cannot be a ground for quashing it,"

1.5 THAT THAT THE SECTIONS 67A, 69A AND 69B ARE
IN ACCORDANCE WITH THE ARTICLE 19(1a) AND 19(2)
Mere discussion or advocacy of a particular cause, howsoever unpopular it is, is at the
heart of the rights under Article 19 (1) (a) of the Constitution. It is only when such
discussion or advocacy reaches the level of incitement that the permitted restrictions to
the freedom of speech and expression set out in Article 19 (2) of the Constitution kick
in.
Absolute individual rights cannot be guaranteed by any modern state. There cannot be
any right which is injurious to the community as a whole. If people were
given complete and absolute liberty without any social control the result would be
ruined.17
Liberty has got to be limited in order to be effectively possessed. In A.K . Gopalan‘s
case18, it was observed, ― man as a rational being desires to do many things, but in a
civil society his desires have to be controlled, regulated and reconciled with the
exercise of similar desires by other individuals.‖ The guarantee of each of the rights
are restricted by the constitution itself by conferring upon the State a power to impose

14
Ramkrishna Dalmia v. Tendolkar AIR 1957 SC 532
15
(2013) 1 SCC 745
16
(Fourteenth Edition, 2009)
17
Wills-Constitutional Law and the United States, 477.
18
A.K. Gopalan v. State of Madras, AIR 1951 SC 21.

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by law reasonable restrictions as may be necessary in the larger interest

of community.
Under Article 19(2), the state may make a law imposing ‗reasonable restrictions‘ on
the exercise of the right to freedom of speech and expression ‗in the interests of‘ the
securities of the State, friendly relations with foreign States, public order,
decency, morality, sovereignty and integrity of India, or ‗in relation to contempt
of Court, defamation or incitement to an offence.‘
The restriction on the rights under Article 19(1) can only be imposed by a ‗Law‘ and
not by any executive or departmental instructions. The test of reasonableness of
restriction has to be considered in each case in the light of the nature of right
infringed, the purpose of the restriction, the extent and nature of the mischief required
to be suppressed and the prevailing social order and conditions at the time.19
The
word ―reasonable‖ implies intelligent care and deliberation which reason
dictates.
A piece of legislation which may impose unreasonable restrictions in one set of
circumstances may be eminently reasonable in a different set of circumstances.
In such cases, public interests should be kept in mind.20 The court must determine the
reasonableness of a restriction by objective standard and not by subjective one. If the
legislation indirectly or incidentally affects a citizen‘s right under Article 19(1) it will
not introduce any infirmity to the validity of the legislation.21
Section 69A is a narrowly drawn provision, which falls squarely within the categories
of permitted reasonable restrictions under Article 19(2), and on the basis of the checks
and balances provided in the provision and the fact that the reasons for blocking are
recorded in writing, and therefore may be appealed by way of a writ petition, it held
that Section 69A contains several safeguards.

1.6 THAT THAT THE SECTIONS 67A, 69A AND 69B ARE
IN ACCORDANCE WITH THE ARTICLE 21

Individual rights cannot be absolute in a welfare state. It has to be subservient to the

Rights of the public at large22. The right of life and liberty so guaranteed
under

19
Santosh Singh v. Delhi Administration, AIR 1973 SC 1091
20
Virendra v. State of Punjab, AIR 1957 SC 896; State of Madras v. Row, (1952) SCR 597.
21
Hamdard Dawakhana v. Union of India, A.I.R. 1960 S.C. 554
22
Confederation of Ex-serviceman Association v. Union of India, (2006) 8 S.C.C. 399
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Article 21 is also subject to the rule of proportionality.23 Liberty is confined

and controlled by law as it is regulated freedom. It is not an abstract or absolute
freedom. The safeguard of liberty is in the good sense of the people and in the
system of representative and responsible Government which has been evolved.
Liberty is itself the gift of law and may bye law be forfeited or abridged.24
Every individual in the society has been guaranteed the rights under Article 21
however since the interests and necessities of the collective, i.e. the society as a whole
takes precedence over the singular interests of one person, any law which prescribes
specific limits on the exercise of the rights enshrined under Article 21 with the end
being the continuation of peaceful public life cannot be said to be in violation
of Article 21.

1.7 THAT ALLIED PROVISIONS OF IPC ( SECTION 340 ) &

INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986 (
SECTION 3
AND 4). APPLICABILITY

Indecent representation of women‘ means the depiction in any manner of the figure of
a woman; her form or body or any part thereof in such way as to have the effect of
being indecent or derogatory to or denigrating women or as is likely to
deprave, corrupt or injure public morality or morals. Media has emerged in a big way
as the major exploiter of woman, with changing times new ways of expression social
power have been fashioned which target the weaker components of society. The
most vulnerable target is women.

The expression ‗life‘ assured in article 21 of the Constitution does not connote mere
animal existence or continued drudgery through life. Quality of life covered by article
21 is something more than the dynamic meaning attached to life and liberty. In
Maneka Gandhi v Union of India3, it was ruled that right to life is not merely
confined to physical existence but also includes within its ambit the right to live with
human dignity.

23
Om Kumar v. Union of India, (2001) 2 SCC 386 : AIR 2000 SC 3689
24
ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207

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Sction 3 states that no person shall publish or cause to publish or cause to be

published or arrange to take part in the publication or exhibition of any advertisement
which contains indecent representation of women in any form. ‗In the
act, advertisement‘ includes any notice, circular, label, wrapper or other
document and also includes any visible representation made by means of any light,
sound, smoke or gas. The amendment suggested by the National Commission for
Women suggests to amend the definition to ―advertisement‘ includes any notice,
circular, label, poster, wrapper or other document and also includes any visible
representation made by means of any laser light, sound, smoke, gas, fibre, optic
electronic or other media‖ it states that no person shall produce or cause to be
produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet,
paper, slide, film, writing, drawing, painting, photograph, representation or figure
which contains indecent representation of women in any. The NCW recommended
that Section 2(b) of the Act be modified to read as ―Derogatory representation of
women means the depiction in any manner of the figure of a woman, her form of body
or any part thereof in such a way as to have the effect of being derogatory to or
denigrating women and is also likely to deprive, corrupt or endanger public morality
or morals.
Section 340 of the IPC is applicable as the female employees were wrongfully
restrained in the warehouse. They were not allowed to go anywhere and were
physically restricted to that warehouse only. All the elements of section 340 of IPC
are applicable in this case

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ISSUE 2:
WHETHER THERE WAS ANY UNDUE INFRINGEMNET OF RIGHT TO
PRIVACY BY THE SEARCH OF PRIVATE DOCUMENTS AND LETTERS WHICH
WERE NOT MEANT FOR PUBLIC DISCLOSURE.
1. The Commu – app which is a private messaging application developed by Zinc
Enterprises Ltd. in the year 2006 requires its users to abide by certain terms
and conditions by a ‗Click-Wrap Agreement‘25 before it‘s installation. However,
No precedent or law in the country of Indiana has ever cited about ―Click-
Wrap Agreements‖ thus, it can be concluded that there is no legal validity of
such agreements and it is a mere act of tricking the youth who are the users of such
App.
Thus, by illusory agreement these social networks cites make their way to the private
lives of users and hamper their Privacy.
2. There was no undue infringement of right to privacy by search and disclosure
of private documents.
2.1 In the landmark judgment on right to privacy26, the Court recognized that
―the right to privacy is not absolute and may be subject to reasonable
restrictions. In order to limit discretion of State in such matters, the Court has
laid down a test to limit the possibility of the State clamping down on the right
- the action must be sanctioned by law, it must be necessary to fulfill a
legitimate aim of the State, the extent of the State interference must be
‗proportionate to the need for such interference‘, there must be
procedural safeguards to prevent the State from abusing its power.‖
Similarly in the case in hand the search and seizure conducted by the police
authorities at the headquarters of Features app. Was within the ambit of law, and was
necessary to fulfill the legitimate aim of the state that is to safeguard the interest of
general public and thus such act of police authorities cannot be regarded as an undue
infringement of right to privacy.
2.2 In Malak Singh v. State of P.H the court opined that prevention of crime is one of the
prime purposes of the constitution of a police force. The preamble of the Police act,
1861 says:
"Whereas it is expedient to reorganize the police and to make it a more
efficient instrument for the prevention and detection of crime; Section 23 of the
Police Act prescribes it as the duty of police officers to collect and
communicate intelligence affecting the public peace; to prevent the
commission of offences and public nuisances‖
2.3 The police have been authorized under several acts and provisions to conduct
the investigation without hampering the fundamental rights of the citizens of Indiana.
In context to this section 47 of the code of criminal Procedure has enumerated
in the widest term possible, that;
―Search of place entered by person sought to be arrested.—(1) If any person acting
under warrant of arrest, or any police officer having authority to arrest, has reason to
believe that the person to be arrested has entered into, or is within, any place,
any person residing in, or being in charge of, such place shall, on demand of such
person

25
Click Wrap agreement’ which can be defined as web based agreements that requires assent of the party by
way of clicking the “I agree” or “I accept” button e.g. E-bay user agreement, Citibank terms and conditions, etc.
26
Draft personal Data Protection Bill, 2018.

MEMORIAL ON BEHALF OF THE RESPONDENT

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acting as aforesaid or such police officer, allow him free ingress thereto, and afford all
reasonable facilities for a search therein.‖
2.4 Further, Code of criminal Procedure can be regarded as vital authority in determining
the powers of the Police authorities similarly; Section 156 of the Code of Criminal
Procedure lays down the power of the police officer to investigate cognizable cases. ―
Any officer in charge of a police station may, without the order of a
Magistrate, investigate any cognizable case which a Court having jurisdiction over the
local area within the limits of such station would have power to inquire into or
try under the provisions of Chapter XIII.

2.5 No proceeding of a police officer in any such case shall at any stage be called
in question on the ground that the case was one which such officer was not
empowered under this section to investigate. Any Magistrate empowered under
section 190 may order such an investigation as above-mentioned.‖

2.6 Further Section 157 of the Code of criminal Procedure lays down the power of the
Police authorities to investigate
―If, from information received or otherwise, an officer in charge of a police station
has reason to suspect the commission of an offence which he is empowered
under section 156 to investigate, he shall forthwith send a report of the same to a
Magistrate empowered to take cognizance of such offence upon a police report and
shall proceed in person, or shall depute one of his subordinate officers not being below
such rank as the State Government may, by general or special order, prescribe in
this behalf, to proceed, to the spot, to investigate the facts and circumstances of
the case, and, if necessary, to take measures for the discovery and arrest of the
offender‖
2.7 The Apex Court in the ladmark judgement of Puttaswamy v. Union27 of India stated
that
―The concerns expressed on behalf of the petitioners arising from the
possibility of the state infringing the right to privacy can be met by the
test suggested for limiting the discretion of the state:
1. The action must be sanctioned by law.
2. The proposed action must be necessary in a democratic society for a
legitimate aim;
3. The extent of such interference must be proportionate to the need for
such interference;
4. There must be procedural guarantees against abuse of
such interference."
2.8 In context to the present case, Section 8 is one of the most important RTI Act as it is
an exception to the general rule of obligation to furnish information. It gives
the category of cases where the public authority is exempted from providing
the information. To such exemptions, there are inbuilt exceptions under some of
the

27
K.S. Puttaswamy V. UOI & Ors, 2017, 10 SCC (India).

MEMORIAL ON BEHALF OF THE RESPONDENT

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Provisions; where despite exemption, the state public service Commission may
call upon the authority to furnish the information in the larger public interest. This
shows the wide scope of these provisions as intended by the framers of law.
Thus, it wouldn‘t be incorrect to state that the search conducted by the police
authority as well the annexing of evidences found is justified and doesn‘t hamper
anyone‘s right to Pright to privacy as it was done in the larger public interest.
2.9 Expression public interest must be viewed in its strict sense with all its exceptions so
as to justify denial of a statutory exemption in terms of the RTI Act. In its common
parlance, the expression " Public interest" like "Public purpose" is not capable of any
precise defination. It does not have a rigid meaning, is elastic and takes its color from
the statute in which it occurs, the concept varying with time and state of society and its
needs. It also means the genral welfare of the public that warrants recognition and
protection; something in which the public as a whole has a stake.
28
2.10 In regard to the case in hand the respondent would humbly want to draw the
attention of the bench to the PCI Norms that reiterate that the media should not intrude
"the privacy of an individual, unless outweighed by genuine overriding public interest,
not being a prurient or morbid curiosity. The well accepted rule, however, is that once
a matter or information comes in the public domain, it no longer falls within the sphere
of the private. The media has failed to make the distinction between what is warranted
invasion of privacy and what constitutes as an unwarranted invasion of privacy.
29 Similarly, in the present case, the information which are regarded as private
information by the petitioner and that have been annexed with the charge sheet was a
lready in public domain and therefore, it can no longer be viewed as a private
information thus proving the actions of police authorities of annexing it with
the charge sheet a moral and legal action.
2.11 Further section 69 of the IT Act states that ;
―Any person, authorised by the Government or any of its officer specially authorised
by the Government, if satisfied that it is necessary or expedient so to do in the interest
of 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, for reasons to be recorded in writing, by order, can direct any agency of
the 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. The scope of section 69 of the IT Act includes both
interception and monitoring along with decryption for the purpose of
investigation of cyber- crimes.‖
2.12 The provisions of Information technology empower the police authority to access
to computers and data. Section 29 of the information Technology Act, 2000 reads as
follows;
―(1) Without prejudice to the provisions of sub-section (1) of section 69, the
Controller or any person authorised by him shall, if he has reasonable cause to suspect
that any contravention of the provisions of this Act, rules or regulations made

28
State of Bihar v. Kameshwar Singh, AIR 1952 SC 252., Black's alw dictionary, 8th edn.
29
Guideline 6 (i) Right to Privacy, Norm if Journalistic Conduct, PCI.

MEMORIAL ON BEHALF OF THE RESPONDENT

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thereunder has been committed, have access to any computer system, any apparatus,
data or any other material connected with such system, for the purpose of searching or
causing a search to be made for obtaining any information or data contained in
or available to such computer system.
(2) For the purposes of sub-section (1), the Controller or any person authorised
by him may, by order, direct any person incharge of, or otherwise concerned
with the operation of, the computer system, data apparatus or material, to
provide him with such reasonable technical and other assistance as he may consider
necessary.
All offences under any other law shall be investigated, inquired into, tried, and
otherwise dealt with according to the same provisions (in the Code of Criminal
Procedure), but subject to any enactment for the time being in force regulating
the manner or place of investigating, inquiring into trying or otherwise dealing with
such offences.
Thus, according to the provisions of information technology Act, 2000 the actions of
Police authority cannot be regarded as an undue infringement of right to privacy.
2.13 It is pertinent to mention that the search and seizure being steps in relation to
investigation or inquiry, they should be done according to the provisions of the Code
of Criminal Procedure, but subject to any procedure that might have been laid down by
the special enactment. Section 165(1) of the Code of Criminal Procedure confers the
power of search on the police officer. It runs thus:
―Whenever an officer in charge of police station or a police officer making
an investigation has reasonable grounds for believing that anything necessary for
the purposes of an investigation into any offence which he is authorised to
investigate may be found in any place within the limits of the police station of
which he is in charge, or to which he is attached, and that such thing cannot
in his opinion be otherwise obtained without undue delay, such officer may, after
recording in writing the grounds of his belief and specifying in such writing, so far as
possible, the thing for which search is to be made, search, or cause search to be made,
for such thing in any place within the limits of such station.
A police officer proceeding under Sub-Section (1), shall, if practicable, conduct the
search in person.
If he is unable to conduct the search in person, and there is no other person competent
to make the search present at the time, he may, after recording in writing his reasons
for so doing, require any officer subordinate to him to make the search, and he shall
deliver to such subordinate officer an order in writing, specifying the place to
be searched, and so far as possible, the thing for which search is to be made; and such
subordinate officer may thereupon search for such thing in such place.
The provisions of this Code as to search-warrants and the general provisions as
to searches contained in section 100 shall, so far as may be, apply to a search
made under this section.
Copies of any record made under Sub-Section (1) or Sub-Section (3) shall forthwith be
sent to the nearest Magistrate empowered to take cognizance to the offence, and

MEMORIAL ON BEHALF OF THE RESPONDENT

 25

the owner or occupier of the place searched shall, on application, be furnished, free of
cost, with a copy of the same by the Magistrate.30
2.14 While considering the question whether there was any undue infringement of right to
privacy by the Police authorities section 80 of the it act is of utmost importance .

In R. Rajagopal v State of Tamil Nadu 31, Auto Shankar — who was

sentenced to death for committing six murders — in his autobiography divulged his
relations with a few police officials. The Supreme Court in dealing with the question
on the right to privacy, observed, that the right to privacy is implicit in the right to life
and liberty guaranteed to the citizens of the country by Article 21. It is a ‗right to be
left alone.‘ "A citizen has a right to safeguard the privacy of his own, his
family, marriage, procreation, motherhood, child-bearing and education among
other matters.‖ The publication of any of the aforesaid personal information
without the consent of the person, whether accurate or inaccurate and ‗whether
laudatory or critical‘ would be in violation of the right to privacy of the person and
liable for damages. The exception being, when a person voluntarily invites
controversy or such publication is based on public records, then there is no violation of
privacy.
2.15 Similary in the present case there are two things to be taken consideration of :
A. Voluntary invitation of controversy by leaking personal data of its users to
other social meida apps.
B. Publication in public records, In order to maintain public records, the police is bound
to annex all evidences found so as to safeguard the larger public interest
2.16 The Apex court in numerous cases have opined that a chargesheet is a public
document

Some of them being; The Royal Sundaram Alliance vs D.Gunasekaran32 , L.S. Raju
vs Government of Mysore on 23 March, 1951

2.15.1 The powers of search and seizure are also present in several other rules, such as rule
3(9) of the Information Technology (Due diligence observed by intermediaries
guidelines) Rules, 2011 which allows access to information from intermediaries by a
simple written order by any agency or person who are lawfully authorized for
investigative, protective, cyber security or intelligence activity; or under where
any government agency may, for the prevention, detection, investigation, prosecution,
and punishment of offences, obtain any personal data from an intermediate
―body
corporate‖ which stores such data.33
2.17 Also, the respondent would like to draw the attention of court to wards Section 43A in
The Information Technology Act, 2000 which states the provision related
to Compensation for failure to protect data;
―Where a body corporate, possessing, dealing or handling any sensitive personal data
or information in a computer resource which it owns, controls or operates, is negligent
in implementing and maintaining reasonable security practices and procedures
and

30
Section 165(1) of the Code of Criminal Procedure
31
R. Rajagopal v. State of T.N 1995 MANU/SC/0056 (India).
32
The Royal Sundaram Alliance vs D.Gunasekara, 2010 MANU/DE/0793 (India).
33
rule 6 of the draft Reasonable Security Practices Rules, 2011 framed under Section 43A of the Information
Technology Act,
MEMORIAL ON BEHALF OF THE RESPONDENT
 26

thereby causes wrongful loss or wrongful gain to any person, such body
corporate shall be liable to pay damages by way of compensation to the person so
affected.

2.18 The SPDI Rules have been issued under Section 43A of the IT Act. Section
43A, relates to ―Compensation for Failure to Protect Data‖ and enables the
enactment of
―reasonable security practices and procedures‖ for the protection of sensitive personal
data. The Information Technology Act, 2000 delegates the power to define the term
‗sensitive personal data and information‘ (SPDI) and prescribe ‗reasonable
security practices and procedures‘ (RSPP) in the Rules. 34
2.19 The Rules define SPDI as personal information which consists of (i) passwords, (ii)
financial information such as bank account, credit and debit card details, (iii) physical,
physiological and mental health conditions, (iv) sexual orientation, (v) medical
records and (vi) biometric information.
2.20 The Rules provide procedures for collecting and storing SPDI. SPDI may be shared
only with the prior consent of the individual. However, SPDI may be shared
with government agencies on a written request for the purpose of investigation,
prevention, prosecution and punishment of offences. The government agency may not
share such information further with third parties. SPDI may also be transferred
between entities if it is necessary for performance of the entity‘s contract with
the information provider. However, such transfer is only allowed if the entities ensure
the same level of protection.
2.21 The Rules provide for mandatory disclosure of information to government agencies.
As this requirement is not a definition of SPDI, it appears that the provision is
included as part of RSPP. However, the RSPP Rules can be overridden by an
agreement between the user and the data holder. This implies that the access to
government agencies may be denied by private agreement.
Further, The Supreme Court has determined that the right to privacy is a part of the
fundamental right to life guaranteed under Article 21. This right may only be
restricted by procedure established by law. The Rules provide for disclosure of
information to a government agency on the basis of a written request stating
the purpose of such disclosure. This procedure is different from the procedure
provided for under other laws. For example, under the Criminal Procedure Code a
search may be conducted with a search warrant issued by a magistrate. Interception of
telephonic conversation and monitoring of information stored and transmitted over the
internet are permissible only upon an order by the Home Secretary to the
central or state government.
2.21 In M.P. Sharma v. Satish Chandra the Supreme Court upheld the validity of
the power of search and seizure under the Code of Criminal Procedure though a
seizure and carrying away is a restriction of the possession and enjoyment of
the property seized. As the restriction is only temporary for the limited purpose of
investigation it was held that there is no violation of Article 19(1)(f) of the
Constitution.

34
Reasonable Security Practices and Procedures and Sensitive Personal Data and Information Rule.
35 M.P. Sharma v. Satish Chandra MANU/SC/0018/1954 : AIR 1954 SC 300
MEMORIAL ON BEHALF OF THE RESPONDENT
 27

2.22 In Radha Kishan v. State of U.P.36it has been held that

― if the provisions of Sections 103 and 165, Code of Criminal Procedure are
contravened, the search could be resisted by the person whose premises
are sought to be searched. Though the process of search and seizure
interferes with the right of the citizens, it has been held to be not an
infringement of the fundamental rights, as it is only a temporary restriction for
the limited purpose of investigation. In M.P. Sharma's case AIR 1964 SC 309
referred to above, the Supreme Court proceeded to observe that the power of
search and seizure is an overriding power of the State for the protection of
social security and that power is always regulated by law.‖
2.23 In light of all the above argumnets, the respondent humbly submits that there had not
been any undue infringement of right to privacy by the Search and disclosure of
private documents.

36
MANU/SC/0146/1962 : AIR 1963 SC 822

MEMORIAL ON BEHALF OF THE RESPONDENT

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SUB ISSUE 1 : PRIVATE DOCUMENT CAN BE USED AS AN EVIDENCE

Private Document when of public interest becomes a public document .

In the present case, The letter written by Harry to his ex. girlfriend was private document
until the data was leaked. As soon as the data containing obscene pictures of women, went
viral amongst various social networking sites and subsequently resulted in the search and
seizure of the headquarters , the private document (letter) became of public interest
subsequently converting into a public document.

Once the document is public it can be annexed as an evidence to the charge sheet filed by the
police, which is a public document.37

SUB ISSUE 2 : THAT THE EVIDENCE USED IS RELEVANT

According to The Indian Evidence Act , 1872

Section 3 defines as Evidence, ― Evidence‖ means and includes—
(1) all statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry, such statements are called oral evidence;
(2) [all documents including electronic records produced for the inspection of the Court],
such documents are called documentary evidence.

Broadly, Evidence can be classified into various types amongst which the Direct and
Indirect or Circumstantial evidence being of primary importance to decide the cases. Direct
evidence are ones which if taken into account is believed to establish a fact in issue whereas
Indirect or Circumstantial evidence is the evidence which gives rise to logical inferences as
to establish the existence of a fact.

Circumstantial evidence may be conclusive or presumptive.38

The letter written by Harry to his ex. girlfriend Karry (the private document) is a conclusive
circumstantial evidence. A circumstantial evidence is conclusive when there is a connection
between the principal fact and the evidentiary fact and hence are bound to no explanations
and no contradictory evidence. As stated in the fact sheet , post- January 2009 it was noticed
that the private information of majority of the users shared by them on the application was

37
R v. Arumugam, AIR Mad 189 , Tola Ram v. Dist. Judge, AIR 2008 (NOC) 2310(Raj).
38
Ranchhoddas, Ratanlal and Thakore, Dhirajlal Keshavlal . The Law of Evidence . 23rd Edition. LexisNexis
Buttersworths Wadhwa. 2011

MEMORIAL ON BEHALF OF THE RESPONDENT

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leaked on the internet. To be particular, the data which went viral was of women ,depicting
obscene content. Subsequent to that during investigation the above talked letter was found ,
the content of text was related to womanhood and how Harry, who wrote the letter to his ex.
girlfriend wanted to expand the perspective of the Women.

The principle fact and the evidentiary fact are closely related thus making it a conclusive
circumstantial evidence and thus bringing into picture the concept and significance of
conduct under section 8 of The Indian Evidence Act,1872. Conduct means the external
behavior of a person, whereas character can be said to be an impression about a person in
the minds of others.39 Conduct of an accused must have nexus with the crime committed.40
The conduct previous or subsequent conduct of any person accused of an offence is relevant
if such conduct influence or is influenced by any fact in issue or relevant fact.41 The conduct
of the person is considered to be relevant if his conduct is related with the incident and so
far so forth the two should be closely related. Such conduct that is closely related to the
incident would thus help the case to move forward and arrive at a conclusion. The writing of
letter (Evidence) and the leaking of the data are closely related as they are part of the same
transaction , that is they are related , thus bringing the question of conduct. Harry wanted to
expand the perspective of womanhood keeping the morality stagnant and alive but Morality
being a subjective aspect of study results in variation of it from person to person. What
maybe moral to one maybe immoral to another and vice- versa. The conduct of Harry
implies that in the expansion of womanhood, he has taken his ambit of morality into
consideration, Nudity to Harry is moral but for the society like Indiana it is immoral , thus
creating the rage amongst people and accusing him for outraging the modesty of women.
His conduct and expression completely relatable to leaking of pictures does creating a high
probative value of the evidence in order to decide its relevancy.

SUB ISSUE 3 : THAT THE PRIVATE DOCUMENT IS NOT VOILATIVE

OF ARTICLE 20(3)

Article 20(3) declares that no person accused of an offence shall be compelled to be a witness
against himself and is in accord with the Indian Evidence Act, 1872.42

39
AIR 1997 SC 318.
40
Criminal appeal no. 602 of 2002
41
Ujjagar Singh v. State of Punjab (2007) 13 SCC 90
42
Section 132 of The Indian evidence act

MEMORIAL ON BEHALF OF THE RESPONDENT

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In the case of M.P. Sharma v. Satish Sharma 43 it was held that The phrase used in Art. 20(3)
is ―to be a witness‖ . A person can be a witness not merely by giving oral evidence but also
by producing documents or making intelligible gestures as in the case of a dumb witness or
the like. To be a witness " is nothing more than " to furnish evidence ", and such evidence can be
furnished through the lips or by production of a thing or of a document or in other modes.

In the present case, Neither Harry is imparting any of his personal knowledge44 about the
incident nor he himself is furnishing the evidence through production of documents. Thus he
doesn‘t come in the ambit of the definition of ‗to be a witness‘ given by the supreme court in
the case of M.P. Sharma v. Satish Chandra.

it was held in the case State of Bombay v. Kathi Kalu Oghad And Others 45of that Article
20(3) does not apply to the stage of investigation.

In the case in dispute, The private document (letter by harry) which is annexed to the charge
sheet as an evidence is not voilative of article 20(3) as filing of the charge sheet comes in the
extent of Investigation, which is immuned to Article 20(3).

in the case of V.S Kuttan Pillai v. Ram Krishnan 46, the court held that The immunity against
self- crimination extends to any incriminating evidence which the accused may be compelled
to give. It does not extend to cover such situation as where evidence which may have
tendency to incriminate the accused is being collected without in any manner compelling him
or asking him to be a party to the collection of the evidence. Search of the premises occupied
by the accused without the accused being compelled to be a party to such search would not be
violative of the constitutional guarantee enshrined in Article 20(3).

Talking about the case in light in consonance with the above case, The accused was not the
party to the search and seizure at the headquarter and subsequently did not furnish the private
document on his own , therefore the Evidence which was the result of search and seizures
stands not to be violative of Article 20(3) .

Hence to conclude the judgements of the above citated case laws provide that using of private
unpublished document is not voilative of fundamental rights given under Article 20(3).

43
1954 SCR 1077
44 Singh, Mahendra P. V. N. Shukla‘s Constitution of India . 11th Edition. Eastern Book Co. 2010.
45 1961 AIR 1808
46 1980 AIR 185

MEMORIAL ON BEHALF OF THE RESPONDENT

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MEMORIAL ON BEHALF OF THE RESPONDENT