Escolar Documentos
Profissional Documentos
Cultura Documentos
IN THE MATTER OF
Vs.
FUNBOOK & UNION OF SCINDIA ……………………….….RESPONDENTS-1&2
AND
W.P. (CIVIL) No. _____Of 2018
Ms. SYLVIA………………………………………………………………...PETITIONER-2
L Vs.
SEARCH ENGINE……………………………………………………RESPONDENT-3
CLUBBED WITH
W.P. (CIVIL) No. _____Of 2018
Mr. VAIBHAV DIXIT…………………………………………………….PETITIONER-3
Vs.
THE PEOPLE..............................................................................…..RESPONDENT-4
[PETITION UNDER ARTICLE 32 R/W ARTICLE 139A OF THE CONSTITUTION
OF SCINDIA]
BEFORE SUBMISSION TO
THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF
THE HONOURABLE SUPREME COURT OF SCINDIA
-TABLE OF CONTENTS-
III.IV.PURPOSE OF PUBLICATION
IV. THE DISCLOSURE OF THE IDENTITY OF 22-24
MS. SYLVIA BY SEARCH ENGINES IS NOT A
VIOLATION OF THE SAFEGUARDS
PROVIDED BY LAW.
-LIST OF ABBREVIATIONS-
1. & And
2. § Section
3. ¶ Paragraph
7. Ed. Edition
8. Hon’ble Honorable
The Information Technology
(Intermediaries guidelines) rules 2011.
7. IT Act
15. v. Versus
-INDEX OF AUTHORITIES-
-TABLE OF CASES-
1. R. Rajagopal v. State of T.N (1994) 6 SCC 632
4. Chahagan Chandrakant Bhujbal v. Union of India, 2016 SCC OnLine Bom 938
11. United States v. Cordoba-Hincapie, 825 F. Supp. 485, 495 (E.D.N.Y. 1993).
-STATUTES REFERRED-
-BOOKS REFERRED-
1. CONSTITUTIONAL LAW OF INDIA- DR. J.N. PANDEY
2. RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE, (32nd Ed. 2011).
3. INFORMATION TECHNOLOGY ACT, 2000- UNIVERSAL CONCISE
COMMENTARY
4. PRIVACY AS A CONSTITUTIONAL RIGHT: SEX, DRUGS, AND THE RIGHT TO
LIFE BY DARIEN A. MCWHIRTER; JON D. BIBLE
5. RIGHT TO PRIVACY UNDER INDIAN LAW- KIRAN DESHTA
-STATUTES REFERRED-
-STATEMENT OF JURISDICTION-
Petitioner 1 and Petitioner 2 approaches this Hon’ble Supreme Court by filing a Petition
under Article 32 of the Constitution of Scindia.
The provision under which the Petitioner has approached the Hon’ble Court is read herein
under as:
Further, the Petition filed in the High Court of Dehri has been transferred to the Supreme
Court under Article 139A of the Constitution of Scindia.
The provision under which the Petitioner has approached the Hon’ble Court is read herein
under as:
-STATEMENT OF FACTS-
̴I̴
Funbook is a popular social networking website based in France with one of its branch
offices in Dehri, capital of the Republic of Scindia. Mr.Vaibhav Dixit, a resident of Dehri
is a well-known business tycoon. He is the owner of Meliance Industries and Company, a
telecom operating company based in the Republic of Scindia. He is suspected to be
involved in an offence relating to tax evasion in Scindia and laundering money in France.
In the year 2007, Mr. Vaibhav Dixit made his account on Funbook and in 2008, he
installed the mobile version of Funbook in his smartphone. When he installed this
application, it asked for several permissions like permission to access the gallery of the
smartphone without which it could not be opened. Mr. Dixit granted permission for the
same. Ms. Sylvia, a resident of France and an ex-employee of Mr. Vaibhav Dixit’s
company was a frequent user of Funbook. Mr. Dixit had kept many screenshots of their
chat in his gallery which included his sensitive personal data.On Nov.7, 2017, Mr.
Vaibhav Dixit made a request to Funbook to delete his account and accordingly his
account was deleted within 7 days, i.e., November 14, 2017.
̴ II ̴
The investigative agencies of the Republic of Scindia kept a vigilant eye on Mr. Dixit in
connection with his involvement in tax evasion and money laundering case. They
approached Funbook in this regard. On November 16, 2017, Funbook shared the personal
data of Mr. Dixit with the investigative agencies of the Republic of Scindia including
screenshots of the chat between Mr. Dixit and Ms. Sylvia which was stored in the gallery
of the smartphone of Mr. Dixit. Mr. Dixit infuriated by this act of Funbook approached
the Supreme Court of Scindia on December 5, 2017, contending that his Fundamental
Right to Privacy has been violated by Funbook.. Further, a challenge been made by Mr.
Dixit to the constitutional validity of The Information Technology (Intermediary
Guidelines) Rules, 2011 under which powers are vested with the Central government of
the Republic of Scindia to seek data from intermediaries.
̴ III ̴
Ms. Sylvia paid a visit to the Republic of Scindia . Mr. Dixit called Sylvia asking her to
meet him. Both of them had certain drinks and they got intimate with each other. The
very next morning, i.e. on January 1, 2018, Ms. Sylvia approached police station to lodge
an FIR against Mr. Dixit for committing the offence of rape. The Trial Court found Mr.
Dixit guilty of the offence of rape and convicted. All the leading newspapers in the
country including “The People” published this matter. Mr. Vaibhav Dixit appealed to the
High Court of Dehri and the High Court acquitted Mr. Dixit of all the charges. Mr. Dixit
found that the matter relating to the findings of the Trial Court which was published by
the “The People” around May 2018 was available on the e-newspaper portal of it which
could easily be accessed by anyone. Mr. Vaibhav Dixit approached the High Court of
Dehri.
̴ IV̴
Ms. Sylvia saw that as soon as she typed her name on the search engine, many web links
relating to her case instituted against Mr. Dixit popped up on her laptop screen. Not only
this, any man of ordinary prudence could easily identify her from the webpages. Ms.
Sylvia approached the Hon’ble Supreme Court of Scindia contending that disclosure of
her identity by the search engines is a clear cut violation of the safeguards provided to her
by the laws of the Republic of Scindia.
-STATEMENT OF ISSUES-
ISSUE I:
ISSUE III:
ISSUE IV:
-SUMMARY OF ARGUMENTS-
● It is humbly submitted before this Hon’ble Court that the Right to privacy enshrined
under the Constitution of Scindia is not an absolute right that is intrusions and exceptions
to this rule can be applied. Further it is contended that Funbook was under a legal
obligation to share the sensitive data as it was for the welfare of the investigation which
was being conducted by the investigative authority.
● It is humbly submitted before this Hon’ble Supreme Court of Scindia that the Funbook
had right to store such data of the petitioner for which he had granted permission for thus
the right to privacy of petitioner was not a violation. It is further contended that tax
evasion and money laundering are considered as a socio-economic offence which is quite
a menace and the accused shall be punished for it so it was beneficial on the part of
Funbook to share the sensitive data of the petitioner so that no interruption would occur
during the course of investigation.
● It is humbly submitted before this Hon’ble Court that the intermediary guidelines of
information technology shall be declared valid as there was urgent need of the rule to
protect personal data of the citizens of the society.
● It is humbly submitted before this Hon’ble Court that the Section 3 of IT (intermediaries
guidelines) rules, 2011 restricts the intermediary to host or publish any information shall
not initiate the transmission hence it does not amount any violation of privacy.
● It is humbly submitted before this Hon’ble Court that the section 3 & 4 of money
laundering Act defines offence of money laundering and its punishment which clearly
state that it is a grave offence in which investigative authority can access the data of any
person who is suspected for such offences.
● It is humbly submitted before this Hon’ble Court that the media derives its rights from
the right to freedom of Speech and expression available to the citizen.Press can only
enable a young democracy like India to survive, and also help its development of
social justice and to serve the interests of the common people.
● It is humbly submitted before this Hon’ble Court that the main purpose of the
publication is for the welfare of public interest at large thus, publication of news
makes the public aware of whatsoever is going on all around the world and it cannot
be hinged away.
● It is humbly submitted before this Hon’ble Court that the search engines are
committed to diverse perspective. Search engines uses web crawlers to organize
information from webpages and other publicly available content in the Search index.
-ARGUMENTS ADVANCED-
4Francis Coralie Mullin v. The Administrator, Union territory of Delhi and others AIR 1981 SC 746
5 https://www.facebook.com/full_data_use_policy
16. It is humbly submitted before the Hon’ble Court of Scindia that non erasure of data
was not the violation of right to privacy and it was essential to share the sensitive
personal data of Mr. Dixit with the investigative authorities as offences like money
laundering and tax evasion are considered as socio- economic offences for which the
criminal shall be punished.
17. Money laundering could be understood as to entails activities aimed at the legalization
of money gained from criminal activities. Participants in money laundering use a wide
range of different transactions to cover the real origin of money and make it a legal
means of transactions on the money market, which ultimately enables them to use it in
regular business relations where they invest their capital”
18. According to the definition provided by the Bank of England, money laundering is the
process by which criminals attempt to conceal the true origin and ownership of the
proceeds of their criminal activities. If done successfully, it allows them to maintain
control over those proceeds and ultimately provides a legitimate cover for their source
of income6
19. The Code of Criminal Procedure governs the procedural aspects of prosecution, there
are marked deviations from the standard procedure considering the special nature of
the offence (including its cross border character) and slightly different process is
envisaged. The offence is cognizable which means arrest can be made without a
warrant.7 there is a specialised investigative body for investigation of these offences.
Authority is empowered to carry out interim measures such as survey, search, seizure
and arrest of the accused. Similarly, if an asset is found to be the proceeds of crime,
the same can be confiscated and appropriated by the Government.
20. Section 17 gives wide powers of search and seizure to the investigating agency. If the
investigating agency has reason to believe (and such belief should be recorded in
writing) the commission of offence under the PMLA and possession of proceeds of
crime, it can enter and seize property/records etc, make an inventory of the same. The
seizure memo is required to be signed by two independent witnesses. If the
6 http://www.bankofengland. co.uk/archive/documents/historicpubs/qb/1992/qb92q4418426.pdf
7 Chahagan Chandrakant Bhujbal v. Union of India, 2016 SCC OnLine Bom 938
investigating authority has a reason to believe that a person has secreted about his
possession, ownership or control, proceeds of crime, in that case the person can be
searched. Before the search of a person, as per his wish, the authority shall take the
said person before a Gazetted officer superior in rank to the authority or a Magistrate
within 24 hours excluding the time of journey. This is the safeguard laid down in S.
18(4) of the PMLA, however, strangely there is no corresponding obligation on the
investigating agency to inform the person about to be searched of this valuable right.
Something akin to a Miranda warning will be apposite here.
21. Thus, the investigative authority was performing its duties under Prevention of Money
laundering Act, 2002 and it was not violative of Mr. Dixit’s Right to privacy.
31. The same was said by supreme court in Gobind vs State of MP8 –the first privacy
judgment of the Supreme Court – the Court laid down a more rigorous variant of this
test. In this case, the Court held that privacy violations could be justified only if there
was a “compelling State interest” at stake, and if the law was narrowly tailored – that
is, the State could have to show that there was no other, less privacy-infringing way,
through which it could achieve its goals. The dictum in this case was followed in the
phone-tapping case – PUCL vs Union of India9 – where the Court upheld the
constitutionality of phone tapping only by passing guidelines that restricted its scope
to narrow and targeted surveillance.
32. As Mr. Dixit is The investigative agencies of the Republic of Scindia kept a vigilant
eye on Mr. Dixit in connection with his involvement in tax evasion and money
laundering case. They approached Funbook in this regard.
33. Tax evasion and money laundering is a grave offence of public interest hence, state
has the authority to collect the data regarding the investigation of these offences as the
investigative authority collect the data of Mr. Dixit.
34. Section 3 of Money laundering act defines –
“Offence of money-Laundering.-Whosoever directly or indirectly attempts to indulge or
knowingly assists or knowingly is a party or is actually involved in any process or
activity connected proceeds of crime including its concealment, possession,
acquisition or use and projecting or claiming it as untainted property shall be guilty
of offence of money-laundering”.
35. Section 4 of money Laundering act defines –
“Punishment for money-Laundering.-Whoever commits the offence of money-laundering
shall be punishable with rigorous imprisonment for a term which shall not be less than
three years but which may extend to seven years and shall also be liable to fine:
Provided that where the proceeds of crime involved in money-laundering relates to
any offence specified under paragraph 2 of Part A of the Schedule, the provisions of
this section shall have effect as if for the words "which may extend to seven years",
the words "which may extend to ten years" had been substituted.”
36. In Govind Singh v. State of Madhya Pradesh10 it was observed that “the fundamental
rights explicitly guaranteed to a citizen have penumbral zones and that the right to
privacy is itself a fundamental right, that fundamental right must be subject to
restriction on the basis of compelling public interest."
37. In Mr. 'X' vs Hospital 'Z'11 it was stated by hon’ble Supreme Court
“The Right of Privacy is an essential component of right to life envisaged by Article 21, The
'right, however, is not absolute and may be lawfully restricted for the prevention of
crime, disorder or protection of health or morals or protection of rights and freedom
of others.
II.II. CENTRAL GOVERNMENT HAS THE AUTHORITY TO INTERCEPT IN
INFORMATION
38. section 69 of information technology act 2000, clearly states that central government
may at any time intercept the data if there is necessary conditions:
“Power to issue directions for interception or monitoring or decryption of any information
through any computer resource.–(1) Where the Central Government or a State
Government or any of its officers specially authorised by the Central Government or
the State Government, as the case may be, in this behalf may, if satisfied that it is
necessary or expedient so to do, in the interest of the sovereignty or integrity of India,
defence of India, security of the State, friendly relations with foreign States or public
order or for preventing incitement to the commission of any cognizable offence
relating to above or for investigation of any offence, it may subject to the provisions
of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of
the appropriate Government to intercept, monitor or decrypt or cause to be intercepted
or monitored or decrypted any information generated, transmitted, received or stored
in any computer resource.
(2) The procedure and safeguards subject to which such interception or monitoring or
decryption may be carried out, shall be such as may be prescribed.
(3) The subscriber or intermediary or any person in-charge of the computer resource shall,
when called upon by any agency referred to in sub-section (1), extend all facilities and
technical assistance to– (a) provide access to or secure access to the computer
resource generating, transmitting, receiving or storing such information; or (b)
intercept, monitor, or decrypt the information, as the case may be; or (c) provide
information stored in computer resource”.
II.III. SECURE ELECTRONIC RECORDS AND SECURE
39. Justice Nariman’s opinion provided the clearest exposition, he held that: “… when it
comes to restrictions on this right, the drill of various Articles to which the right
relates must be scrupulously followed. For example, if the restraint on privacy is over
fundamental personal choices that an individual is to make, State action can be
restrained under Article 21 read with Article 14 if it is arbitrary and unreasonable; and
under Article 21 read with Article 19(1) (a) only if it relates to the subjects mentioned
in Article 19(2) and the tests laid down by this Court for such legislation or
subordinate legislation to pass muster under the said Article. Each of the tests evolved
by this Court, qua legislation or executive action, under Article 21 read with Article
14; or Article 21 read with Article 19(1)(a) in the aforesaid examples must be met in
order that State action pass muster.”12
III. THE AVAILABILITY OF THE NEWS IN THE PUBLIC DOMAIN IN DIGITAL
FORM RELATING TO THE ALLEGED RAPE IS NOT A VIOLATION OF
FUNDAMENTAL RIGHTS.
It is humbly submitted before this Hon’ble Court the availability of the news in the public
domain in digital form relating to the alleged rape is not a violation of fundamental rights.
12 https://www.livelaw.in/supreme-courts-right-to-privacy-judgment-vi-limitations/
13 Alexander v. N.E. Rly; (1865) 6 B&S 340
14 Moot proposition of 7th mahamana National moot Court Competition.
It is humbly submitted before this Hon’ble Court the disclosure of the identity of Ms. Sylvia
by search engines is not a violation of the safeguards provided by law.
15 Moot proposition Para 12 & 14 of the 7th Mahamana National Moot Court Competition.
billions of webpages in the Search index to give the user the useful and relevant
results in a fraction of a second. Understanding the meaning of the search is crucial to
returning good answers. So to find pages with relevant information, our first step is to
analyze what the keywords in your search query mean. They build language models to
try to decipher what strings of words we should look up in the index.
49. These ranking systems are made up of a series of algorithms that analyze what the
users are looking for and what information to return to the user. They analyze how
often and where those keywords appear on a page, whether in titles or headings or in
the body of the text.These algorithms analyze hundreds of different factors to try to
surface the best information the web can offer, from the freshness of the content, to
the number of times your search terms appear and whether the page has a good user
experience.
IV.II.ABSENCE OF MALAFIDE INTENTION
50. It is contended -before this Hon’ble Court that accused had no intention to commit
any such act to harm national security. They in fact acted in pursuance of the laws
applicable on them. Their intention was to provide relevant information , so as to
protect the information of national importance. Since the search engines uses a robust
framework to surface the best information the web can offer. It is not possible for a
person or group of persons to manipulate the search results. The search results are
not controlled manually. It is based completely on the algorithm. In order to assess
trustworthiness and authority on its subject matter, they look for sites that many users
seem to value for similar queries. If other prominent websites on the subject link to
the page, that’s a good sign the information is high quality. Thus, the existence of a
malafide intention is not possible . “Only a human being under legal obligation and
capable of being punished can be proper subject of criminal law.”
51. The damage caused to the database and website were unforeseeable. The accused took
reasonable care by testing the virus in their own system. In the case of Bholu Ram v.
State of Punjab,16 Hon’ble Court held that even if there is negligence on the part of
the accused but he had no criminal intention he cannot be held guilty.
17 Eugene I. Chesney, ‘Concept of Mens Rea in the Criminal Law’. Vol.29 Issue 5, Journal of Criminal Law and
Criminology.
18 Brend v. Wool, (1946) 62 T.L.R. 462-463: Harding v. Prince, (1948) All E.R 283.
19 United States v. Cordoba-Hincapie, 825 F. Supp. 485, 495 (E.D.N.Y. 1993).
Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is
Most humbly and respectfully prayed before this Hon’ble Court to adjudge and declare:
TO HOLD
TO DIRECT
MISCELLANEOUS
AND ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE PLEASED TO
GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE
Sd/-
………………………………
COUNSELS FOR THE RESPONDANT