Open Challenge Rounds, 2017

TEAM CODE: OC-20

OPEN CHALLENGE ROUNDS, 2017

BEFORE THE HON’BLE SUPREME COURT OF INDOSTAN

________________________________________________________________________

FILED UNDER SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE

CONSTITUTION OF INDOSTAN

___________________________________________________________________________

BETWEEN:

Common Man Union Of Civil Liberty ( CMUCL)

..............Appellant

And

1. Government of Aridabad
2. Sober International Pvt. Ltd.

...............Respondents

WRITEEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS

Counsel appearing on Behalf of Respondent/-

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TABLE OF CONTENTS

S.No Contents Page No.s

1 Index of Authorities 3-5

 Table of Cases Cited
 Statutes
 Books Cited
 Articles Referred
 Online Resources

2 Statement of Jurisdiction 6

3 Statement of Facts 7-8

4 Statement of Issues 9

5 Summary of Arguments 10

6 Arguments Advanced 11-26

7 Prayer 26

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Index of Authorities

Table of cases cited

S.No Name of the case Citation

1 M/S Prestige Lights Ltd vs State Bank of India (2007) 8 SCC 449
2 State of Uttaranchal vs Balwant Singh Chaufal & (2010) 3 SCC 402
Ors
3 Janata Dal v. H.S. Chowdhary & Others 1991 (2) SCALE 71 [400]
4 BALCO Employees’ Union v. Union of India & 2001 IIIAD Delhi 717, 90
Others (2001)
5 Tomaso Bruno & Anr vs State Of U.P (2015) 7 SCC 178
6 V.G. Row vs The State Of Madras AIR 1951 Mad 147
7 Sharma v. Satish Chandra AIR 1954 SC300
8 Mr. 'X' v. Hospital 'Z' (1998) 8 SCC 296
9 Kharak Singh vs The State Of U. P. & Others AIR 1963 SC 1295,1964 1
SCR 332

10 Govind v State of Madhya Pradesh AIR 1975 SC 1378, 1975 3

SCR 946
11 State through Reference and others v Ram Singh and 2014 Indlaw DEL 819
another
12 Cairo, Inc., v. Crossmedia Services, Inc. 2005 WL 756610 (N.D. Cal.
2005).

STATUTES

1. Andhra Pradesh Public Safety (Measures) Enforcement Act-2013

2. The Constitution of India-1950
3. Information Technology Act-2000
4. Information Technology (Reasonable security practices and procedures and sensitive
personal data or information) Rules -2011.
5. The Indian Contract Act-1872

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6. The Indian Evidence Act 1872

7. The Motor Vehicle Act -1988

Foreign Statute:

Data Protection Act-1998.(U.K.)

BOOKS CITED:

1. L.Padmavathi, E- Contracts: Emerging Dimensions (2008).

2. T. Ramappa, Competition Law In India: Policy, Issues, And Developments (2009).
3. Dr.J.N Pandey, Constitutional Law Of India (52 Ed. 2015).
4. Mahabir Prashad Jain, Indian Constitutional Law (7 Ed. 2014).
5. Ratanlal & Dhirajlal , The Law Of Evidence (B M Prasad,Manish Mohan, 25
Ed.2013)

ARTICLES REFERRED:

1. Sean O'Reilly, E-Commerce and Contract Making, 4 IBLQ 19, 24 (2012)

2. Neil Hodge, Data Protection, 5 In-House Persp. 23, 26 (2009)
3. Paul Reid, Regulating Online Data Privacy, 1 SCRIPTed 488, 504 (2004)
4. Steven A. Bibas, Contractual Approach to Data Privacy, A , 17 Harv. J. L. & Pub.
Pol'y 591, 612 (1994)
5. Julia M. Fromholz, The European Union Data Privacy Directive, 15 Berk. Tech. L.J.
461, 484 (2000)

ONLINE RESOURCES

1. Westlaw India, http://www.westlawindia.com/ (last visited Jul 13, 2017).

2. HeinOnline, https://home.heinonline.org/ (last visited Jul 13, 2017).
3. SCC Online, http://www.scconline.com/ (last visited Jul 13, 2017).
4. Lexis India, https://www.lexisnexis.com/in/legal/ (last visited Jul 13, 2017).

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Abbreviations

Abbreviations Full-Forms

1. Co Company

2. SLP Special Leave Petition

3. Govt. Government

4. SC Supreme Court

5. HC High Court

6. SCC Supreme Court Cases

7. AIR All India Reports

8. Mad Madras

9. Pvt .Ltd Private Limited

10. P Petitioner

11. R Respondent

12. SC Supreme Court

13. S. Section

14. U/S Under Section

15. WP Writ Petition

16. U.K United Kingdom

17. Ed Edition

18. CMUCL Common Man Union of Civil Liberty

19. MORTH Ministry of Road Transport &

Highways

20. NGO Non-Governmental Organization

21. PIL Public Interest Litigation

22. & And

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STATEMENT OF JURISDICTION

It is humbly submitted that Respondent has the honour to submit before the Hon’ble
Supreme Court of Indostan, the memorandum for the respondent in an appeal filed by the
appellant under Article 136 of the Constitution of Indostan, 1950

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STATEMENT OF FACTS

1. Initially 2nd Respondent’s i.e., Sober International Private Limited cab service is a
multinational app-based cab service providers who in 2014 made their entry in Indostan
transportation especially in states of Aridabad, Didiland and Yogidabad market through
Sober India Pvt. Ltd which is its wholly owned subsidiary.
2. Respondent no. 2 took a percentage of profit from Sober drivers in lieu of the highly
advanced application they have provided which helps these drivers who got themselves
registered to connect with the passengers who have downloaded the app. At the time of
downloading this app, users have agreed to all terms and conditions which include any
future amendments to the terms and conditions by Respondent no. 2 which includes
giving up of any right provided to them by data privacy and protection laws. By this, the
users have explicitly given their permission and consent to handle their payment related
data the way the Respondent no. 2 were already handling.
3. The app also offers upfront pricing whereby the consumers are shown a price estimate
before booking the cab which helps them to estimate the expense that will be incurred.
4. The cabs of Respondent no. 2 are air-conditioned, comfortable and well maintained. The
fares are also very reasonable. Thus, Sober was hugely popular among the passenger and
captured the consumer market easily. And because of this, the local taxi services faced
losses.
5. And to remedy this situation these local taxi drivers launched their own app-based cab
service provided to the consumers in the name of Hola Technologies Private Limited
through their cab app Hola.
6. Respondent No. 2 charged their customers using a fare calculating technology based on
GPS, while Appellant No. 2used traditional taxi meters.
7. The Government (Respondent No.1) intervened when an extraordinary number of
consumers complained about the surge prices which were imposed by these app-based
cab services. In July 2016 Ministry of Road Transport & Highways (“MORTH”) framed
the “Aridabad City Taxi Rules, 2016” under the City Taxi Act, 2016 to regulate app-
based cab services.

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a) Rule 6.9 sets the limit on the maximum amount that could be charged over and
above the normal fare and specifies that the Indostani app-based taxi service
providers could not charge more than Rs. 2000 as additional fare per ride

b) Rule 6.10 prescribes a penalty for the contravention of Rule 6.9. It postulates that
for the first contravention of rule a penalty of Rs. 3, 00,000 is to be paid. And in
the case of any subsequent contravention, this Rule mandated cancellation of the
license to do the business of the private app-based taxi service provider.

8. At this moment part of the Hola drivers wanted to shift from traditional meters to which
the majority of the Hola drivers disagreed due to the fact that this shift would demand to
sustain significant costs.

9. Rules 7.1 to 7.6 were later introduced because of the increase in the instances of rape,
molestation of sexual harassment. These rules require the app-based cab services to install
cameras in the cabs which would monitor the inside of the cab continuously and this
footage is to be stored for a year.

10. Sober complied with these rules also and installed cameras in all of its cabs while Hola
claimed it would entail costs for doing so and they didn’t install any cameras in their
cabs.

11. It is alleged by the petitioners that the respondents have violated the right to privacy,
equality and the rules are unconstitutional and that sober has violated rights given to the
public under contract and data protection and privacy laws.

12. Hola has donated a substantial amount of money to A Non-Governmental Organisation

i.e, Common Man Union of Civil Liberty (Appellant) to file this writ petition to which
the former has also joined afterward.

13. The High Court of Aridabad upon hearing both the sides decided in favour of the
Government of Aridabad and Sober. Aggrieved by the decision, CMUCL has filed a
Special Leave Petition before the Supreme Court of Indostan.

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STATEMENT OF ISSUES

1. Whether the Special Leave Petition filed by Common Man Union of Civil Liberty
(CMUCL), a Non-GovernmentalOrganisation is maintainable or not?
2. Whether the Aridabad City Taxi Rules 2016, framed by the Ministry of Road
Transport & Highways (“MORTH”) substantially ultra vires to the Constitution of
Indostan as it was arbitrary, unjust and unfair and violated the right to equality of the
taxi service providers or not?
3. Whether the Rules were in contravention of the right to privacy to which that the
citizens of Indostan were entitled to as a Fundamental Right?
4. Whether the Sober has violated contract and data privacy/protection laws of Indostan
in a manner that has severely impacted larger public interest?

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SUMMERY OF ARGUMENTS
1. Whether the Special Leave Petition filed by Common Man Union of Civil
Liberty (CMUCL), a Non-Governmental Organisation is maintainable or not?
It is humbly submitted that the Special Leave Petition (SLP) filed by the Appellant is
not a valid Special Leave Petition. Special Leave petition is discretionary and is to be
considered only when there is gross injustice caused to the party or in any special
circumstances. The writ petition (P.I.L.) filed by the Appellant in the High Court of
Aridabad is based on motivated interest and thus is an invalid writ petition. So it is
strictly liable to dismiss.
2. Whether the Aridabad City Taxi Rules 2016, framed by the Ministry of Road
Transport & Highways (“MORTH”) substantially ultra vires to the Constitution
of Indostan as it was arbitrary, unjust and unfair and violated the right to
equality of the taxi service providers or not?
It is most humbly submitted that the taxi rules framed by the Ministry of Road
Transport & Highways are not arbitrary or unjust or unfair. The Ministry framed those
rules keeping in mind the increasing instances of rape, molestation, and harassment
which are not be ignored whatever the case may be. Every fundamental right provided
to the citizen come along with reasonable restrictions. These rights have to be waived
when the interest of general public comes into the picture.
3. Whether the Rules were in contravention of the right to privacy to which the
citizens of Indostan were entitled as a Fundamental Right?
It is humbly submitted that the rules framed by MORTH are not in contravention of
the right to privacy. The right to privacy is not a fundamental right as given by the
Constitution of Indostan. It is not an absolute right either. It can be subjected to
reasonable restrictions as necessary for the protection of the general public.
4. Whether the Sober has violated contract and data privacy/protection laws of
Indostan in a manner that has severely impacted larger public interest?
It is submitted that the sober did not violate any contract or data privacy laws of
Indostan and certainly did not impact of a larger public interest. The terms and
conditions agreed by the users of the app included a future consent clause. Those
conditions include giving up of any right applicable under the data protection laws. In
those agreed terms and conditions the Respondent no. 2 has explicitly taken the
permission to handle their customer’s payment related data in the manner they are
already handling.
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ARGUMENTS ADVANCED

ISSUE-1
1. Whether the Special Leave Petition filed by Common Man Union of Civil Liberty
(CMUCL), a Non-Governmental Organisation is maintainable or not?

May it please your Lordship,

1.1 Special Leave Petition filed by the Appellant in the present case is not maintainable.
1.1.1 It is most humbly submitted that the Special Leave Petition (SLP) filed by the
Appellant is not maintainable basing upon the following contentions raised on behalf of
respondent.

1.1.2 It is submitted that Special Leave Petition is dealt under Art. 136 of the Indian
Constitution, 1950. This Article provides that the Supreme Court with a discretionary power
to grant special leave to appeals from any judgement, decree, sentence or order in any case or
matter caused or made by any court or tribunal. This power conferred on the Supreme Court
can’t be used by the individuals as a matter of right. It should be used sparingly.

1.1.3 It is further submitted that at present this appeal raises from the Hon’ble High court
of .Aridabad which heard this matter already and adjudged the judgement in favour of
Respondents. Now, the special leave petition filed by the Appellant would be not
maintainable because of various lacunas in their Public interest litigation where filed before
the Hon’ble High Court of Aridabad initially.

1.1.4 It is most respectfully submitted that a grant for special leave to appeal may be
rejected for several reasons such as:1

i) The Appellant is time barred.

ii) Defective presentation
iii) When Appellant is lack of locus standi to file the petition
iv) The Conduct of the petitioner disentitles him to any indulgence by the court
v) The question raised in the petition is not considered fit for consideration by the
court or doesn’t deserve to be dealt with by the apex court.

1
M.P. Jain Indian Constitutional Law; page 233 of (7 ED. 2014).

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1.1.5 It is further submitted that counsel would rely in the case of M/S Prestige Lights Ltd
vs. State Bank of India2 where the Hon’ble Supreme Court dismissed the Special leave
petition in limine as the petitioners did not approach the Court with clean hands. The Court
stated that “A party, whose hands are soiled, cannot hold the writ of the Court.”

1.1.6 It is humbly submitted that in the present case 2nd Respondent’s company (i.e., Sober
India Pvt. Ltd.) has provided a genuine, simple and advanced technological alternative
transportation solution with its visionary app based service nothing but the 2nd Respondent’s
App where it provides quick transportation at reasonable prices. This not only made public
transport easier but also generated huge employment opportunities.

1.1.7 It is a well-known fact that the local taxis got inspired by 2nd Respondent’s App
based company and launched their own app under the name of Hola. But they couldn’t cope
up with the advanced technology used by us in some areas such as that of fare calculation.
This and the high quality of service provided by 2nd Respondent’s app which has made it
difficult for the Hola Pvt. Ltd cabs to secure customers. By the way, it is also submitted that
the Hola Pvt. Ltd’s company is failed to follow the rules prescribed by MORTH and claimed
that following them would incur significant costs while en bloc respondent no. 2 cab services
followed all the rules prescribed in the legislation.

1.1.8 It is humbly submitted that the Hola Pvt. Ltd Cab Service (i.e., Hola) with a
malicious intent decided to defame the reputation of us and furnished the substantial amount
of money to Appellant i.e., Common Man Union of Civil Liberty (“CMUCL”) and illegally
colluded with them to file a frivolous & tenable writ petition under the name of Public
Interest Litigation before the Hon’ble High Court of Aridabad.

1.2 This litigation filed by the Appellant amount to an invalid Public Interest Litigation.

1.2.1 It is most humbly submitted that the PIL filed by the Appellant and averments made
in it on the Respondents in the Hon’ble High court of Aridabad is not valid, not maintainable
& tenable under the law because of following substantive reasons.

1.2.2 It is most respectfully submitted that the Public Interest Litigation has been in
existence in our country and India for more than four decades. The Hon’ble Supreme Court
and the Hon’ble High Court by their judicial creativity and craftsmanship have passed
numerous directions in larger public interest in consonance with the inherent spirits of the

2
M/S Prestige Lights Ltd vs State Bank of India ,(2007) 8 SCC 449

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Constitution. The conditions of the marginalized and vulnerable section of society have
significantly improved on account of courts directions in the P.I.L. alike mentioned in below
Para 1.2.3.

1.2.3. It is submitted that the counsel for the Respondents rely on Hon’ble Supreme Court
in the State of Uttaranchal vs Balwant Singh Chaufal & Ors3 classically laid certain
guidelines in order to preserve the purity and sanctity of the PIL Petitions. Those guidelines
state that the courts must encourage PILs which are only bona fide in nature and should aim
at the redressal of genuine public harm or public injury. The Court should ensure the absence
of any personal gain, private motive, and any oblique motive behind filing the public interest
litigation. The court should also ensure that the petitions filed by busybodies for extraneous
and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar
novel methods to curb frivolous petitions and the petitions filed for extraneous
considerations.

It is further submitted that interpretation given by Justice Pandian in the case of

Janata Dal v. H.S. Chowdhary & Others4 stated that a person for personal gain or private
profit or political motive or any oblique consideration does not have a locus standi.
Similarly, a vexatious petition under the colour of PIL brought before the court for
vindicating any personal grievance, deserves rejection at the threshold.” In the case of
BALCO Employees’ Union v. Union of India & Others5, where the Hon’ble Supreme Court
has limited standing in PIL to individuals “acting bona fide” and has sanctioned the
imposition of “exemplary costs” as a deterrent against frivolous and vexatious Public Interest
Litigation. Since the above ingredients mentioned by Hon’ble Supreme court are clearly
absent in this appeal and the petition filed by appellant is strictly liable to dismiss.

1.3 Hola Pvt. Ltd illegally colluded with the Appellant in order to interdict the business
of the 2nd Respondent’s company.

1.3.1 It is humbly submitted that in the present case, Hola Pvt. Ltd’s company who claim
to have insufficient financial funds to follow the rules prescribed by MORTH have made
substantial donations to the NGO i.e. Common Man Union of Civil Liberty (“CMUCL”)
which filed the current PIL Petition before this bench.

3
State of Uttaranchal vs Balwant Singh Chaufal & Ors,(2010) 3 SCC 402
4
Janata Dal v. H.S. Chowdhary & Others,1991 (2) SCALE 71 [400]
5
BALCO Employees’ Union v. Union of India & Others,2001 IIIAD Delhi 717, 90 (2001)

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1.3.2. The Appellant wrongfully twinned the petition before this Hon’ble bench Appellant
haven’t disclosed the fact of donation they have made to the Common Man Union of Civil
Liberty (CMUCL) which shows their clear cut mischievousness and Hola Pvt. Ltd motivated
interest. The writ petition is not a valid PIL since the objective of filing it is a motivated
personal interest of Hola Pvt. Ltd ( Hola ) but not an impact on public interest.

Hence it is here by clear that there is Lack of public interest, and also which Hon’ble High
Court did not err in refusing relief form basing on this the SPL filed by the Appellant should
be strictly liable to be dismissed.

ISSUE - 2

2. Whether the rules framed by the government were substantially ultra vires to the
constitution of indostan as it was arbitrary, unjust and unfair and violated the right to
equality of the taxi service providers or not?

May it please your Lordship,

2.1 Interference of 1st Respondent (i.e, MORTH) is justifiable under the law

2.1.1. Since there were increased complaints against the higher pricing mechanisms by all
app-based cab service providers demanded government intervention. Then the 1st Respondent
i.e., Ministry of Road Transport & Highways (MORTH) has framed the Aridabad City Taxi
Rules, 2016 under the City Taxi Act, 2016 to regulate app-based cab service providers to
address the concerns of passengers. The rules on the issue among those are rules 6.9, 6.10 and
7.1 to 7.6.

 Rule 6.9 sets the limit on the maximum amount that could be charged over and above
the normal fare and specifies that the Indostani app-based taxi service providers could
not charge more than Rs. 2000 as additional fare per ride

 Rule 6.10 prescribes a penalty for the contravention of the Rule 6.9 it postulates that
for the first contravention of the rule a penalty of Rs. 3, 00,000 is to be paid. And in
the case of any subsequent contravention, this Rule mandated cancellation of the
license to do the business of the private app-based taxi service provider.

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 Rules 7.1 to 7.6 required the app-based cab service providers to install cameras in the
cab that would continuously video record the inside of the cab. The Rules also
mandated preserving of the recorded video footages for at least one year.

2.1.2 It is respectfully submitted that basing on the Section 110(1)(i) of the Motor
Vehicles Act, 1988 gives power to the Central Government to make rules regulating the
construction, equipment and maintenance of motor vehicles and trailers with respect to
equipments essential for safety of drivers, passengers and other road users.

2.1.3 The Aridabad City Taxi Rules were framed with an intention of uberrima fides to
minimize the fare burden on users which they might otherwise incur due to the arbitrary fare
calculating methods of these app-based cab services and to create a safe environment in cabs
to the general public.

2.1.4 It is humbly submitted that the surge prices if not regulated would go so high the
common man cannot afford. The surge system works on demand and supply basis. In a
particular area if the demand for the cabs increases so does the price. In instances like this the
riders either have to wait or pay more. This system was particularly criticized for its use
during night times. The aggregators state that the surge benefits the customers while it is
obvious that the customers are far from happy. At times it would go as high as 50 times the
normal rate. So to prevent this arbitrary fare imposition the framing and implementation of
the Rules 6.9 and 6.10 will benefit the users.

2.2 Reasonable cause to install the cameras in these app based cabs

2.2.1 It is most respectfully submitted that Rules 7.1 to 7.6 talk about installation of
cameras and recording the inside of the cab and storing the video footage for a year. The
cameras will help prevent crimes from being committed. If an individual knows that there is a
surveillance camera in a certain area, they may be less willing to commit a crime near the
location for the fear of being caught. If a crime is committed in an area where a surveillance
camera has been set up, the chances of catching the criminal are much higher. Facial
recognition software has improved greatly over the years, which means that if a person is
caught on camera committing a crime, the chances of them being caught is much higher. Any
footage that is on a surveillance camera that captures a crime being committed can be used in
a court of law as evidence against the accused. The Supreme Court in its recent judgment in

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the case of Tomaso Bruno & Anr vs State Of U.P6, viewed that “omission to produce
CCTV footage which is the best evidence, raises serious doubts about the prosecution
case.”In the present situation, a woman is not safe in a public transport due to molestation
and frequent rapes committed by cab drivers.

2.2.2. The Aridabad City Taxi Rules framed by Respondent no. 1 (MORTH) under the
City Taxi Act, 2016 aid to rectify this situation. These rules aim at the securing of public
safety and wellbeing. So, these rules can’t be termed as unfair, unjust and arbitrary. These
Rules do not violate the concept of Right to Equality.

2.2.3 Persons who are in the like circumstances should be treated equally. on the other
hand where persons are groups of persons are not situated equally, to treat them as equals
would itself be violative of Article 14 as this would itself result in inequality. as all persons
are not equal by nature or circumstances, the varying needs of different classes or sections of
people required differential treatment.

2.2.4 It is submitted that both the 2nd Respondent and Hola cab services are “app-
based.” They come under same classification. Both work in the same manner where the users
book their ride using the respective apps. The both cab services impose surge prices during
particular time periods which are arbitrary and might go beyond the affording capability of
common man.

2.2.5. It is further submitted that intent of the Government is to save the passengers
from arbitrary fare imposition and install the cameras is based on the problems which arose in
recent times in regards to both the cab service providers. So the imposition of the rules by
MORTH on both these cab services in the same way does not violate the right to equality.

2.2.6. The Rules given by MORTH do not violate the right to equality to the. Article 14
runs thus:

"The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India."

“Equality before law” and Equal protection of laws” are two different conceptions. These two
phrases are taken from the constitutional doctrine of Britain and United States. Dicey
enunciated that the doctrine of Equality before law is a part of rule of law which forms the

6
Tomaso Bruno & Anr vs State Of U.P,(2015) 7 SCC 178

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fundamental principle of the British Constitution. When Professor Dicey speaks of the
principle being an essential part of the Constitution, it only means that the laws of the land
shall be enforced against all persons equally without any distinction being made on any
ground whatsoever. It is in this sense that the phrase "equality before the law" is used
in Article 14. The impugned Rules do not offend this principle. The concept of reasonable
classification present in Article 14 would have no relevance to a preference or discrimination.

2.2.7 It is further submitted that even if they do not belong to the same class the Dicey’s
concept of equality before law will be applicable here. This means that even if they do not
belong to the same class ordinary law made in the interest of general public will be binding
on every class. This principle has been well stated in the case of V.G. Row vs The State Of
Madras7

2.2.8 It is most respectfully submitted that “No fundamental right is an absolute right”.
So, the government can interfere with the fundamental rights in interest of general public.
The Rules made by Respondent no. 1 are aimed at the protection of general public so here
right to equality can be restricted. So these rules are applicable to both the cabs. Hence there
is no violation of Right to equality.

Hence the rules framed are not ultra vires to the Constitution of Indostan. They are not
arbitrary, unjust and unfair and did not violate or abridge the fundamental right i.e., equality
of the taxi service providers. Hence the rules framed by MORTH are valid and enforceable
before the court of law

7
V.G. Row vs The State Of Madras, AIR 1951 Mad 147

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ISSUE – 3

3. Whether the rules were in contravention of the right to privacy that the citizens of
indostan were entitled to as a fundamental right or not?

May it please your Lordship,.

3.1 Increase of continuous rapes, molestations and other sexual harassments

towards woman lead government to compulsion in making the law.

3.1.1 It is most humbly submitted that in the year 2017, increased number of instances
of rape, molestation, and harassment of women by the drivers of cabs was noticed. And to
remedy this situation Rules 7.1 to 7.6 were introduced in the Aridabad City Taxi Rules,
2016under the City Taxi Act, 2016. The rules required the cab service providers to install
surveillance cameras in the cabs that would monitor the inside of the cab. The rules also
mandated the service providers to preserve the recorded videos for atleast a year.

3.2 Motor Cab is a public mode of transport:

3.2.1 It is humbly submitted that a common misconception that cabs come under the
purview of a private vehicle. But section 2(35) of Motor Vehicles. act, 1988 states that a cab
is a public service vehicle. A motor cab is defined under section 2(24) as “motor cab”
means any motor vehicle constructed or adapted to carry not more than six passengers
excluding the driver for hire or reward. By interpreting this it can be said that the app based
cab services are motorcabs. Section 2(35) states that public service vehicle means any motor
vehicle used or adapted to be used for the carriage of passengers for hire or reward, and
includes a maxicab, a motorcab, contract carriage, and stage carriage. And thus cab is a
public transport service. Many public places are equipped with surveillance camera in interest
of general public.

3.2.2 It is humbly submitted that the Andhra Pradesh Public Safety (Measures)
Enforcement Act-2013 in India has directed for the installation of CCTVs in establishments.
These include malls, bus stands and Metros. There re many instances where the state and
central government has directed to install cameras in public transportation vehicles. The app-
based taxi services fall under this class as well. The West Bengal government also has made
it mandatory to install CCTV cameras in the cab services there.

3.2.3 The petitioners alleged that these rules were in the intervention of the right to
privacy which is a fundamental right. It is a well-known fact that every fundamental right
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given to the citizens has some reasonable restrictions. But the point which is to be noted is
that the right to privacy is not a fundamental right. The Supreme Court in the case of
Sharma v. Satish Chandra8 held that “Constitution-makers did not recognize the
fundamental right to privacy”. In the case of Mr. 'X' v. Hospital 'Z'9, the Supreme Court
stated that 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.
An infringement of privacy must be justified by a compelling state interest, and the infringing
law must be narrowly tailored to serve that interest. Similarly, Kharak Singh vs. The State
Of U. P. & Others10 in the petitioner Kharaksingh challenged the constant surveillance on
him by U.P police on grounds of violation of article 19 and 21. But a six judges bench of
Supreme Court struck down the petition holding that Right to Privacy is not guaranteed under
the constitution. It was in Govind v State of Madhya Pradesh11case when Supreme Court
recognized Right to Privacy as implicit in the Right to Life and Personal Liberty guaranteed
by Article 21 of the Constitution. However, the court made it clear that this was not an
absolute right and reasonable restrictions can be imposed on basis of public interest.

3.3 Right to privacy is neither a fundamental right nor an absolute right in this case.

3.3.1 The right to privacy is not a fundamental right. Even if it were a fundamental right
every fundamental has certain reasonable restrictions. So, in this case, the right to privacy
gives way to the right to life. So if installation of Surveillance cameras will help to prevent
instances such as rape, mollestation and sexual harrsement then such installation will come
under reasonable restriction. Further, it is fact that one person cannot have a private rights in
public places.

3.3.2 The Aridabad City Taxi Rules framed by 1st Respondent under the City Taxi Act,
2016 aid to rectify this situation. The forms of technology CCTV are becoming more and
more advanced. Work is underway to enable CCTV cameras to recognize types of behaviour
that have been associated with criminal activity. This catalogue might include, for instance,
shouting, pointing, or erratic driving.

8
Sharma v. Satish Chandra, AIR 1954 SC300
9
Mr. 'X' v. Hospital 'Z', (1998) 8 SCC 296
10
Kharak Singh vs The State Of U. P. & Others, AIR 1963 SC 1295,1964 1 SCR 332
11
Govind v State of Madhya Pradesh, AIR 1975 SC 1378, 1975 3 SCR 946

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 Cameras are already able to recognize an individual face and track it.Even the
Supreme Court in its recent judgment in the case of Tomaso Bruno &Anr vs State of
U.P12, viewed that “omission to produce CCTV footage which is the best evidence,
raises serious doubts about the prosecution case.” In the case of State through
Reference and others v Ram Singh and another13, the footage of the bus which was
taken from the CCTV cameras of a nearby hotel. The Hon’ble Supreme Court of India
held the CCTV footage was not tampered with and was considered by the court.
These footages have helped to bring the criminals to justice.

o Similar directions are also given by the Hon’ble Supreme Court of India in the case of
The Deputy Inspector General of Police and Anr. Vs. S. Samuthiram14 particularly as
regards installations of CCTV Cameras at strategic positions and to act against the
crew of public transport for failure to assist the victim appears to have fallen on deaf
ears.

So, the right to privacy is not an absolute right as said earlier. And since the cab is a public
transportation service installation of cameras in it to monitor in interest of general public
doesn’t mean that there is a violation of right to privacy.

ISSUE - 4

4. Whether the Sober has violated contract and data privacy/protection laws of
Indostan in a manner that has severely impacted larger public interest?
May it please your Lordship,
4.1 2nd Respondent did not violate any contract or data privacy and protection laws.
4.1.1 It is most humbly submitted that the Section 2(e) of the Indian Contract Act 1872
states that every promise and every set of promises, forming the consideration for each other,
is an agreement and 2(h) says that an agreement enforceable by law is a contract.
Section 10 of this act specifies about the requirements of the contract.
“What agreements are contracts: All agreements are contracts if they are made by the
free consent of parties competent to contract, for a lawful consideration and with a lawful
object, and are not hereby expressly declared to be void. Nothing herein contained shall
affect any law in force in India, and not hereby expressly repealed, by which any contract is

12
Tomaso Bruno &Anr vs State of U.P, (2015) 7 SCC 178
13
State through Reference and others v Ram Singh and another,2014 Indlaw DEL 819
14
The Deputy Inspector General of Police and Anr. Vs. S. Samuthiram,(2013) 1 SCC 598, AIR 2013 SC 14

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required to be made in writing or in the presence of witnesses, or any law relating to the
registration of documents.”

4.1.2 All these requirements are to be met for a contract to be made valid. The Sober app
asks for all these requirements. In this modern advanced era, the use of technology has
increased and the usage of e-contracts has improved. Section 10A of the Information
Technology Act, 2008 states the validity of contracts formed through electronic means. It
says that –

“There in a contract formation, the communication of proposals, the acceptance of

proposals, the revocation of proposals and acceptances, as the case may be, are expressed in
electronic form or by means of an electronic record, such contract shall not be deemed to be
unenforceable solely on the ground that such electronic form or means was used for that
purpose.”

4.1.3. As per this e-contracts are valid. But the issue of how to make amendments to this e
contract arises. This has been made easy by methods of Clickwrap and browsewrap.
Clickwrap and browsewrap are two methods of gaining agreement to your legal documents
online. By these methods one party one party can make changes without the other party
having a say or negotiating anything and these contracts are enforceable. In case of Cairo,
Inc., v. Crossmedia Services, Inc.15 the court held that browse-wrap agreements are valid and
enforceable.

The unilateral modification of contract is enforceable if these three main conditions are met:

 The users agreed to the original agreement;

 The provider must have given them reasonable notice of the changes; and
 The users. are continuing to use the service and you are continuing to perform the
service (running the website).

4.1.4 In the current case all these three requirements are met. The raiders agreed to the
original agreement while downloading and using the app. The Respondent company taxi
system app consists that “I have read the terms and conditions” tick box at the very end and
that should be assented to person (and left blank by default, requiring an additional positive
step by the customer) before being allowed to click the “I agree” button. This is to provide a

15
Cairo, Inc., v. Crossmedia Services, Inc. ,2005 WL 756610 (N.D. Cal. 2005).

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 Open Challenge Rounds, 2017

visible mark to the contract and as well as to emphasize the user’s agreeability to the
contract.

4.1.5 It is submitted that the every customer is required to scroll to the end of the terms
and conditions (in a scroll box for example) before being allowed to proceed, establishing
reasonable notice of the contract’s terms and conditions. And the users are given reasonable
notice of changes and the users continued to use the services. Hence the three requirements
are met.

4.2 Acceptance of terms & conditions

It is further submitted that in the current case the users agreed to the terms and conditions that
are given at the time of downloading the app which state that include any future amendments
that Sober makes to its terms and conditions. They also included giving up any rights under
applicable data privacy and protection laws. They have also explicitly taken the permission to
handle their customer’s payment related data in the manner that they were handling. As per
the future consent clause any future changes that are made by them are to be accepted by the
users.

The appellants filed false allegations about leakage of the credit and debit card data and poor
security facilities in Chunisia. There was no case of damaging or selling or leaking of this
data in the past. Hence the Respondent No.2 did not violate any contract laws by sending
their information to Chunisia for the purpose of storage as this was already agreed by the
consumers in the e contract.

4.3 Did the Respondents violate any Data Protection or Privacy laws?

4.3.1 The company of Respondent No. 2 is Sober International Private Limited which is
a multinational app-based cab service provider headquartered in the Disunited States of
Hoppipola. The company is so successful that it has started to expand its branches throughout
the globe. The reputation the Respondent Company has is a notable one. No undesirable
action are done by the company in its spotless history as a app based cab service. The credit
card and debit card data storage by the company is also a secure one. The vision of the
company is to provide quality service to its consumers while protecting their interest and to
give them maximum satisfaction. To achieve this company takes extreme care when it comes
to matters of its consumers especially their private data.

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4.3.2 Section 8(1) of the The Information Technology (Reasonable security practices and
procedures and sensitive personal data or information) Rules, 2011 state that

“A body corporate or a person on its behalf shall be considered to have complied with
reasonable security practices and procedures, if they have implemented such security
practices and standards and have a comprehensive documented information security
programme and information security policies that contain managerial, technical, operational
and physical security control measures that are commensurate with the information assets
being protected with the nature of business. In the event of an information security breach,
the body corporate or a person on its behalf shall be required to demonstrate, as and when
called upon to do so by the agency mandated under the law, that they have implemented
security control measures as per their documented information security programme and
information security policies.”

4.3.3 The video leaked online is due to the third party unauthorised access despite the best
measure taken by the Respondent Company to secure the footage and the privacy of the
raiders. Attempts are being made by the company to find the culprits.

As per section 8 of this act the Respondent no. 2 have implemented such security practices
and standards. They have a comprehensive documented information security programme and
information security policies that satisfy the requirement of this section. They have
implemented security control measures as per their documented information security
programme and information security policies.

4.4 Section 13 of the Data Protection Act, 1998 of U.K state that -

13.—(1) An individual who suffers damage by reason of any contravention by a data

controller of any of the requirements of this Act is entitled to compensation from the data
controller for that damage.

(2) An individual who suffers distress by reason of any contravention by a data controller of
any of the requirements of this Act is entitled to compensation from the data controller for
that distress if— (a) the individual also suffers damage by reason of the contravention, or (b)
the contravention relates to the processing of personal data for the special purposes. (3) In
proceedings brought against a person by virtue of this section it is a defence to prove that he
had taken such care as in all the circumstances was reasonably required to comply with the
requirement concerned.

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4.4.1 It is submitted that even if we consider this legislation it provides a defence of

required care to be taken which are required to be taken reasonably. The Respondent
company took all the security measures and reasonable care required to be taken as per the
legislation and also did not have any mens rea or knowledge as required to be punished under
43A, 66E and 72A of the Information Technology Act, 2000.

4.4.2 Section 43 A of the I.T Act talks about compensation for failures to protect data.

43 A Compensation for failure to protect data (Inserted vide ITAA 2006)

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 thereby
causes wrongful loss or wrongful gain to any person, such body corporate shall be liable to
pay damages by way of compensation, not exceeding five crore rupees, to the person so
affected. (Change vide ITAA 2008)

Explanation: For the purposes of this section

(i) "body corporate" means any company and includes a firm, sole proprietorship or
other association of individuals engaged in commercial or professional activities
(ii) "reasonable security practices and procedures" means security practices and
procedures designed to protect such information from unauthorised access,
damage, use, modification, disclosure or impairment, as may be specified in an
agreement between the parties or as may be specified in any law for the time
being in force and in the absence of such agreement or any law, such reasonable
security practices and procedures, as may be prescribed by the Central
Government in consultation with such professional bodies or associations as it
may deem fit.
(iii) (iii) "sensitive personal data or information" means such personal information as
may be prescribed by the Central Government in consultation with such
professional bodies or associations as it may deem fit.

4.4.3 Section 66e of the I.T Act talks about punishment for violation of privacy.

66E. Punishment for violation of privacy -

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Whoever, intentionally or knowingly captures, publishes or transmits the image of a private

area of any person without his or her consent, under circumstances violating the privacy of
that person, shall be punished with imprisonment which may extend to three years or with
fine not exceeding two lakh rupees, or with both

Explanation - For the purposes of this section—

(a) ―”transmit’ means to electronically send a visual image with the intent that it be viewed
by a person or persons;

(b) ― “capture”, with respect to an image, means to videotape, photograph, film or record
by any means;

(c) ― “private area” means the naked or undergarment clad genitals, pubic area, buttocks
or female breast;

(d) ― “publishes” means reproduction in the printed or electronic form and making it
available for public;

(e) ― “under circumstances violating privacy” means circumstances in which a person can
have a reasonable expectation that—

(i) he or she could disrobe in privacy, without being concerned that an image of his private
area was being captured; or

(ii) any part of his or her private area would not be visible to the public, regardless of
whether that person is in a public or private place.

It is submitted that the acts of the respondents do not fall under the purview of 43A of the IT
Act since there was no negligence on the part of the respondent. The company took
reasonable care and security measures as required to be taken by them. The video that got
leaked online is due to third party unauthorized access and hacking which is a rampant issue
and cannot to prevent even though the best of the security measures are taken. The acts of the
respondents do not fall under the purview of Section 66E of the IT act as for this act to apply
there must be mens rea on part of the respondents which is absent. The respondents did not
reveal any video deliberately nor did they sell any personal data to anyone. All that has
happened due to unauthorized hacking and 2nd Respondent is innocent herein.

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It is finally submitted that all the material allegations filed by the Appellant are not
true, not valid and tenable under the law. So, the petition filed the appellant before this
Hon’ble Supreme Court is not maintainable and strictly liable to dismiss.

PRAYER

It is therefore most humbly prayed before this Hon’ble court to kindly dismisses the petition
and may be pleased to adjudge and declare that:

1. Respondents actions are Valid & Justifiable under the Provisions of the Constitution of
Indosthan and did not violate any fundamental rights.

2. It is pertinent to say that Respondents does not violate an individual’s reasonable

expectation of privacy.

3. This Special leave petition is not maintainable under the law. Further, Appellants
allegations amounts to misuse of Special leave petition and accost appellant with sum
of rupees as this Hon’ble court thinks fit towards costs and expenses & for wasting the
valuable time of this Hon’ble court and as well as Respondents.

4. To upheld the Aridabad’s Hon’ble High Court decision respectively.

And / or pass such other order in light of justice, equity and good Conscience which this
Hon’ble court may feel fit and proper in the circumstances of the case.

The entire above contentions are most humbly & respectfully submitted to the bench.

Counsels for Respondents/-

1.

2.

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