Beruflich Dokumente
Kultur Dokumente
1. PRESIDENT OF ANDHRADESAM
2. SOFTGRID MANAGEMENT…...………………………………..PETITIONERS
V.
STATE OF TRILINGA…………………………………………..RESPONDENTS
TABLE OF CONTENTS
Table of Contents………………………………………………………………………….02
List of Abbreviations……………………………………………………………………...03
Index of Authorities……………………………………………………………………….04
Statement of Jurisdiction………………………………………………………………….05
Statement of Facts………………………………………………………………………...06
Issues Raised……………………………………………………………………………...08
Summary of Arguments…………………………………………………………………..09
Arguments advanced ……………………………………………………………………..11
Prayer……………………………………………………………………………………...25
LIST OF ABBREVATIONS
INDEX OF AUTHORITIES
BOOKS REFERRED
WEBSITES REFERRED
STATEMENT OF JURISDICTION
The Petitioners have approached this Hon‟ble Court under the Writ jurisdiction as per Article
226 of the Constitution of Bharatistan and also under the inherent powers vested with the
Hon‟ble High Court under Section 482 of the Code of Criminal Procedure.
STATEMENT OF FACTS
BACKGROUND
1. Bharatistan is a Federal state in Asia and it consists of 30 states and 10 union
territories. The National Constitution of the country guarentees several fundamental
rights and freedom to the citizens, some of which are available to the non citizens.
Right to life and Personal liberty is a fundamental right conferred on all the persons in
Bharatistan. Freedom of speech and expression is available only to its citizens. The
country has a large population consisting of approximately 140 crores of people. The
Federal Government, in order to authenticate the identity of all the citizens, decided to
provise each citizen, a unique identity called, “Sadhar”.
2. Sadhar is given to all the citizens in both soft and hard copies. It consist of each
citizens‟ name, parents name, date of birth, educational qualification, woek details,
permanent address, marital status etc., All the information is secured with biometrics.
All these details of the citizens have been stored on a secure database under the
control of Sadhar Authority of Bharatistan. Further, the mandate given to the Sadhar
Authority is to prevent the data from falling into private hands, including private
persons, organizations and even unrelated government authorities.
3. Andhranadu is one of the coastal states in Bharatistan which is under the rule of
regional political party „Andhra Desam‟. The main opposition party in Andhranadu is
also an regional party called Andhra Congress. In view of the general elections
scheduled to be held within the next two months, there is a surcharged political
enivironment in Andhranadu. Both the ruling and opposition parties are determined to
win the election at any cost. One of the neighbouring states of Andhranadu is Trilinga.
Trilinga is a newly formed state, carved out of Andhranadu about five years back,
under the State Reorganization Act which permitted both the states to use the catipal
of Trilinga, Bhagyanagara as the common capital for a period of 10 years.
THE DISPUTE
5. The data of all the voters mainteained by softgrid contained identical information
available with the Sadhar Authority of the Federal Government and that the entire
information, including the sensitive information of individual voters was made
available to the ruling party in Andhranadu. He also found out that the same data was
used by the ruling party workers to apply for deletion of the names of the voters
known to be the supporters of the main opposition party i.e., The Andhra Congress in
Memorandum for the Respondents 6
2ND JUSTITIA MOOT COURT COMPETITION, 2019
Andhranadu. His own vote was deleted by the Election Comission though he had not
applied for deletion from the list.
JUDICIAL TREATMENT
8. Aggrieved by the action of the police, Softgrid Management and the President of
Andhra Desam filed a writ petition before the Moot Court (similar to the Hon‟ble
High Court of Trilinga) to quash the proceedings. In view of the larger issues
involved, the matter was referred to a Constitutional Bench of the Court to decide the
following issues.
ISSUES RAISED
ISSUE NO. I
ISSUE NO. II
ISSUE NO. IV
ISSUE NO. V
SUMMARY OF ARGUMENTS
It is humbly submitted by the petitioner that the supreme court of India in the case of
Justice „K.S. Puttaswamy (retd) v. Union of India & Ors. 2017’ held that the right to
privacy is an intrinsic part of the fundamental right to life and personal liberty under Art.
21 of the constitution of India. In this regard, the court has recognized „Informational
Privacy‟ as an important aspect of right to privacy which can claimed against state and
non-state actors.
ARGUMENTS ADVANCED
I. The Supreme Court of India delivered a landmark judgment in the case of Justice
K.S. Puttaswamy (Retd.),and Anr. v. Union of India & Ors1, wherein it was held
that the right to privacy is an intrinsic part of the fundamental right to life and
personal liberty under Article 21 (in particular and in all fundamental rights in Part
III which protect freedoms in general) of the Constitution of India. It was held that
the Constitution of India must evolve with the circumstances of time to meet the
challenges thrown up in a democratic order governed by the rule of law and that
the interpretation of the Constitution of India cannot be frozen on the perspectives
present when it was adopted.
II. The Supreme Court acknowledged that the concept of the right to privacy has
evolved from the basic right to be let alone, to a range of negative and positive
rights. The Court recognized 'informational privacy' as an important aspect of the
right to privacy that can be claimed against state and non-state actors, but such a
right is not an absolute right and may be subject to reasonable restrictions. Further,
the Court has laid down a test to limit the possibility of the State clamping down
on the right, i.e., such an action must be sanctioned by law, it must be necessary to
fulfil a legitimate aim of the State, the extent of the State interference must be
'proportionate to the need for such interference' and there must be procedural
safeguards to prevent the State from abusing its power.
1
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors, AIR 2015 SC 308 1.
III. Law which encroaches upon privacy will have to withstand touchstone of
permissible restrictions on fundamental rights. In context of Art 21 an invasion of
privacy must be justified on basis of law which stipulates procedure which is fair
and reasonable. An invasion of life or personal liberty must meet three-fold
requirement of (i) Legality, which postulates existence of law (ii) need, defined in
terms of legitimate state aim (iii) proportionality which ensures rational nexus
between objects and means adopted to achieve them.
IV. In District Registrar and Collector, Hyderabad v Canara Bank2, The court held
that the right to privacy is considered as a right which attaches to the person and
information provided by an individual to a third party (in that case a bank) carries
with it a reasonable expectation that it will be utilized only for the purpose for
which it is provided. Secondly, Parting with information (to the bank) does not
deprive the individual of the privacy interest. The reasonable expectation is allied
to the purpose for which information is provided. Thirdly, while legitimate aims of
the state, such as the protection of the revenue may intervene to permit a disclosure
to the state, the state must take care to ensure that the information is not accessed
by a private entity. The decision in Canara Bank has thus important consequences
for recognizing informational privacy.
V. In “Justice K.S Puttaswamy (Retd.) and Anr v. Union of India and ors”, Justice
DY Chandrachud rightly observed that “Right to Privacy” has been held to be
more than just physical right as it includes privacy in information about one‟s
identity”. Privacy means the right to control the communication of personally
identifiable information about any person.
VI. R.F. Nariman held in the case KS Puttaswamy (Retd.) and Anr. V. Union of India
and Ors. That “Informational privacy does not deal with the individual‟s body, but
rather with the individual‟s mind. Consequently, as part of one‟s right to privacy,
one must have complete control over the dissemination of information that is
personal. Individuals establish boundaries that “are not only physical but also
informational. It is therefore essential that “the individual knows what the data is
being used for, with the ability to correct and amend it. “Informational control
2
District Registrar and Collector, Hyderabad v Canara Bank 2005 1 SCC 496
empowers the individual to use privacy as a shield to retain personal control over
information pertaining to the person.” Informational privacy, thus, has been
conceptualized as a positive and individualistic right, which grants complete
control to the individual over information pertaining to her. No state or non-state
actors can collect, store or disseminate individual information without
prior consent i.e. by giving the subject control over the decision to part with the
information”.
VII. Every individual should have a right to be able to exercise control over his/her own
life and image as portrayed to world and to control commercial use of his/her
identity. Right of an individual to exercise control over his personal data and to be
able to control his/her own life would also encompass his right to control his
existence on internet. The right to control dissemination of personal information in
physical and virtual space amounts to a larger part of right to privacy. Further, state
must ensure that information is not used without consent of users and that it is used
for purpose and to extent it was disclosed.
The counsel on behalf of the respondents humbly submits that the alleged data theft is an
offence.
OFFENCE:
Section 40 of the IPC defines Offence as an act punishable by the Code. An Offence takes
place in two ways, either by commission of an act or by omission of an act. When a Crime is
done, any member of the public can institute proceedings against the person accused of the
offence.
DATA THEFT:
Data theft is the act of stealing computer-based information from an unknowing victim with
the intent of compromising privacy or obtaining confidential information.
The meaning of this term Data theft can be inferred by importing definition of „data‟ from
the Information Technology Act and „theft‟ from the Indian Penal Code 1860. As per the
definition of „data‟ provided under the IT Act, data includes information, knowledge, facts,
concepts or instructions in any form (including computer printouts magnetic or optical
storage media, punched cards, punched tapes) or stored internally in the memory of the
computer. On the other hand, the term „theft‟ under Section 378 of IPC3 has been defined
as- “Whoever, intending to take dishonestly any movable property out of the possession of
any person without that person‟s consent, moves that property in order to such taking, is
said to commit theft.”
In this regard, it is to be noted that the definition of “movable property” as prescribed under
Section 22 of I.P.C. only includes corporeal property. The provision pertaining to theft in
IPC does not cover „data‟, owing to its intangibility, However, if „data‟ is stored in a medium
(CD, Floppy etc.) and such medium is stolen, it would be covered under the definition of
3
K.N.Mehra V. State of Rajasthan 1957 AIR 369, 1957 SCR 623.2e
„theft‟, since the medium is a “movable property”. On the other hand, if the data is
transmitted electronically, i.e. in intangible form, it would not constitute „theft‟ under the
Indian Law. Therefore, „data‟, in its intangible form, cannot be stolen, under the Indian
Criminal Law. However, any person who indulges in such crime, also called a data criminal,
can be punished under section 405 of the Indian Penal Code, 1860 for „criminal breach of
trust‟. Section 4054 states that- “Whoever, being in any manner entrusted with property, or
with any dominion over property, dishonestly misappropriates or converts to his own use
that property, or dishonestly uses or disposes of that property in violation of any direction
of law prescribing the mode in which such trust is to be discharged, or of any legal
contract, express or implied, which he has made touching the discharge of such trust, or
willfully suffers any other person so to do, commits „criminal breach of trust‟.”
Similarly, section 405 of I.P.C. refers to “property” and not “movable property”, hence, the
word “property” is not restrictive. Therefore, ‘data‟ would be covered within the ambit of
“property” in Section 405 of I.P.C. and thus any such act would attract a penalty of
imprisonment up to 3 years, or fine, or both, under this section. This section penalizes Data
Criminals from amongst the independent contractors (Call Centers etc.) to whom Data may
be entrusted in the course of business for carrying out specific tasks /assignments.
In the case Radiological and Imaging Association Vs. Union of India and ors., it is
said that the breach of confidentiality and privacy and therefore, constitute an offence
punishable under section 72 of the Information Technology Act, 2000.
In K.R.Ravi Rathinam Vs. 1.The Director General of Police, If any person who, in
pursuance of any of the powers conferred under section 72 the Information technology Act
2000 Act, rules or regulations made thereunder, has secured access to any electronic record,
4
Om Prakash Gupta v. State of U.P 1957 AIR 458, 1957 SCR 423
book, register, correspondence, information, document or other material without the consent
of the person concerned discloses such electronic record, book, register, correspondence,
information, document or other material to any other person shall be punished with
imprisonment for a term which may extend to two years, or with fine which may extend to
one lakh rupees, or with both.
SADHAAR ACT:
In the case of Justice K.S. Putta Swamy V. Union if India, the important aspects pertaining
to „protection of information‟ are taken into consideration. Section 285 of the Sadhaar Act
puts an obligation on the Authority to ensure the security of identity information and
authentication records of individuals. Likewise, Section 296 imposes certain restrictions on
sharing information i.e. core biometric information collected or created under the Act or the
identity information.
Section 37 – the act of disclosing identity information is offence and is punishable with
imprisonment for a term which may extend to three years of with a fine which may extend to
ten thousand rupees.
Since, it constitutes a cognizable offence and the investigation of the police is in process and
the proof of commission of offence is to be processed then that the High court has no inherent
power under article 482 of Code of Criminal Procedure to interfere with the investigation by
the police and hence, the writ petition to quash the criminal proceedings is not maintainable 7.
5
Chapter VI of Aadhaar Act 2017
6
Chapter VI of Aadhaar Act 2017
7
A.S.Bindra V. Senior
It is humbly submitted before the Hon‟ble High Court that the Bhagyanagara police have
the jurisdiction to register the criminal case and prosecute the softgrid management in
Bhagyanagara and the same shall be established by the following arguments.
Section 1 of the Bhagyanagara City Police Act 8 defines the scope and extent of Police of
Bhagyanagara. Since, Softgrid is a software company situated within the territorial limits of
Bhagyanagara, the Bhagyanagara City Police has jurisdiction to prosecute Softgrid.
However, Section 154 of Cr.p.c9 provides that any police officer cannot refuse to take the
complaint if it is about the commission of a cognizable offence. Nowhere is it said that the
offence should take place within the territorial jurisdiction of the concerned police station.
The Hon‟ble Supreme Court of Bharatistan in In Satvinder Kaur v. State (Govt, of NCT of
Delhi) 10 held that
“1. At the stage of investigation, there is no question of interference under Section 482,
Cr.P.C., on the ground that Investigating Officer has no territorial jurisdiction.
2. S.H.O., has statutory authority U/S. 156, Cr.P.C., to investigate any Cognizable offence
for which a FIR is lodged.
3. After investigation is over, if Investigating Officer arrives at the conclusion that cause
of action for lodging FIR has not arisen within his territorial jurisdiction, then he is required
to submit a report U/S. 170 Cr.P.C. and to forward the case to the Magistrate empowered to
take cognizance of offence.”
The Hon‟ble High Court in the case of Satish Dhammu Rathod v. State of Maharastra11
has upheld the Section 156(2)12 of Cr.p.c. which says that no proceeding of police officer in
8
Section 1 of Hyderabad City Police Act (act no. IX of 1348 F)
9
Section 154 of the Code of Criminal Procedure
10
1999 (4) RCR (Crl.) 503 (SC).
11
Satish Dhammu Rathod v. State of Maharastra crlp. No.477 of 2016
12
Section 156 clause 2 of the Code of Criminal Procedure
any stage shall, be called in question on the ground that the case was one which the officer
was not empowered to investigate.
Under section 177 of criminal procedure code, every offence shall ordinarily be
inquired into and tried by a court with whose local jurisdiction it was committed.
In the case of Naresh Kavarchand Khatri v/s State of Gujarat & Anr 13 , Hon'ble
Supreme Court has observed whether an officer in charge of a police station has the
requisite jurisdiction to make investigation or not will depend upon a large number of
factors including those contained in Sections 177, 178 and 181 of the Code of Criminal
Procedure. In a case where a trial can be held in any of the places falling within the
purview of the aforementioned provisions, investigation can be conducted by the officer in
charge of the police station concerned which has jurisdiction to investigate in relation
thereto. It is thus clear that according to Hon'ble Supreme Court jurisdiction to make
investigation on the part of a police station is directly interlinked with the place where the
trial for that offence can be held by the court.
Hence, the counsels on behalf of the respondents contend that the Bhagyanagara Police
have jurisdiction to register and prosecute Softgrid.
13
(2008) 8 SCC 300
If any person has committed a contravention of any of the provisions of this act or of
any rule, regulation, direction or order, there shall be an adjudicating officer for
holding an inquiry in the manner prescribed by the central government. The
adjudicating officer exercises jurisdiction in respect of the contraventions in relation
14
M/s. Mascon Global Ltd. v. CCA, [Appeal No. 7/2009]
15
Yahoo India Pvt. Ltd. v. Union of India WP(C) 6654/2011
to chapter IX of the act. The supreme court in the case of Indian National Congress
16
(I) v. Institute of Social Welfare , “where the law requires that an authority before
arriving at a decision must make an enquiry, such a requirement of law makes the
authority a quasi-judicial authority”. It is clear that the adjudicating officer under the
act is a quasi-judicial authority. The adjudicating officer is limited to the
determination of contraventions and imposition under section 43, 43A, 44, and 45 of
the act only.
If the adjudicating officer is convinced that scope of case (under adjudication) extends
to offences under chapter XI of the act, needing appropriate punishment instead of
penalties, then as per the aforesaid rules, he should transfer the case to the magistrate
having jurisdiction to try the case, through the presiding officer.
The act has established the Cyber Appellate Tribunal under section 48 of the
Information Technology act, 2000 which reads as follows:
16
Indian National Congress (I) v. Institute of Social Welfare AIR 2002 SC 2158
The Cyber Appellate Tribunal having appellate jurisdiction and being an appellate
authority is entitled to exercise its appellate jurisdiction both on fact as also in law
over a decision or order passed by the controller of certifying authorities or the
adjudicating officer. It was held by the Supreme Court in Union of India v. Paras
Laminates (P.) Ltd.17, “There is no doubt that the Tribunal functions as a court within
the limits of its jurisdiction. It has all the powers conferred expressly by the statute.
Furthermore, being a judicial body, it has all those incidental and ancillary powers
which are necessary to make fully effective the express grant of statutory powers”.
The Cyber Appellate Tribunal in view of exercising its incidental and ancillary
powers has directed the adjudicating officer of the state of Maharashtra to take
cognizance of the complaint filed by ICICI account holder. Hon‟ble Justice Rajesh
Tandon, the chairperson of the tribunal opined 18: “In view of the complaint, I direct
the secretary (IT) to look into the matter and pass appropriate orders after hearing
both the parties. However, liberty is given to approach this tribunal in case no action
is taken by any if the authorities by filing a proper appeal before this tribunal”.
The power of the cyber appellate tribunal to examine the correctness, legality or
propriety of the decision or order passed by the controller of certifying authorities or
the adjudicating officer is absolute.
The police has unfettered power to investigate all cases under the code of criminal
procedure, 1973 where they suspect that a cognizable offence has been committed.
Section 78 of the information technology act, 2000 deals with power to investigate
offences by police officer not below the rank of inspector as in charge of investigation
of any offence under the Information Technology act. It was held in State of Haryana
19
v. Ch. Bhajan Lal that the investigation proceeds on the first information. That is,
17
Union of India v. Paras Laminates (P.) Ltd., Order dated 17-7-2009
18
Order dated 17-7-2009 in a complaint against ICICI bank
19
State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604: 1992 AIR SCW 237: 1992 Cr LJ 527
when any information disclosing a cognizable offence is laid before the office-in-
charge of a police station, he has no option but to register the case on the basis
thereof. If a police station refuses to register the complaint, a representation may be
given to the commissioner of police/superintendent of police. If in spite of that action
is not taken, a private complaint can be filed before the concerned court or a writ
petition under Art. 226 can be filed before the high court.
It is humbly submitted before the Hon‟ble High Court of Trilinga that the respondents in the
instant case i.e., the State Police of Bhagyanagara are entitled to relief. These are as follows:
20
Section 167 clause 1 of the Code of Criminal Procedure-Procedure when investigation cannot be completed in
twenty four hours.
21
1983 Crl.L.J. 109
Section 10(3) of The Passport Act, 1967 mentions the conditions that may lead to
impounding of passports. Under section 10(3)e24,
The Hon‟ble Supreme Court in the matter titled Suresh Nanda v. Central Bureau of
Investigation25 has clarified that under the powers enumerated in the Code of Criminal
22
Section 187 in The Indian Penal Code- omission to assist public servant when bound by law to give assistance
23
Section 187 of the Indian Penal Code
24
Section 10(3)e of the Indian Passports Act 1967
25
(2008)3SCC674
Procedure, 1973, the Police Officials may have the power to seize a Passport; however, no
power to impound the Passport has been provided. It has also been categorically laid down
that the seizure of Passport is done at a particular moment of time.
Therefore, the respondents have approached this Court to pass an appropriate order to seize
or impound the passports of the petitioners until the completion of the investigation by the
Police to prevent them from absconding.
PRAYER
Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed before the Hon‟ble High Court of Trilinga to :
1) dismiss the writ petition filed by the petitioners and let the criminal proceedings continue
And/or
Pass any other order(s) that the Hon‟ble Court deems fit in the interest of Justice, Equity
and Good conscience.
For this act of kindness, the respondents as in duty bound, shall humbly pray.
Place:
Date: