1

TC- 435

4th SYMBIOSIS LAW SCHOOL, HYDERABAD, NATIONAL MOOT COURT

COMPETITION-2019

BEFORE THE HON’BLE HIGH COURT OF BROOMLAND

NEUTRAL SINDHIA
(PETITIONER)

V.

FUNBOOK Pvt. Ltd. …. RESPONDENT1

DIT ….RESPONDENT2
(RESPONDENT)

PETITION INVOKED UNDER ART. 226 OF

THE CONSTITUTION OF SINDHIA

UPON SUBMISSION TO THE

MEMORANDUM ON BEHALF OF THE APPELANTS

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TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS

2. INDEX OF AUTHORITIES

3. STATEMENT OF JURISDICTION

4. STATEMENT OF FACTS

5. ISSUES RAISED

6. SUMMARY OF ARGUMENTS

7. ARGUMENTS ADVANCED

8. PRAYER

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LIST OF ABBREVIATIONS

Abbreviation FULL FORM

S. Section

Pvt. Private
Ltd. Limited

DIT Department of Information Technology

IT Information Technology

i.e. That is

Inc. Incorporation

CTC Current Tamil Nadu Case

Cl. Clause

Hon’ble Honorable

IPC India Penal Code

AIR All India Record

SC Supreme Court

No. Number

Viz. namely, in other words

Para. Paragraph

Prof. Professor

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INDEX OF AUTHORITIES

S. No. Authorities
1. Books The Constitution of Sindhia
HALSBURYS LAWS OF ENGLAND(4TH EDITION) (Vol
I, para 89)
2. Legislative Act Information Technology Act 2000
Information Technology Rules 2011
Sensitive Personal Data Rules
Data Protection Directive 1995

3. Case Laws  The Registrar (Judicial), Madurai Bench of Madras

High Court vs. The Secretary to Government, Union
Ministry of Communications, Government of India,
New Delhi and Ors. 2018 (1) CTC 506
 Sabu Mathew George vs. Union of India and Ors.
AIR 1963 SC 1295
 RE: PRAJWALA SMW(Crl) No. 3/2015
 S.MUTHUKUMAR ... PETITIONER(S) Vs 1.THE
TELECOM REGULATORY AUTHORITY OF
INDIA and others WP (MD) No. 7855 of 2019
 Kharak Singh vs. The State of U.P. and Ors. AIR
1963 SC 1295
 Romesh Thappar v. State of Madras, AIR 1950 SC
124 : 1950 SCR 594:
 O.K.Ghosh v. E.X.Joseph, AIR 1962 SC 812, at 814
 Madhu Limaye v. S.D.M., Monghyr, AIR 1971 SC
2486 : (1970) 3 SCC 746
 Ranjit Udeshi v. State of Maharashtra, 1965 AIR 881,
1965 SCR (1) 65
 Chandbrakant Kalyandas Kakodar v. State of
Maharashtra,1970 AIR 1390, 1970 SCR (2) 80
 State of Orissa v. Ram Chandra Dev AIR 1964 SC
685
 S.M.D Kiran Pasha v. Govt. of Andhra Pradesh
 (1990) 1 SCC 328
 Union of India v. W.N.Chadha AIR 1993 SC 1082
 Mani Subrat Jain v. State of Haryana AIR 1977 SC
276
 K.A. Abbas V. Union of India AIR 1971 SC 481

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 Justice K.S. Puttaswamy V. UOI, AIR 2015 SC 3081

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STATEMENT OF JURISDICTION

The jurisdiction of this Hon’ble High Court has been invoked under Article 226 of the
Constitution of Sindhia.

Article 226:

Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers,
throughout the territories in relation to which it exercise jurisdiction, to issue to any person
or authority, including in appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of
the rights conferred by Part III and for any other purpose

(2) The power conferred by clause (1 ) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay
or in any other manner, is made on, or in any proceedings relating to, a petition under
clause ( 1 ), without

(a) furnishing to such party copies of such petition and all documents in support of the
plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the party
in whose favour such order has been made or the counsel of such party, the High Court
shall dispose of the application within a period of two weeks from the date on which it is

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received or from the date on which the copy of such application is so furnished, whichever
is later, or where the High Court is closed on the last day of that period, before the expiry
of the next day afterwards on which the High Court is open; and if the application is not so
disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the
expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme Court by clause ( 2 ) of Article 32

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STATEMENT OF FACTS

1. The Country of Republic of Sindhia, the laws of which are similar to India, is a land
of diversities. The majority population of Sindhia follow Sindhuism .The second largest
religion is Jeruslam. According to the Constitution of Sindhia, it is a secular and
democratic nation. Often, Sindhus condemned the followers of Jeruslam as anti-nationals
and associated them with Jerustan, a Jeruslam majority neighboring country.
2. The present government of Sindhia has started initiatives such as ‘Digital Sindhia’. A
flip side of this initiative is that the social media platforms are being misused by
politically motivated parties, who are spreading hate speech and blasphemous contents to
trigger riots and violence in the country.
3. Broomland is in the territory of Sindhia on which Jerustan claims territorial
sovergenity over. The laws of Broomland are similar to Delhi, India. On December 8,
2018, a migrant worker named Frazil of Jeruslam, was killed in the state of Broomland
and his body was then burnt there. The whole incident was videotaped and uploaded on
Funbook along with sermon against the Jeruslams. Before Video 1 could be taken down
from Funbook, it became viral on its messaging application called ChatOn which uses
end-to-end encryption technique to transmit messages.
4. The ministry of home affairs took no cognizance of the matter despite being
repeatedly informed by of the citizens. The Government accused Funbook of refusing to
co-operate and provide them with data regarding the spreading of Video 1 through
ChatOn and Funbook on the grounds that the privacy of their users was of utmost
importance to them.
5. On receiving repeated complaints from users, ChatOn and Funbook came up with a
revised user policy where under if 50 or more users complain about the content of any
post uploaded or shared on such social media, the same will be immediately removed.
Further, through a new feature of their application, ChatOn and Funbook ensured that any
video which has graphic content was blurred and an express consent from the user is
taken before such video is played.

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6. Immediately after Video 1 went viral, processions were taken out by

AkhilBhartiyaSindhuSanstha (“ABSS”) in Jeruslam populated localities shouting anti-
Jeruslam slogans and shouting “Go to Jerustan” and “JhandaUchaRahe”. And also a
video of a Sindhu woman being raped by a group of men wearing religious Jeruslam
lockets went viral on Funbook and ChatOn (“Video 2”). It was observed in Video 2 that
the men were shouting “Sindhia belong to Jerustan”. The mass circulation of that video
caused massive riots and violence in the state of Broomland.
7. Lady Unnamed whose rape video had become viral in Video 2 repeatedly pleaded
Funbook and ChatOn to remove and prevent further circulation of the same. Funbook
provided documentary evidence of the fact that they have complied with all the legal
requirements under the Information Technology Act 2000 and have processed her
complaint. Lady Unnamed was not satisfied with the response received from Funbook
and ChatOn and therefore, she urged The Government of Sindhia to intervene.

8. Neutral Sindhia, a public spirited non-governmental organization, requested Funbook

to remove Video 1 and Video 2. Lady Unnamed and Neutral Sindhia made a written
request To the Grievance Officer of Funbook stating that the said videos should be
urgently taken down. Funbook declined to take down the said videos and related contents
because as per Funbook’s policy 50 people had to complain for Funbook to take down
any content from Its platform. Funbook refused to entertain any further queries/ requests
from the Petitioners.

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ISSUES RAISED

1. Whether the writ of Mandamus is maintainable or not?

2. Directions to the Government of Sindhia under the Information Technology Act 2000 to:

i. Regulate the functioning of the platforms run by intermediaries;

ii. Ensure that the privacy rights of the users/citizens are not compromised and are
duly protected.

3. Directions to the DIT and/ or any other appropriate authority to discharge their executive,
statutory and all other obligations in relation to safeguarding of privacy of Lady Unnamed
and prevent public access of any information which threatens the security of Sindhia and
public order.

4. Take down of videos by the respondent 1 (Funbook pvt. Ltd.) and payment of
compensation to Lady Unnamed.

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SUMMARY OF ARGUMENTS

1. WHETHER THE SAID WRIT PETITION OF MANDAMUS IS MAINTAINABLE

OR NOT?

The said writ petition should be maintainable because the fundamental rights of the
constitutional remedies guaranteed under part III where by any citizen can approach any
competent High Court for enforcement of his fundamental rights. A writ of Mandamus
should be issued by the court for relief. Since the High Court of Broomland is a
competent authority with the definition of Article 226. We are approaching to this court.

2. DIRECTION TO GOVERNMENT OF SINDHIA UNDER INFORMATION

TECHNOLOGY ACT 2000 TO :

a- Regulate the functioning of the platforms run by intermediaries;

The platform like Funbook and ChatOn are intermediary and hence they have to regulate
their functioning under IT Act, but still the spreading of Video1 and Video2 on their platform
which are against the guidelines of Intermediary is a violation of IT Act and the policy of 50
complaints to remove the videos are arbitrary and hence their functioning should be regulated
as stated in IT Act.

b- Ensure that the privacy rights of the users/citizens are not compromised and are
duly protected.
The privacy rights of user/citizens are also important and hence the violation of these rights
should not be ignored, in present case the privacy of lady unnamed is infringe and the
Respondent1 and 2 take no action to protect it hence this is a violation of Fundamental Rights
that provided by Constitution of Sindhia.

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3. DIRECTIONS TO THE DIT AND/ OR ANY OTHER APPROPRIATE

AUTHORITY TO DISCHARGE THEIR EXECUTIVE, STATUTORY AND ALL
OTHER OBLIGATIONS IN RELATION TO SAFEGUARDING OF PRIVACY OF
LADY UNNAMED AND PREVENT PUBLIC ACCESS OF ANY INFORMATION
WHICH THREATENS THE SECURITY OF SINDHIA AND PUBLIC ORDER.

A-The Content In Videos Is Both Blasphemous And Defamatory And Cannot Come
Under The Ambit Of Freedom Of Speech And Expression As Stated Under Article
19(2).
The content of the video 1 are blasphemous and promotes hate. The content of the video has
the potential to threaten public order. And as expressed in the constitution any content that
threatens the public order should not come under the ambit of freedom of speech and
expression.
B-Obscene Nature Of Video 2 Circulating On FunBook and Chat On .
The counsel sees the video circulating on the platform of respondent 1 as obscene. Over the
years the court has changed the view point of obscenity in india. A view that started view
hickin or miller test later in light of the arguments and changing time. The court observed that
the best way to judge a subject matter, is by verifying it in terms of its acceptance in
community standard.

4. TAKE DOWN OF VIDEOS BY THE RESPONDENT 1 (FUNBOOK PVT. LTD.) AND

PAYMENT OF COMPENSATION TO LADY UNNAMED.
A-Video 2 should be taken down
As the video depicting rape of a woman by several men in public has no artistic nor does it
have a view point of education. It is merely a woman deprived of her dignity in public. This
video is offensive to female gender as a whole and thus should be taken down.
B-Factors to be taken under consideration while deciding the compensation for lady
unnamed.
As the video is obscene and offensive to the Lady unnamed. As the central point of law to
establish justice in the society. In this case it not be done without compensating the lady
Unnamed who has suffered consequences of carnal side of male personality.

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ARGUMENTS ADVANCED

1. WHETHER THE SAID WRIT PETITION IS MAINTAINABLE OR NOT?

1.1 The counsel humbly submits that the writ petition is maintainable. Mandamus (mandatory
order) is most extensive remedial nature, and is, in form, a command issuing from the High Court
of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do
some particular thins specified in it which appertains to his or their office and is in the nature of
the public duty .Whereas the older authorities concerned with restoration, admission and election
to offices and delivery and production and inspection of documents, in modern times the purpose
of a mandatory order is to compel the performance of a public duty, whether of an inferior court
or tribunal to exercise its jurisdiction, or that of an administrative body to fulfill the obligations
cast upon it. It is discretionary remedy and may issue in cases where, although there is an
alternative legal remedy, that mode or redress is less convenient, beneficial and effective.1
2
Article 226 of the constitution guarantees to a citizen, a fundamental right to
constitutional remedies under part III3 whereby any person can approach the Central High
Court of Broomland to enforce rights guaranteed to him under Article 2264. The
honorable court then may in accordance pass writs to ensure enforcement of the rights
given in part III5. Article 2266 thus provides for an expeditions and inexpensive remedy
for protection of fundamental rights from legislation and executive interference.
1.2 Article 2267 does not specify the person who can approach the court under it. But as this
article provides a public law remedy similar to Article 328, similar provisions of locus
standi apply to it as to Article 329. Ordinarily a person whose legal rights or other legally
protected interests are adversely affected should approach the court for relief State of

1
Halsbury’s Laws of England, 4th Edn.. ( Re-issue), Vol-1 (1) Para 133
2
Ibid.
3
Ibid.
4
Ibid.
5
Ibid.
6
Ibid.
7
Constitution Of Sindhia 1950
8
Ibid.
9
Ibid.

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Orissa vs Ram Chandra Dev10. The petitioner need not wait till the infraction of his right;
he can also approach the court against imminent threat of such infraction S.M.D Kiran
Pasha vsGovt of Andhra Pradesh11. Mandamus is a judicial remedy which is in the form
of a superior court to any government, court, corporation or public authority to do or to
forbear from doing some specific act which that body is obliged under law to do or retrain
form doing, as the case may be and which is in the nature of a public duty and in a certain
cases of statutory duty A.T.Markose12. The writ has been so defined in Halsbury13. No
one can ask for a Mandamus without a legal right. There must be a judicially enforceable
as well as legally protected right before one suffering a legal grievances can ask for a
mandamus. A person can be said to aggrieve only when he is denied a legal right by
someone who has a legal duty to do something and abstains from doing it Mani Subrat
Jain vs State of Haryana14.The counsel humbly submits that Right to Privacy is infringed
of lady unnamed as her raped video went viral on Respondent1 platform as there is a duty
of statutory authority to protect her fundamental right but the DIT authority denied to take
any action to protect her right. Hence the petitioner comes under the writ petition of
Mandamus.
1.3 The legal duty must be of a public nature. In Praga Tools Corporation V. C. V. Imanual 15
the supreme court stated that mandamus might under certain circumstances lie against a
private individual if it is established that he has colluded with public authority. The High
Courts exercising their jurisdiction under Article 226 have power to issue a writ of Mandamus or
in the nature of Mandamus where the Government or a public authority has failed to exercise or
has wrongly exercised discretion conferred upon it by a statue or a rule or a policy decision of the
Government or has exercised such discretion malafide or on irrelevant consideration. In all such
cases, the High Court can issue writ of Mandamus and give directions to compel performance in a
proper and lawful manner of the discretion conferred upon the Government or a public authority
In appropriate cases, in order to prevent injustice resulting to the concerned parties, the Court may
itself pass an order or give directions which the Government or the public authority should have
passed, had it properly and lawfully exercised its discretion. Supreme Court went to the length of
even giving directions to promote the respondent as they had been wrongfully denied the same.16

10
AIR 1964 SC 685
11
(1990) 1 SCC 328
12
Judicial Control of Administrative Action in India
13
HALSBURYS LAWS OF ENGLAND (4TH EDITION) (Vol I, para 89)
14
AIR 1977 SC 276
15
AIR 1969 S.C. 1306
16
Controller and Auditor-General of India v. K.S. Jagannathan,(1986)2 SCC 679

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1.4 The counsel hereby humbly submits that the Respondent1 provides a platforms for
sharing posts some of which hereby is objectionable and instigate the recent riots in State
of Broomland and unable to take down the videos after receiving complaints for the same
on the other side Respondent2 who has power to direct the intermediary to remove the
objectionable videos form their platform is also has take no action against the
intermediary despite the knowledge of spreading riots in State of Broomland because of
these videos, hence the council humbly submits that this writ petition of Mandamus is
maintainable.

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2. DIRECTIONS TO THE GOVERNMENT OF SINDHIA UNDER THE

INFORMATION TECHNOLOGY ACT 2000 TO:
i. Regulate the functioning of the platforms run by intermediaries;
ii. Ensure that the privacy rights of the users/citizens are not compromised and are
duly protected.

2.1 An intermediary is any person who receives, stores or transmits an electronic record on
behalf of another person or provides any service with respect to that record. The Section then
clarifies that the term includes telecom service providers, network service providers, Internet
service providers, web hosting service providers, search engines, online payment sites, online
auction sites, online marketplaces and cyber cafes. This list is non-exhaustive and Section
2(1)(w) also covers entities such as social media websites, blogging platforms, message
boards, consumer review websites and so on. In other words, virtually any website that
features user-generated content and a large number of Internet service providers fall within
the definition of an intermediary17. The information publisher is not only publishing its own
‘in house’ content but also buys from other content providers / third parties uploading their
own content on the platform ( website) provided by any such service providers. This may
include social networking sites like facebook.com . or in this case Funbook and ChatOn.
2.2 Power to issue directions for interception or monitoring or decryption of any information
through any computer resource.. s. 69 empowers the Central Government or the State
Government or any officers who are specially authorized to issue orders for the interception,
monitoring or decryption of information. The section states that a subscriber or intermediary
or any other person who fails to assist the agency which passes such a direction shall be
punished with imprisonment for a term which may extend to seven years and shall also be
liable for a fine. However, certain prerequisites must be fulfilled to the satisfaction of these
authorities before an order for interception may be made under s. 69(1), these include, (a)
interest of sovereignty or integrity of Sindhia, (b) the security of the State, (c) friendly
relations with foreign States, (d) public order, (e) preventing incitement to the commission of
any cognizable offence18. The council humbly submits that in present case the circulation
and spreading of VIDEO1 against the integrity of Sindhia , security of the state , friendly
relation with state , public order as it incite the riots among the religious groups of

17
Information Technology Act 2000, Section 2(w)
18
Information Technology Act 2000, Section 69(1)

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Sindhuism and Jeruslam. Whereas VIDEO2 is not just against public order and integrity of
Sindhia but it contains obscene content which is against the guidelines of Intermediary Rules
but still the Funbook refuses to curb it down and allow its further sharing the same on their
platform.
2.3 Power to issue directions for blocking for public access of any information through any
computer resource. S. 69A states that where the central government or any of its officers
specially authorized by it in this behalf is satisfied that it is necessary , in the interest of
Integrity of Sindhia, 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, it
may subject to the provisions of sub-section (2), direct any agency of the government or
intermediary to block for access by the public any information generated, transmitted,
received, stored or hosted in any computer resource. The procedure and safeguards subject to
which such blocking for access by the public may be carried out, shall be such as may be
prescribed. The intermediary who fails to comply with the direction issued under this section
shall be punished with an imprisonment for a term which may be extend to seven years and
shall also be liable to fine.19 The council humbly submits that the VIDEO1 and VIDEO2
both are against the guidelines of Information Technology Act and it should be removed by
the intermediary within 36 hours when intermediary get the knowledge of same. But the
intermediary does not take any action as per their duty but instead they come-up with a new
policy of 50 complaints necessary to remove a post. The council humbly submits that this
policy is arbitrary and ultra-vires as a post which is against the guidelines of Information
Technology should be removed within the 36 hours after the same knowledge get to an
Intermediary but after repeated complaints and letters to grievance officer of Funbook Pvt.
Ltd. and DIT no action is taken in respect to that.
2.4 In a leading case, The court held that “the service providers cannot abdicate their re-
sponsibilities. They cannot also plead that they have no control over the content. A mere look
at the net neutrality debate that is presently going on would show that the service providers
are in a position to have control over the content that passes through their information
highway. If the service providers can attempt to control the content content for commercial
considerations, they can certainly be called upon to exercise their power of control in public
interest also. Rather they must be mandated to do so.” The court thus directed the Central

19
Information Technology Act 2000, section 69A

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Government to take appropriate steps to bring “Over The Top” services into a legal
framework obliging them to comply with the laws of India and to provide the required
information to the law enforcing agencies - “Methods must to be devised to ensure that those
OTTs which could not be brought within such framework are not accessible in India.” The
court also requested the government to amend laws and regulations so that Indian laws are
applicable to these foreign services and law enforcement can get access to relevant
information at crucial points.20The counsel herby submits that the Funbook Pvt. Ltd. has full
control to remove the objectionable post from their platform and hence their contention of
using end-to-end encryption code can be breached to remove the objectionable post.
2.5 In another case, the court issued interim orders directing Google, Microsoft and Yahoo to
‘auto-block’ pre-natal sex determination ads from appearing in search results. The court also
drew a list of forty keywords that were to be auto-blocked if anyone attempts to look them
up. Expert in-house committees were directed to be formed by search engines to evaluate and
delete content violative of Section 22 of the PCPNDT Act “based on its own understanding.”
The Supreme Court also directed the Central Government to constitute a nodal agency for
receiving complaints from anyone who came across anything that has the nature of an ad-
vertisement or has any impact in identifying a boy or a girl in any method, manner or mode
by any search engine. The nodal agency was then required to convey actionable complaints to
the concerned intermediaries, who were obliged to delete the content in question within 36
hours and intimate the nodal agency. 21
2.6 In similar case which is still pending before the court has passed the order of we had required
the parties before us i.e. Yahoo, Facebook Ireland, Facebook India, Google India, Google
Inc., Microsoft and WhatsApp to let us know the status of progress made pursuant to the
recommendations accepted by these entities as mentioned in the Report of the Committee.
None of these entities has filed anything to show us the progress nor any of these entities is
ready with any response pursuant to our aforesaid order. The Registry will accept the
affidavit filed by these entities along with costs of ' 1 lakh rupees each which will be kept in a
fixed deposit for a short term period immediately upon receipt.22
2.7 In recent judgment , “This Court's endeavour is to safeguard the people using cyber space
becoming victims, especially woman and children. Any technological innovation should be

20
2018 (1) CTC 506
21
AIR 2018 SC 578
22
SMW (Crl) No. 3/2015

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utilized for constructive activities and not be used for commission of offences violating rights
of the people.”23
2.8 (2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub clause in the interests of the sovereignty
and integrity of India, the security of the State, friendly relations with foreign States, public
order, decency or morality or in relation to contempt of court, defamation or incitement to an
offence.24 While in a leading case the court held that pre-censorship and claimed equality of
treatment with such other forms. The Court, however, held that pre-censorship of films was
justified under Article 19(2) on the ground that films have to be treated separately from other
form of art and expression because a motion picture was able to stir up emotions more deeply
than any other product or art. Hence classification of films between two categories, i.e.,
‘A’(Only for Adult) and ‘U’ (for all) was held to be valid.25 The council humbly submits that
the contention of DIT to not give direction to Respondent1 in relation to take down the
offensive videos as infringing of Fundamental right of Speech and Expression is baseless as
discussed above the right is not absolute in Sindhia and there are reasonable restriction on the
rights can be imposed in a situation like this where the VIDEO1 and VIDEO2 are the main
reason of spread of riots in State of Broomland hence these posts are against public order and
sovereignty of the state hence DIT can give direction to Respondent1 to take down the videos
from their platform.
2.9 As the judgment and authorities cited above the council humbly submits that the direction
should be given to government and intermediary to remove VIDEO1 and VIDEO2 should be
removed from platform of Respondent 1 to stop the hate speech and spreading of riots.

Privacy Rights of citizens/users

23
WP (MD) No. 7855 of 2019
24
Article 19(2) in The Constitution Of Sindhia 1949
25
AIR 1971 SC 481

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1. Sensitive Personal Data or Information is “personal information” which includes any

information related to, “(i) password; (ii) financial information such as bank acc. or credit
card or debit card or other payment instruments details; (iii) physical, psychological and
mental health condition; (iv) sexual orientation; (v) medical record and history; (vi) biometric
information; (vii) any detail relating to the above clauses as provided to body corporate for
providing service; and (viii) any of the information received under above clauses by body
corporate for processing, store or processed under lawful contract or otherwise”. 26 The
Member States are required to prohibit the processing of personal data revealing racial or
ethnic origin, political opinions, religious or philosophical beliefs, trade union membership
and the processing of data concerning health or sex life.27 The aforesaid types of data are
generally considered sensitive personal data. a body corporate or any person who on behalf of
a body corporate collect, receives, possesses, stores, deals or handles information to provide a
privacy policy for handling of or dealing in personal information including sensitive personal
data or information and ensure that such policy is available for viewing by providers of
information under lawful contract. The Privacy policy must be published on the website of
the body corporate or any person on its behalf and must provide for : (a) Clear and easily
accessible statements of its practices and policies; (b) Type of personal or sensitive personal
data or information collected. (c) Disclosure of information including sensitive personal data
or information as provided in rule6. (d) Purpose of collection and usage of such information.
(e) Reasonable security practices and procedures as provided under Rule8.28Body corporate
to provide policy for privacy and disclosure of information.— (1) The body corporate or any
person who on behalf of body corporate collects, receives, possess, stores, deals or handle
information of provider of information, shall provide a privacy policy for handling of or
dealing in personal information including sensitive personal data or information and ensure
that the same are available for view by such providers of information who has provided such
information under lawful contract.]29This section provides protection against breach of
confidentiality and privacy of the data. As per this, any person upon whom powers have been
conferred under IT Act and allied rules to secure access to any electronic record, book,
register, correspondence, information document of other material discloses it to any other

26
Sensitive Personal Data Rules 2011, Rule 3
27
Data Protection Directive , Article 8
28
Sensitive Personal Data Rule 2011
29
IT (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011

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person, shall be punished with imprisonment which may extend to two years or with fine
which may extend to one lakh rupees or both.30 Section 72A will make service providers and
intermediaries liable for imprisonment up to two years and fine up to five lakh rupees for
disclosing personal information of their subscribers without the subscriber’s consent and with
the intent to cause injury or wrongful loss to the subscriber.31
2. The Indian constitution guarantees a fundamental right to privacy. This was upheld in a
decision of a nine judge constitutional bench of the Supreme Court in August 2017. This case
was brought to the Supreme Court after the claim in the 2015 by Mukul Rohatgi, the then
Attorney General stated that there is no constitutionally guaranteed right to privacy. This
claim was denied by the nine-judge bench of the court, which found that the constitution does
guarantee a right to privacy.32
3. The judgment of Kharak Singh v. State, the court held that the concept of liberty in Article 21
was comprehensive enough to include privacy and that a person’s house, where he lives with
his family in his ‘castle’ and nothing is more deleterious to a man’s physical happiness and
health that a calculated and health than a calculated interference with his privacy.33
4. The council humbly submits that the privacy of user/citizen is of utmost importance and
should never be compromised while regulating the functioning of Intermediary platform.
While the need to identify offenders cannot be denied, doing away with encryption in totality
and thus restricting the ability for users to express their opinions freely without fear of
surveillance, would not be desirable.

30
Information Technology Act 2000, Section 72
31
Information Technology Act 2000, Section 72A
32
J. K.S. Puttaswamy V. Union Of India, AIR 2015 SC 3081
33
AIR 1963 SC 1295

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3. DIRECTIONS TO THE DIT AND/ OR ANY OTHER APPROPRIATE

AUTHORITY TO DISCHARGE THEIR EXECUTIVE, STATUTORY AND ALL
OTHER OBLIGATIONS IN RELATION TO SAFEGUARDING OF PRIVACY OF
LADY UNNAMED AND PREVENT PUBLIC ACCESS OF ANY INFORMATION
WHICH THREATENS THE SECURITY OF SINDHIA AND PUBLIC ORDER.

A-The Content In Videos Is Both Blasphemous And Defamatory And Cannot Come
Under The Ambit Of Freedom Of Speech And Expression As Stated Under Article
19(2).

3.1 Article 19 (1)34 has two concepts ‘public order’ and ‘security of state.’ The scope of ‘public
order’ is wider than that ‘security of state.’ 35As the Supreme Court points out in O.K.Ghosh
v. E.X.Joseph –“ in Art. 19 (2), there exist two expressions ‘public order’ and ‘security of
state’. Thus, ‘security of state’ having been specifically and expressly provided for, “public
order cannot include the security of state, though in its widest sense it may be capable of
including the said concept. Therefore, in cl. (2), public order is virtually synonymous with
public peace, safety and tranquillity”.36
3.2 The term ‘public order’ covers a small riot, an affray, breaches of peace, or acts disturbing
public tranquillity. But ‘public order’ and ‘public tranquillity’ may not always be
synonymous. For example, a man playing loud music in his home at night may disturb public
tranquillity, but not public order. Therefore, such acts as disturb only the serenity of others
may not fall within the term ‘public order’.37
3.3 As already stated in the statement of facts, video 1 which was uploaded on Funbook Pvt. Ltd.
contains murder of a man named Frazil along with a sermon against the Jeruslams, captioning
it “Go to Jerustan” and “Jhanda Ucha Rahe.” The counsel sees this as blasphemous and
promotion of hate. The content of the video under no circumstances comes under the ambit of
freedom of speech and expression provided by part III of the constitution, Article 19 (2) .

34
Constitution of Sindhia
35
Romesh Thappar v. State of Madras, AIR 1950 SC 124 : 1950 SCR 594:
36
O.K.Ghosh v. E.X.Joseph, AIR 1962 SC 812, at 814
37
Madhu Limaye v. S.D.M., Monghyr, AIR 1971 SC 2486 : (1970) 3 SCC 746

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3.4 As evident from the aforementioned judgments public order and tranquillity are two different
concepts. Any content that threatens safety and peace of the nation is against the public order.
The videos circulating on the space of respondent are nothing but against the public order.

B-Obscene Nature Of Video 2 Circulating On FunBook and Chat On .

3.5 As previously cited in the statement of facts the ‘video 2’ depicts a women being raped by a
group of men wearing religious Jeruslam lockets. Further in the video two men can be heard
shouting “Sindhya belongs to Jerustan.” This video became viral on Funbook and the slogan
of Sindhya belonging to Jerustan became a hit. As an after effect of mass circulation of the
aforementioned video cause massive communal riots.
3.6 In Ranjit Udeshi v. State of Maharashtra 38the Supreme Court established a modified version
of Hicklin test as the test for the obscenity in India. The Supreme Court observed – “that the
test of obscenity to adopt in India is that obscenity without a preponderating social purpose or
profit cannot have the constitutional protection of free speech and expression and obscenity
in treating sex in a manner appealing to the carnal side of human nature or having that
tendency. The obscene matter in a book must be considered by itself and separately to find
out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt
those whose mind are open to influences of this sort and into whose hands the book is likely
to fall. In this connection the interest of our contemporary society and particularly the
influence of the book on it must not be overlooked.”
3.7 In Chandbrakant Kalyandas Kakodar v. State of Maharashtra39, the Supreme Court held that
“What is obscenity has not been defined either in section 292, IPC or in any of these statutes
prohibiting and penalizing, mailing, importing, exporting, publishing and selling of Obscene
matters. It is the duty of the court to consider the obscene by taking an overall view of the
entire work and to determine whether the obscene passages are so likely to deprave and
corrupt those who’s minds are open to influences of this sort and into whose hands the book

38
Ranjit Udeshi v. State of Maharashtra, 1965 AIR 881, 1965 SCR (1) 65
39
Chandbrakant Kalyandas Kakodar v. State of Maharashtra,1970 AIR 1390, 1970 SCR (2)
80

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is likely to fall and in doing so one must not overlook the influence of the book on the social
morality of our contemporary society.”
3.8 In the light of above judgments by the Supreme Court the counsel understands the video as
obscene as there is no artistic or other productive side to this video of a woman being raped.
It is obscene and against the decency and morality of female gender as a whole.
3.9 It is humbly submitted before this hon’ble court that such contents should not be overlooked
and circulation of such should be stopped at first sight. These content are threat to the peace
and security of nation and its people.

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4. TAKE DOWN OF VIDEOS BY THE RESPONDENT 1 (FUNBOOK PVT. LTD.)

AND PAYMENT OF COMPENSATION TO LADY UNNAMED.

4.1 The IT ACT 2000 defines intermediary as “intermediary with respect to any particular
electronic records, means any person who on behalf of another person receives, stores or
transmits that record or provides any service with respect to that record and includes telecom
service providers, network service providers, internet service providers, web-hosting service
providers, search engines, online payment sites, online-auction sites, online-market places
and cyber cafes40.

4.2 Intermediaries enjoy a special treatement in society as well as law. Intermediaries such as
Funbook and Chaton are an integral part of cyberspace in India. It is considered as a space
where people can communicate and express themselves. Despite the criticism, it is a crucial
part of our system. It is a body of empowerment that gives equal right to everyone to express.
4.3 Intermediaries special treatment is evident from section 79 sub-section(1) and (2) of the
IT ACT 2000. It states that intermediary is exempted from liability if the intermediary does
not-

(i) initiate the transmission,

(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission.

A- Video 2 should be taken down.

4.4 The Information Technology(Intermediaries guidelines)Rules,2011 in its section (3)

defines- Due diligence to he observed by intermediary.

Sub-section (4) of the aforementioned provision states-

“The intermediary, on whose computer system the information is stored or hosted or

published, upon obtaining knowledge by itself or been brought to actual knowledge by an
affected person in writing or through email signed with electronic signature about any such
information as mentioned in sub-rule (2) above, shall act within thirty six hours and where

40
. Subs. by s. 4, ibid., for clause (w) (w.e.f. 27-10-2009)

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applicable, work with user or owner of such information to disable such information that is in
contravention of sub-rule”.

4.5 As it is clear from the language of the provision, any intermediary which upon obtaining
the knowledge by-

a- The government,
b- Affected person or,
c- Email signed with electronic signature

4.6 About any such issue regarding content of the subject matter does not disable such
information shall be held liable regarding the same.

4.7 In Miller v. California (1973), the Court, in a 5-to-4 vote, ruled that material could be
banned as obscene if it met a reformulated three-part test:

 The average person, applying contemporary community standards, would find that the work,
taken as a whole, appeals to the prurient interest (Roth Test);
 The work depicts, in a patently offensive way, sexual conduct specifically defined by the
applicable state law;
 The work, taken as a whole, lacks serious literary, artistic, political or scientific value (LAPS
Test).

4.8 Considering the parameters set by the court in the aforementioned case the counsel sees
the video 2 as nothing but obscene. The intermediary is also guilty of not honoring the
guidelines provided by the Information Technology(intermediary guidelines). Thus request
this hon’ble court to direct Funbook to take down the video.

B-Factors to be taken under consideration while deciding the compensation for lady
unnamed.

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The video 2 circulating on the space of respondent if defamatory in nature to the lady
unnamed.

Recently in Prof. Imtiaz Ahmad v. Durdana Zamir the Delhi High Court observed that Under
law of defamation, the test of defamatory nature of a statement is its tendency to incite an
adverse opinion or feeling of other persons towards the plaintiff. A statement is to be judged
by the standard of the ordinary, right thinking members of the society at the relevant time.
The words must have resulted in the plaintiff to be shunned or evaded or regarded with the
feeling of hatred, contempt, ridicule, fear, dislike or [disrespect] or to convey an imputation
to him or disparaging him or his office, profession, calling, trade or business.

As in the case of Lady Unnamed the circulation of the video resulted in her being ridiculed
and shunned in the eyes of society. The video had all sorts of negative impacts on her day to
day life. It is also against her right to dignified life. This content has tendency to incite an
adverse opinion and feeling of disgust of society or any person who is exposed to this video
to the lady unnamed.

4.9 Section (47) 41 describes factors to be taken into account by the adjudicating officer while
adjudging the quantum of compensation. The adjudicating officer shall have regard to the
following factors namely-

a- The amount of gain of unfair advantage, wherever quantifiable, made as a result of the
default;
b- The amount of loss caused to any person as a result of the default;
c- The repetitive nature of the default
.
4.4 The counsel has stressed upon sub-section (b)and (c) of the aforementioned clause, the
amount of loss caused to the Lady Unnamed by her being raped and circulation of video of
the same if unquantifiable and as Funbook is a intermediary with access to every citizen of
sindhi. The repetitive nature of the default is unlimited.
4.5 The counsel would like this hon’ble court to provide the Lady Unnamed with compensation
of Fifty Lakh rupees(50,00,000) or any other amount that this hon’ble court seems fit in light
of justice.
41
The Information Technology Act 2000.

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PRAYER

Therefore in the light of issues raised, arguments advanced and authorities cited. It is most
humbly submitted before this hon’ble court that if it may please grant following directions or
order.

a. The Writ Petition Of Mandamus

b. Directions to Government of Sindhia to:

1) Direct the Funbook Pvt. Ltd. to remove Video 1 and 2 from their platform.

2) Ensure that the privacy rights of the user/citizens are duly protected.

c. Direct DIT or any other appropriate authority to safeguard the privacy of Lady unnamed and
prevent public access of any information that threatens peace and security of the nation.
d. Direct Funbook Pvt. Ltd. to immediately take down the video and provide compensation to
the Lady Unnamed.

The court may pass any other order, which this Honorable Court may deem fit in the light of
justice, equity and good conscience.

4th SYMBIOSIS LAW SCHOOL, HYDERABAD, NATIONAL MOOT COURT COMPETITION-2019