1

BEFORE THE HONOURABLE SUPMERE COURT OF INDIANA

WRIT PETITION

ARTICLE 139A

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

VERSUS

UNION OF INDIA & ORS ……………Respondent

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TABLE OF CONTENTS

List of Abbreviations.................................................................................................................4
Index of Authorities..................................................................................................................5
Statement of Jurisdiction...........................................................................................................9
Statement of Facts...................................................................................................................10
Issues Involved.......................................................................................................................12
Summary of Arguments...........................................................................................................13
Arguments Advanced..............................................................................................................
 3

LIST OF ABBREVIATIONS

AIR All India Reporter

Art. Article

Bom. Bombay

Co. Company

Ch. Chapter

DC District Court

Ed. Edition

HC High Court

Hon’ble Honourable

Ltd. Limited

SC Supreme Court

SCC Supreme Court Cases

UOI Union of India

Vol. Volume

Vs. Versus
 4

INDEX OF AUTHORITIES

BOOKS

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

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

LEGAL DATABASE

1. SSC ONLINE

2. WESTLAW

CASES

Netai Baig v. State of W.B., (2000) 8 S.C.C

Naraindas v. State of Madhya Pradesh A.I.R. 1974 S.C. 1232.

Kathi Raning v. State of Saurashtra, 1952 S.C.R. 435.

B.B. Rajvanshi v. State of U.P, A.I.R. 1988 S.C. 1089

E.P. Royappa v. State of Tamil Nadu AIR 1974 SC 555

Chintamani Rao v. State of M.P. AIR 1951 SC 118.

Confederation of Ex-serviceman Association v. Union of India, (2006) 8 S.C.C. 399.

R.C. Cooper v. Union of India, (1970) 1 S.C.C. 248.

Union of India v. Motion Pictures Association, A.I.R. 1999 S.C. 2334.

Queen v. Hicklin, (1868)L.R.3Q.B.360.

Ranjit D. Udeshiv. State of Maharashtra, AIR 1965 SC 881.

Chandra Kant Kalyandas Kakodkar, (1969) 2 SCC 687.

 5

STATEMENT OF JURISDICTION

The Petitioners have approached the Hon‘ble Supreme Court of by way of writ petition under
Article 139A of the constitution of Indiana.
 6

STATEMENT OF FACTS

1. Indiana is a developing countryconsidered as one of the emerging powers in the information

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

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

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

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

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

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

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

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

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

f. Grant access to phonebook and location information.

g. Enable reading of/sync statuses; receive and share data from the internet.
 7

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

4. In 2008, the company collaborated itself with another company, known as ‗Features‘ (owned
by Features Co. Ltd.) owned by Harry and Parry. ‗Features‘ was another online social
media platform and social networking service, operative globally, and used by numerous
people.
‗Features‘ allowed its users to share information like pictures, videos, phone numbers and other
personal information. It enable them to provide relevant advertisements while also
providing access to other search engines to find the relevant sources on ‗Features‘ and make a
complete profile of the users. The history of such data, however, could still be collected even if
the user uninstalled the app. Consent of users was obtained by ‗opt-in basis‘ ‗Features‘
had paid
‗Commu-app‘ a hefty amount of USD 10 Million for letting them use the personal information,
which was not to be disclosed in public.

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

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

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

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

8. The Central Government issued an order banning both, the Commu app and features
app. Consequently, the Investigating Officer entered the headquarters of features and seized all
the computers, papers and hard disks. Additionally, edited pictures of various women were
found hanging on clipboards along with several letters lying on the floor. These letters were
written by angry mothers requesting them for removing such obscene and salacious content
which was spoiling their children and making them indecently interested in sexual matters at a
very young
 8

age. Apart from all this, another torn letter was found in bits and pieces written by Harry to his
ex-girlfriend Karry, statingthat he wanted to change the societal perspective of womanhood and
expand boundaries of socio-legal sentience taking into consideration the strata of morality and
ethics prevalent in the society.

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

10. Harry and Parry along with Zinc Enterprises Ltd. Requested to move to the Hon‘ble Supreme
Court under Article 139A to transfer all the cases to itself. The intermediaries already had filed a
similar petition for the same.
 9

ISSUES INVOLVED

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

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

II

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

III

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

information has been used in order to convict the Accused.
 10

SUMMARY OF ARGUMENTS

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

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

It is humbly submitted before the Hon‘able Supreme Court that sections 67A, 69A and 69B of
Information Technology Act, 2000 are unconstitutional because they are vague, arbitrary
and unreasonable and gives unfettered power to the Executive. They violate Article 14, 19 and 21
of the constitution of Indiana. The provisions of IPC (section 340) and Indecent Representation of
Women (Prohibition) Act, 1986 (Section 3 and 4) are not applicable as they do not
apply to electronic media platform like social media and there is no confinement.

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

The right to privacy of Harry and the users of the Commu app has been infringed by the search
and seizure conducted by Police authorities. The petitioners cannot be held liable for the
infrinegement of right to privacy as prima facie there was an agreement between Commu app
and its users which has been described as a ‗Click Wrap agreement‘ which binds the users to the
privacy policy of the app. Further, to hold the Police authorities liable, it has been found that the
Police has certain authority granted to it by the Code of Criminal Procedure to investigate and
disclosure the information but these provisions come with certain exceptions such as the private
information of the individuals can‘t be disclosed as it will hamper there right to privacy.
Therefore the Police authorities should be held liable for infringing the right to privacy of Harry
and several other users.

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

information has been used in order to convict the Accused
 11

ARGUMENTS ADVANCED

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

Technology Act, 2000 (as amended) and applicability of allied provisions
of IPC ( Section 340 ) & Indecent Representation of Women (Prohibition) Act,
1986 ( Section 3 and 4).
It is humbly submitted before the Hon‘able Supreme Court that sections 67A, 69A and 69B of
Information Technology Act, 2000 are unconstitutional because they are violative of Article 14,
19 and 21 of the constitution of Indiana.The provisions of IPC (section 340) and
Indecent Representation of Women (Prohibition) Act, 1986 (Section 3 and 4) are not applicable
as they do not apply to electronic media platform like social media and there is no confinement.

1.1 THAT THE SECTIONS 67 A, 69 A AND 69 B OF THE

INFORMATION TECHNOLOGY ACT, 2000ARBITRARY, VAGUE AND
UNREASONABLE

Every action of the government must be in conformity with reasons and should be free
from arbitrariness.1 In the case of Naraindas v. State of Madhya Pradesh2, it was observed that
―If the power conferred by the statute on any authority of the State if vagrant and
unconstitutional and

1
Netai Baig v. State of W.B., (2000) 8 S.C.C
2
A.I.R. 1974 S.C. 1232.
 12

no standards or principles are laid down by the statute to guide and control the exercise of such
power, the statute would be violative of equality clause.‖

The section contains vague terms like ―sexually explicit act‖ or ―conduct‖ which is nowhere
defined in the act. Where the standard of guide furnished by the statute is vague and uncertain it
amounts to the absence of any guide at all and the law must be struck down as conferring
unguided power upon the Executive3.

Government or its official should not be given arbitrary power. ―If the power conferred by the
statute on any authority of the State if vagrant and unconstitutional and no standards or principles
are laid down by the statute to guide and control the exercise of such power, the statute would be
violative of equality clause.‖4 Where the statutory provision is plainly in violation of Article 14,
having conferred unguided and unfettered power on the Executive, the Court cannot uphold its
constitutionality by reading into it the validating requirements which is lacking.5

In E.P. Royappa v. State of Tamil Nadu6 it was observed that ―Equality is a dynamic concept
with many aspects and dimensions and it cannot be cribbed, cabined and confined within
traditional and doctrinaire limits. From a positivistic point of view, equality is antithesis to
arbitrariness. In fact, equality and arbitrariness are sworn enemies: one belong to the rule of law
in a republic while the other, to the whim and caprice of an absolute march. Where an act is
arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional
law is therefore violative of article 14.‖

1.2 THAT THE SECTIONS 67 A, 69 A AND 69 B OF THE INFORMATION

TECHNOLOGY ACT, 2000 ARE VIOLATIVE OF ARTICLE 19

The sections are wide and vague and incapable of being judged on objective standards, that it is
susceptible to wanton abuse and hence falls foul of Article 19(1) (a). The restrictions imposed
under any clause of article 19 must be reasonable restriction. The restriction cannot be
arbitraryThe phrase reasonable restriction means that the restriction imposed on a person in the
enjoyment of his right should not be arbitrary or of an excessive nature, beyond what is required
in the interests of the public. A law which arbitrarily or excessively invades the right of a person
cannot be said to contain the quality of reasonableness and unless it strikes a proper balance
between the right guaranteed in article 19(1) and the social control in Article 19(6), it must be
held to be wanting in that quality. ―Legislation which arbitrarily or excessively invades the
right
cannot be said to contain the quality of reasonableness and unless it strikes a proper balance

3
Kathi Raning v. State of Saurashtra, 1952 S.C.R. 435.
4
Naraindas v. State of Madhya Pradesh, A.I.R. 1974 S.C. 1232.
5
B.B. Rajvanshi v. State of U.P, A.I.R. 1988 S.C. 1089
6
AIR 1974 SC 555
 13

between the freedom guaranteed in Article 19 and the special control permitted by clause (6) of
Article 19 it must be wanting in the quality.‖7

Section 69A and the rules under Section 69A are wide in ambit and unconstitutional since they
only allow the intermediary / person in charge of the computer resource on which the content is
hosted to be heard prior to the decision, and do not provide the person who is the originator of
the concerned content an opportunity to be heard. While neither Section 69A nor the rules clearly
articulate whether or not the orders and / or the reason for the orders as recorded must be
published or made available to the owner / originator of the blocked content, one may assume
based on the Supreme Court‘s observations that such information must be made available in a
manner that allows the order to be appealed.

1.3 THAT THE SECTIONS 67 A, 69 A AND 69 B OF THE INFORMATION

TECHNOLOGY ACT, 2000 ARE VIOLATIVE OF ARTICLE 21

A person is entitled to enjoy his personal rights and to be protected from encroachments on such
personal rights, freedoms liberties. The Right to Life guaranteed under Article 21 embraces
within its sweep not only physical existence but the quality of life also. Any statutory provision
running counter to such a right must be held unconstitutional.8 The right to personal liberty
under Article 21 must be read with Article 19 and Article 14, with a view to strengthen the right
of personal liberty and to overcome the weakness of guarantee of procedure established by law.9

Section 69A does not provide any effective remedies of redressal for the legal entities/members
of the public whose information, generated, transmitted, received, stored or hosted on any
computer resource, is blocked for access under Section 69A nor any provisions for unblocking
them. The process of blocking is entirely secret, and fails to meet constitutional safeguards of
natural justice. The lack of transparency is a significant concern under Section 69A. The
implementation of the blocks involves a host of procedural improprieties, the lack of specific
notice (of the blocking, with reasons) to the actual authors of the offendingcontent, and of a right
to reply is especially problematic. Even if, the measure isostensibly an emergency response, the
notice, and opportunity for a hearing should at least be accorded ex post. There is a real lack of
accountability and of a right to remedies in the process. Also, in the case at hand the block on the
website covers content far in excess of the content inciting violence or hatred or disruptingpublic
order. The Government Order dated July 28, 2210 does not appear to specify the duration for
which the blocking will extend, leaving open the theoretical possibility of an indefinite blocking
of the access to the website. This action of the government is a clear indication of the
government‘s intention of making the channels of communication and information inaccessible
to the public.

7
Chintamani Rao v. State of M.P. AIR 1951 SC 118
8
Confederation of Ex-serviceman Association v. Union of India, (2006) 8 S.C.C. 399.
9
R.C. Cooper v. Union of India, (1970) 1 S.C.C. 248.
 14

Even apart from Article 19, the requirement of fairness is inherent in Article 21 which is akin to
the concept of reasonableness.10

1.4 THAT THEALLIED PROVISIONS OF IPC ( SECTION 340 ) & INDECENT

REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986 ( SECTION 3 AND 4)
ARE NOT APPLICABLE.

The Conjunction of free press, growing mass media and a section population that attempts to
preserve values which they consider to be ―Indian‖ with the legal system produces challenges
of new kinds that pose questions on the limits of freedom to express and the mooted need to
protect the society from objectionable content. Marked by a severe lack of (and nearly
impossible) consensus on what can be called as obscene, and left with a colonial penal code that
carries a century old Test for obscenity, the courts have struggled to expand the freedoms of
speech and balance it with the need to contain the spread of certain category of materials. The
debate on
what is obscene assumes contemporary significance in the light of demands from some quarters
to remove or block all materials that are obscene from the internet, particularly the social
networking websites and the often repeated demands to regulate the cable television and
broadcasting media.

The Delhi High Court recently ordered the major social networking websites to ―remove all
obscene content‖11 The Court summoned the executives of the websites and threatened a China
like blockade of the websites if such content is not removed.

The Cable television Networks Rules, 1994 prohibits the showing of anything that is obscene or
that which makes an indecent representation of women. Stipulations are made in the case of
advertisements also, by Rule 7. However, the Rules do not lay down what amounts to obscenity.
This then takes us back to the Penal Code‟s definition of obscenity. Similarly, the Direct To
Home18 Guidelines (DTH)also mandate the operator to ensure that his facilities is not being
used to run any obscene content.

The Rules framed by the Central Government under the under Section 69A of the Information
Technology Act empowers the government to direct the removal of content from internet.
TheRules envisages a designated officer (who shall be an officer of the Central Government not
below the rank of a joint secretary)12 to entertain a request for blocking only from Government
Agencies or from the Court, as a result of a judgment.13

10
Union of India v. Motion Pictures Association, A.I.R. 1999 S.C. 2334.
11
” http://www.firstpost.com/india/we-can-block-websites-like-china-if-steps-nottaken-delhi-hc-180346html
[accessed on: 6 August 2018]
12
Rule 4 of The Information Technology (Procedure and Safeguards for Blocking for Access of Information by
Public) Rules
13
Rule 6 of ibid.
 15

In Queen v. Hicklin14 (the ―Hicklin Test‖) to determine what was obscene. The test asks
―whether the tendency of the matter charged as obscenity is to deprave and corrupt those
whose minds are open to such immoral influences‖.

The Supreme Court in Ranjit D. Udeshiv. State of Maharashtra15, 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 it is obscenity in
treating sex in a manner appealing to the carnal desire of human nature of having that tendency.

It was held in Chandra Kant Kalyandas Kakodkar16 case that in considering the question of
obscenity of a publication what the court has to see is whether a class, and not an isolated case
into whose hands the book, article or story falls, suffers in its moral outlook or becomes
depraved by reading it or might have impure and lecherous thoughts aroused in their minds.

Section 3 states of the prohibition cause, or arrange or take part in the publication of any
advertisement which contains indecent representation of women in any form. There is no
advertisement of indecent representation of women by the features app. Private photographs and
video clippings were leaked and not advertised by the app. Also section 3 and 4 of the indecent
representation of women (prohibition) act do not mention prohibition of advertisement and
publication on electronic media.

Section 340 of IPC stats that that whoever wrongfully restrains any person in such a manner as to
prevent that person from proceeding beyond certain circumscribing limits, is said wrongfully to
confine that person. In other words, there must be a wrongful restraint by a person put in such a
manner that the victim is prevented from proceeding beyond certain circumscribing limits. There
must be a total curtailment of liberty of movement, and if an escape route is open it cannot be a
case of wrongful confinement.

14
(1868)L.R.3Q.B.360.
15
AIR 1965 SC 881.
16
(1969) 2 SCC 687: AIR 1970 SC 1390.
 16

ISSUE 2:

WHETHER THERE WAS ANY UNDUE INFRINGEMNET OF RIGHT TO PRIVACY

BY THE SEARCH OF PRIVATE DOCUMENTS AND LETTERS WHICH WERE NOT
MEANT FOR PUBLIC DISCLOSURE.

The leading judgement of K.S Puuttaswamy v. Union of India17 has penned down that, that
Privacy represents the core of the human personality and recognises the ability of each individual
to make choices, and to take decisions governing matters intimate and personal.

1. There was a contract between the Commu App and general public.
1.1 In the rapidly growing economy, everyday there‘s a new invention and e-contracts are the
outcome of such advancement. In light of the term ‗E-Contract‘ or Electronic Contract, it
is pertinent to mention that the electronic contracts are governed by basic principles
provided in the Indian Contract Act, 1872. Section 4 of the IT Act gives legal recognition
to electronic records. Section 10-A of IT Act provides recognition to e-contracts.18
1.2 Commu – app which is a private messaging application developed by Zinc Enterprises
Ltd. in the year 2006 requires its users to abide by certain terms and conditions
by a
‗Click-Wrap Agreement‘19 before it‘s installation. It is pertinent to mention that for the
proper functioning of the Commu App, the users had to come across certain terms and
conditions before installing it, below which an install button was provided in order
to proceed with the installation after which the user wishing to proceed would
have to accept the above mentioned terms and conditions. After installing the
application by clicking on ‗I agree‘ there comes into existence an agreement between the
Commu App and it‘s users. Therefore, it wouldn‘t be incorrect to mention that the users
of Commu app were bound by the agreement.
1.3 Validity of click wrap agreements in India is still questionable however, S.K. Verma in its
article on ―IP Protection and Software contracts in India‖20 has mentioned that, the
legality and enforceability of Click wrap agreements have not been tested by the Indian
courts so far however no software license has been invalidated so far on the grounds of
not being in writing or signed. The copyright (Amendment) Bill, 2010 seeks to do away
with the requirement of signature for the purpose of constituting a valid license.The ―I
agree" or "Ok" button constitutes agreement to the click-wrap licence agreemnt.21

1.4 In A.V, a minor, by his next friend Robert Vanderhye&ors. V. I Paradigms, LLC 22, the
court found that the students and iParadigms entered into binding agreements when the
students clicked on "I Agree," and that the agreements shielded iParadigms from liability

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

18
Spicejet Ltd. vs Sanyam Aggarwal 2017.
19
Click Wrap agreement’ which can be defined as web based agreements that requires assent of the party by way
of clicking the “I agree” or “I accept” button e.g. E-bay user agreement, Citibank terms and conditions, etc.
20
IP Protection and Software contracts in India, 2015.
21
Ibid at 17.
22
Robert Vanderhye&ors. V. I Paradigms, LLC, 16 April, 2009.
 17

arising out of plaintiffs use of the Turnitin website. Furthermore, the court concluded that
the disclaimers included on plaintiffs written submissions did not modify the Agreement
or render it unenforceable." Similarly in the present case the users of Commu App
consented to its terms and conditions by entering into a ‗Click Wrap agreement‘
and therefore can‘t claim for breach of right to privacy by the Commu app or other
associated Social networks.

2. There was undue infringement of right to privacy by the Police authorities.

2.1 The Apex court in its landmark judgement of Justice K.S. Puttaswamy V. UOI & Ors23
has defined privacy and its related aspects in the widest term possible. The
judgment states that;
―Privacy ensures that a human being can lead a life of dignity by securing
the
inner recesses of the human personality from unwanted intrusion.
Privacy includes at its core preservation of personal intimacies, the sancity of
family life, marriage, procreation ,the home and sexual orientation.
Personal choices governing a way of life are intrinsic to privacy. Privacy protects
heterogeneity and recognizes the plurality and diversity of our culture.
While the legitimate expectation of privacy may vary from the intimate zone to
the private zone and from the private to the public arenas, it is important to
underscore that Privacy is not lost or surrendered merely because the individual is
in a public place. Privacy attaches to the person since it is an essential facet
of the dignity of the human being.‖
2.2 The nine judge bench has further described privacy to be the core of the human personality
and recognized it to be the ability of each individual to make choices, and to take decisions
governing matters intimate and personal. Undoubtedly in the present case, the actions
of Plaintiff Harry in writing a letter to his ex-girlfriend Karry stating that he wanted to change
the social prespective of womehood and also expand the boundaries of socio-legal sentience
is completely justified as every citizen has rights to take decisions governing matters intimate
and personal.
2.3 This court in R. Rajagopal24 held as follows:

―The right to privacy is implicit in the right to life and personal liberty guranteed to the
citizens of this country by article 21. "It is a right to be let alone" A citizen has a right to
safeguard the privacy of his own, his family, marriage, procreation, motherhood, child
bearing and education among other matters.‖

2.4 Justice D.Y. Chandrachud and his companion judges in the landmark judgment on Privacy
have pondered upon the two aspects of it, i.e., positive and negative content. The negative
content restrains the state from committing an intrusion upon the life and personal liberty of a
citizen. Its positive content imposes an obligation on the state to take all necessary measures
to protect the privacy of the individual.25 Likewise in the present case it was not just the
obligation of the state but also a restriction from committing an intrusion upon the personal
23
K.S. Puttaswamy V. UOI & Ors, 2017, 10 SCC.
24
R.Rjagopal v. State of T.N., (1994) 6 SCC 632.
25
Ibid at 23.
 18

life of harry by annexing his private letters written to his ex- girlfriend with Charge sheet
which by law has been regarded to be a public document26 and which can be assessed by
general public under the provisions of The Evidence Act, 1872.27
2.5 In respect to disclosure of all necessary information by the police authorities in the public
documents, Section 8 (1) (j) of The Right to Information Act, 2005 has a diverse perspective
it states that;

― Information which relates to personal information the disclosure of which has no

relationship to any public activity or interest, or which would cause unwarranted invasion
of the privacy of the individual unless the Central Public Information Officer or the State
Public Information Officer or the appellate authority, as the case may be, is satisfied that
the larger public interest justifies the disclosure of such information: Provided that the
information, which cannot be denied to the Parliament or a State Legislature shall not be
denied to any person‖

2.6 The landmark judgement of Puttaswamy has further elucidated the parameters of section 8(1)
(j) In terms of this provision, information which relates to personal information, the
disclosure of which has no relationship to any public activity or interest or which would
cause unwarranted invasion of the privacy of the individual would fall within the exempted
category, unless the authority concerned is satisfied that larger public interest justifies the
disclosure of such information.28 In the instant case, The police authorities didn‘t had
sufficient ground to justify the disclosure of private letters of harry because it was nowhere
related to the case furthermore, converging to the letters and pictures and videos of the
children which were annexed to the charge sheet, the court in its landmark judgement on
privacy has laid down that;

―They should not be subjected to the consequences of their childish mistakes and
naivety, their entire life. Privacy of children will require special protection not just in the
context of the virtual world, but also the real world.‖

2.7 Similarly, names of minors and pictures, including those of juveniles, have to be
safeguarded.29" Children around the world create perpetual digital footprints on social
network websites on a 24/7 basis as they learn their "ABCs‖: Apple, Bluetooth and chat
followed by download, e-mail, facebook, google, hotmail, and instagram. 30 (2015) 28 Harv
JL &Tech 349.According to Article 19 (1) (a) of the constitution, All citizens have the right
to freedom of speech and expression and considering the juvenile nature of children it is the
duty of the state to protect their interest and therefore the disclosure of pictures and videos

26
L.S. Raju v. State of Mysore, AIR 1953 Bom 397.
27
Section 74, Evidence Act, 1872.
28
Ibid at 23.
29
Sonal Makhija, Privacy & Media Law, 19 July, 2011,
30
Michael L. rustad, SannaKulevska, "Reconceptualizing the right to be forgotten to enable transatlantic data flow.”
 19

and letters of children by the police authorities in the case in hand clearly punishes their right
to privacy and also infringes the Protection of life and personal liberty stated under Article
21 of the constitution of India
2.8 Recognizing the fact that the right to privacy is a sacrosanct facet of article 21 of the
constitution of india, the legislation has put a lot of safeguards to protect the rights under
section 8(1)(j), as already indicated. If the information sought for is personal and has no
relationship with any public activity or interest or it will not sub serve larger public interest,
the public authority or officer concerned is not legally obliged to provide those information.31
2.9 The Court recognised ‗informational privacy‘ as an important aspect of the right to privacy
that can be claimed against state and non-state actors. The right to informational privacy
allows an individual to protect information about herself and prevent it from being
disseminated.Further, the Court recognised that the right to privacy is not absolute and may
be subject to reasonable restrictions. In order to limit discretion of State in such matters, the
Court has laid down a test to limit the possibility of the State clamping down on the right -
the action must be sanctioned by law, it must be necessary to fulfil a legitimate aim of the
State, the extent of the State interference must be ‗proportionate to the need for such
interference‘, there must be procedural safeguards to prevent the State from abusing its
power 32
2.10 In a country that adheres to the common law system, it is bewildering to see the Courts
shrugging off landmark judgment of Girish Ramchandra Deshpande V. CIC wherein the
court held that ;

―since there is no bonafide public interest in seeking information, the disclosure

of said information would cause unwarranted invasion of privacy of the individual
under section 8(1)(j). Further if the authority finds that information sought for can
be made available in the larger public interest, then the officer should record his
reasons in writing before providing the information, because the person, from
whom information is sought for, has also a right to privacy guaranteed under
Article 21 of the Constitution.‖

Several judgements have contemplated the conditions as to where the right to privacy of an
individual can be infringed however in Girish Deshpande case33 the apex court evidently
fixated on the disclosure of any such information which would cause unwarranted invasion
of privacy where there is no bonafide public interest as an infringement to Article 21 of the
Constitution and in the present case the disclosure of private letters of Harry had no relation
to public interest and therefore have caused the infringement of right to privacy by the Police
authorities.

31
Ibid at 23.
32
Draft personal Data Protection Bill, 2017.
3
Girish Ramchandra Deshpande v. Central Information Commissioner and Ors.(2013) 1 SCC 21220
 2.11 The scheme of the RTI Act, 2005 contemplates for setting out the practical regime of the
right to information for citizens to secure access to information under the control of Public
authorities, in order to promote transparency and accountability in the working of every
public authority. However, right to information has to be balanced with right to privacy as
enriched under article 21 of the constitution34. In UPSC v. R.K. Jain, the appeal was
dismissed on the ground that the information sought was of personal nature and disclosure
thereof had no relationship to any public activity or interest and may infringe upon the
privacy of the individual concerned. It was further held that the disclosure of such
information was exempt under Section 8(1)(j) of the Right to Information Act.35

2.12 The Commission in Usha Kant Asiwal v. Directorate of Vigilance33, GNCTD

observed that charge-sheet is a public document and can be given.
―As per the RTI Act, any information held by the public authority can be
accessed by the citizen subject to the exceptions provided under Section 8.
Because the charge-sheet contains the evidence which need to be adduced
in the court of law, there is a possibility of opening up many details which
could be personal or private or confidential. If the allegation requires to be
proved by call data, the charge sheet refers to sheets of call data, which
surely contain call details unrelated to allegation. That could be
private information need to be protected. Hence each charge sheet
has to be separately examined and only after separating unnecessary and
unrelated details of evidence, and only required and permissible
information out of
charge-sheet should be disclosed. Thus Charge-sheet can neither be
prohibited enbloc from disclosure nor disclosed totally. Charge sheet is a
document held by concerned authority, which has to examine disc losable
aspects vis-a-vis Section 8 and 9 of the RTI Act and then decide the case.‖
2.13 In a significant ruling that will help curb the misuse of the Right to information Act, the
Bombay High Court has held that an information officer cannot directly supply a person's
personal information unless the authority is satisfied that such disclosure would be in larger
public interest. The observations made in Mosley v. News Group Papes Ltd.36 ,in a broader
concept may be usefully referred to:
―It is not simply a matter of personal privacy versus the public interest. The
modern perception is that there is a public interest in respecting personal privacy.
It is thus a question of taking account of conflicting public interest considerations
and evaluating them according to increasingly well-recognized criteria.‖
2.14 Section 72 of The IT Act, 2000 imposes Penalty for breach of confidentiality and privacy.
It states that;
―Save as otherwise provided in this Act or any other law for the time
being in force, any person who, in pursuance of any of the powers conferred
under this Act, rules or regulations made thereunder, has secured access to
any electronic
33
34
Namit sharma V UOI, (2013 1 SCC (Civ) 786: (2013) 1 SCC (Cri) 737: 2013 1 SCC.
35
Union Public Service Commission vs R.K. Jain MANU/DE/3197/2012.
36
Mosley v. News Group Papes Ltd. [2008] EWHC 1777 (QB).
 21

record, book, register, correspondence, information, document or other

material without the consent of the person concerned discloses such
electronic record, book. register, correspondence, information, document or
other material to any other person shall be punished with imprisonment for a
term which may extend to two years, or with fine which may extend to one lakh
rupees, or with both.
The Police authorities were although in power to investigate but they were not authorized to
annex supremely private letters and pictures with the charge sheet without consent of
the information holder and therefore should eb held guilty under section 72 of the IT Act,
2000.

2.15 In respect to the power of search and seizure conferred upon the Police by the Code of
Criminal Procedure,1973, it is significant to remark what the landmark judgement of K.S.
Puttaswamy v. UOI &Ors. has to say;
―In an age of transformative technology and of privacy being placed at a much greater risk,
laws which were once deemed reasonable are now completely inadequate in
guaranteeing freedom and liberty as encapsulated by the right to privacy. The disparity
is even more pronounced in cases of investigation of cyber-crimes which rely almost
exclusively on digital evidence, such as those substantively enumerated under the Information
Technology Act, but investigated under the general procedure laid down in the Code of
Criminal Procedure, which is already mentioned. The procedures for investigation of cyber-
crimes and the search and seizure of digital evidence require special consideration and
must be brought in line with changing norms.‖
2.16 In R.Rajagopal v. State of T.N37; and PUCL v. UOI38, the courts observed that the right to
privacy is an essential ingredient of the right to life and further stated that;
―It is the right to freedom of speech and expression that gives the media the right to publish any
information. Reasonable restrictions on the exercise of the right can be imposed by the State in
the interests of sovereignty and integrity of the State, 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. Article 21 of the Constitution provides, No person
shall be deprived of his life or personal liberty except according to procedure established by law."
2.17 The Supreme Court in dealing with the question on the right to privacy, observed, that the
right to privacy is implicit in the right to life and liberty guaranteed to the citizens of
the country by Article 21. It is a ‗right to be left alone.‘ "A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child-bearing and
education among other matters.‖ The publication of any of the aforesaid personal information
without the consent of the person, whether accurate or inaccurate and ‗whether laudatory or
critical‘ would be in violation of the right to privacy of the person and liable for damages.
2.18 In PUCL v. UOI, the question before the court was whether wire-tapping was an
infringement of a citizen‘s right to privacy. The court held that an infringement on the right to
privacy would depend on the facts and circumstances of a case. It further observed that the
right to privacy also derives from Article 19 for "when a person is talking on telephone, he is
exercising his right to freedom of speech and expression." Similarly while Harry
wrote a letter to his girlfriend expressing his thoughts on womanhood he was exercising his
right to

37
R.Rajagopal v. State of T.N MANU/SC/0056/1995
38
PUCL v. UOI MANU/SC/0234/2003
 22

freedom of speech and expression and thus by disclosing it in the public the police authorities
have certainly infringed his right to privacy.
2.18 In the landmark the state must ensure that information is not used without the consent of
users and that it is used for the purpose and to the extent it was disclosed. Thus for eg; if the
posting on social media websites is meant only for a certain audience, which is possible as per
tools available, then it can not be said that all and sundry in public have a right to
somehow access that information and make use of it.39 Therefore annexing of letters, photos and
videos with public document which were posted on features. App was morally and legally
wrong as they were not meant for public in large.

2.19 In context to the case in Hand the judgement given in S. Vijayalakshmi vs. Union of
India40 is of utmost importance;
―The Hon'ble Division Bench after going through the reasons assigned by the State
Government, seeking to justify their decision under Section 24(4), held that confidentiality
and secrecy in certain cases are required to be maintained right from the initial stage upto
filing of charge sheet on the one hand and upto issue of final orders in the case of disciplinary
proceedings. In vigilance cases, giving information at the initial stage, investigation stage and
even prosecution stage would lead to unnecessary embarrassment and would definitely
hamper due process of investigation.‖
2.20 Keeping in view the issue in the present case, the users of the commu app always had an
option to delete their account if they ever relied upon the heresay evidence41 that their
information were shared with features and thus the actions of mothers along with Progressive
conservative Association of Indiana has to be held morally and legally wrong. 42
2.21 By virtue of all the points enumerated above it would be pertinent to state that there was
indeed an undue infringement of right to privacy by the search and publishing or private
Documents.

39
Ibid at 23.
40
S. Vijayalakshmi vs. Union of India, Rep. by its Secretary to Government, Ministry of Personnel, PG and Pensions,
North Block, New Delhi and Director, Central Bureau of Investigation Lodhi Road, CGO Complex, New Delhi.
09.09.2011 - MADHC : MANU/TN/4033/2011.
41
The phrase "hearsay evidence" is not used in the Evidence Act because it is inaccurate and vague. It is a
fundamental rule of evidence under the Indian Law that hearsay evidence is inadmissible. (Kalyan Kumar Gogoi vs
Ashutosh Agnihotri & Anr MANU/SC/0059/2011 : (2011)2 SCC 532.
42
Shri Vinod Kumar Gupta vs. Whatsapp Inc. 2017 SCC ONLINE CCI 32.
 23

SUB ISSUE 1: PRIVATE DOCUMENT CANNOT BE USED AS AN EVIDENCE.

Private document as defined in section 75 of the Indian Evidence Act, 1872 is ‗All other

documents are private .‘ That is all documents which are not stated to be public document in

section 74 of the same act are said to be private documents.

The Evidence that is Private unpublished document comes under section 75 of the Act. In the

case smt. Rekha Rana and Ors. Vs. Smt. Ratnashree Jain43 it was held that a private document

cannot be used in evidence unless its execution is admitted by the party against whom it is

intended to be used, or it is established proof that it is duly executed.

In the present case, the Evidence used against the accused was out of the knowledge of the

accused as it was taken by the police in the course of investigation and thus no question of

signing arising . thus the document being a private document cannot be used in as an evidence in

order to convict the accused.

SUB ISSUE 2: THAT THE EVIDENCE USED IS NOT RELEVANT.

According to The Indian Evidence Act ,

Section 3 defines as Evidence, ― Evidence‖ means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in

relation to matters of fact under inquiry, such statements are called oral evidence;

(2) [all documents including electronic records produced for the inspection of the Court], such

documents are called documentary evidence.

43
AIR 2006 MP 107
 24

Broadly, Evidence can be classified into various types amongst which the Direct and Indirect or

Circumstantial evidence being of primary importance to decide the cases. Direct evidence are

ones which if taken into account is believed to establish a fact in issue whereas Indirect or

Circumstantial evidence is the evidence which gives rise to logical inferences as to establish the

existence of a fact.

Circumstantial evidence may be conclusive or presumptive.44

The letter written by Harry to his ex. girlfriend Karry (the private document) is a presumptive

circumstantial evidence. Presumptive circumstantial evidence is where the fact rests on the

greater or a less degree of probability and hence are prone to explanations and elucidations. Here

the letter is an evidence not beyond all reasonable doubt as the text of the letter is subject to

interpretation resulting in uncertain probative value of the evidence and swings between the

probability of proving or not proving the guilt of the accused.

Element of Motive plays a vital role in the case is based mostly on circumstantial evidence .

Section 8 of The Indian Evidence Act,1872 deals with the factor of motive so as to determine the

relevancy of the evidence. Motive is something which prompts a man to form an intention and

knowledge is an awareness of consequences of the act . In many cases intention and knowledge

merege into each other and mean the same thing more or else and the intention can be presumed

from the knowledge. The demarcating line between knowledge and intention is no doubt thin

but difficult to perceive that they connote different things. 45

44
Ranchhoddas, Ratanlal and Thakore, Dhirajlal Keshavlal . The Law of Evidence . 23rd Edition. LexisNexis
Buttersworths Wadhwa. 2011
45
1965 SCR 363
 25

The letter written by Harry to his ex. girlfriend Karry , no where depicts his motive of outraging

the modesty of women by leaking and making viral the data containing obscene picture. The

knowledge or the intention of the same could also not be deciphered from the above talked letter

which was annexed to the chargesheet , as an evidence.

As the fact sheet states in para 12, the letter was found in bits and pieces thus opening it to

various interpretations and elucidations. The letter can be interpretated as a mere plan or business

idea , he wanted too share with his ex. girlfriend, subsequent to which he even edited the pictures

of women found attached to the clipboard at the company‘s headquarters. The same can even be

elucidated as a want to expand the feeling and perception of womanhood , in the social legal

context taking into account the way the morality is looked at in the society( as stated in the fact

sheet ; para 12) . There are levels of morality and ethics that are attached to a woman and

womanhood , so he wanted to consider those and make people feel about the perspective of

woman subjectively by observing and examining the socio – legal constraint. The letter, as

interpretated in the following two ways comes in the ambit of ‗good faith‘ and depicts no

wrongful motive.

The motive behind a crime is a relevant fact of which the evidence can be given. The absence of

a motive is also a circumstance which is relevant for assessing the evidence.46

Mere saying or expressing , with no motive , knowledge , intention and preparation leads to less

probative value of the letter (evidence) to decide the case.

SUB ISSUE 3 : THAT THE PRIVATE DOCUMENT IS VIOLATIVE OF ARTICLE 20(3) .

In the case Ranchhoddas Khimji Ashere vs Tempton Jahangir And Anr.47 It was stated that any
compulsory procedure of production of document (whether public or private ) is voilative of

46
AIR 1966 SC 1322
47
AIR 1961 Guj 137
 26

article 20(3) and even documents found during search and seizure and taken into the ambit of the
judgment.

In the present case the private document found during search and seiure and then attached to the
charge sheet was violative of the article 20(3) based on the above judgement given in the above
case.