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Before THE HONORABLE HIGH COURT OF CITY OF JOY UNDER ARTICLE 226 OF THE CONSTITUTION OF NARNIA, 1950. W.P. /(2018) IN THE MATTER OF MR. TRUE LIES ............................................................................................................................PETITIONER VERSUS UNION OF NARNIA AND ANOTHER .................................................................................. RESPONDENT
- UNION OF NARNIA………………………………….……………..…...RESPONDENT NO.
- SAYPM……………………………………………………………..…..RESPONDENT NO. MEMORANDUM FOR THE PETITIONER DRAWN AND FILED BY COUNSEL ON BEHALF OF PETITIONER
TEAM CODE –
I
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................I
LIST OF ABBREVIATIONS .................................................................................................. III
INDEX OF AUTHORITIES ..................................................................................................... V
STATEMENT OF JURISDICTION .......................................................................................... 1
STATEMENT OF FACTS ........................................................................................................ 2
ISSUES RAISED ....................................................................................................................... 3
1. WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT. .................... 3
2. WHETHER THE GOVERNMENT AND SAYPM ACTED IN COLLUSION
AND VIOLATED THE RIGHT TO PRIVACY OF THE CITIZENS UNDER ART.
21 OF THE CONSTITUTION OF NARNIA ................................................................ 3
3. SAYPM HAS VIOLATED THE CONTRACT AND DATA PROTECTION
LAWS OF NARNIA IN A MANNER THAT IMPACTED PUBLIC INTEREST AT
LARGE. ......................................................................................................................... 3
SUMMARY OF ARGUMENTS ............................................................................................... 4
ARGUMENTS ADVANCED ................................................................................................... 5
ISSUE 1: THAT THE WRIT PETITION IS MAINTAINABLE. ............................................. 5
1.1 MR. TRUE LIES HAS LOCUS STANDI .............................................................. 5
1.2 INVOLVES GENERAL PUBLIC INTEREST....................................................... 6
1.3 WRIT JURISDICTION CAN BE INVOKED AGAINST NON-STATE OR
PRIVATE ENTITES AS WELL ................................................................................... 6
1.4 ARTICLE 226 HAS A WIDE AMBIT. .................................................................. 7
ISSUE 2: THAT THE GOVERNMENT AND SAYPM HAVE ACTED IN COLLUSION
AND VIOLATED THE RIGHT TO PRIVACY OF THE CITIZENS UNDER ART. 21 OF
THE CONSTITUTION OF NARNIA. ...................................................................................... 8
2.1 RIGHT TO PRIVACY IS GUARANTEED BY THE CONSTITUTION OF
NARNIA ........................................................................................................................ 8
2.1.1 INFORMATIONAL PRIVACY IS A FACET OF RIGHT TO PRIVACY ......... 9
2.1.2 CONSENT FORMS THE FOUNDATION OF DATA PROTECTION ......... 10
2.1.3 THE GENERAL LAWS OF NARNIA ARE NOT SUFFICIENT FOR
SAFEGUARDING THE PRIVACY OF THE USERS OF SAYPM AND OTHER
SIMILAR MOBILE APPLICATIONS. ................................................................... 10
2.1.4 NEED FOR DATA PROTECTION LAWS .................................................... 11
2.1.5 P RINCIPLE OF PROPORTIONALITY ........................................................ 11
III
LIST OF ABBREVIATIONS
- & : And
- ¶ : Paragraph
- § : Section
- A.I.R. : All India Reporter
- A.P. : Andhra Pradesh
- Anr. : Another
- App. : Application
- Art. : Article
- A/c : Account
- Co. : Company
- Cal. : California
- Del. : Delhi
- Ed. : Edition
- ECHR : European Convention on Human Rights
- E.U. : European Union
- Hon’ble : Honorable
- HC : High Court
- i.e. : That is
- Inc. : Incorporation
- I.P.C. : Indian Penal Code
- IT Act : Information Technology Act, 2000
- ICCPR : International Covenant on Civil and Political Rights
- Ltd. : Limited
- M.P : Madhya Pradesh
- Mad. : Madras
- N.C.T. : National Capital Territory
- Ors. : Others
IV
- OECD : Organization for Economic Cooperation and Development
- PIL : Public Interest Litigation
- PM : Prime Minister
- PMO : Prime Minister’s Office
- Pvt. : Private
- Q.B. : Queen’s Bench
- SC : Supreme Court
- Sec. : Section
- S.C.C. : Supreme Court Cases
- S.C.R. : Supreme Court Review
- Supp. : Supplement
- T.N. : Tamil Nadu
- U.P : Uttar Pradesh
- U.S. : United States
- U.O.I. : Union of India
- USA : United States of America
- UDHR : Universal Declaration of Human Rights
- UNCITRAL : United Nations Commission on International Trade Law
- Vol. : Volume
- v/vs : Versus
- WP : Writ Petition
- W.L.R. : Weekly Law Reports
STATUTES, LEGISLATIONS & INTERNATIONAL CONVENTIONS
- A.V.M. Sales Corporation v. Anuradha Chemicals Pvt. Ltd., (2012) 2 S.C.C. CASE LAWS
- ABC v. State (NCT of Delhi), 10 S.C.C. 1 (2015) (India)
- Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645 (India).
- Akhil Bhartiya Soshit Karamchari Sangh (Rly.) v. Union of India, AIR 1981 SC
- (India)
- Smarak Trust v. V.R. Rudani & Ors., 1989 (2) SCC 691 (India). 5. Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav
- Aniruddha Bahal v. State, 2010 172 DLT 269 (India).................................................
- Attorney General v. Jonathan Cape, (1976) Q.B. 752. (UK)
- B.V. Nagaraju v. Oriental Insurance Co. Ltd., 1996 S.C.C. (5) 71 (India)..................
- Brooklyn Say, Bank v. O’ Neil, 324 U.S. 697. (U.S).
- Central Bank of India v. Grains and Gunny Agencies, A.I.R. 1989 M.P. 28 (India)
- Central Inland Transport Corporation Limited v. Brojo Nath, 1986 S.C.R. (2)
- Chairman, Railway board v. Chandima Das, AIR 2000 SC 988 (India) 16,
- Citi Bank N.A vs Standard Chartered Bank & Others, AIR 2005 SC 94 (India)
- Comb v. PayPal, Inc., 218 F. Supp. 2d 1165. (Cal.).
- CompuServe, Inc. v Patterson, 89 F. 3d 1257 Court of Appeals, 6 th Circuit 1996.
- Court in its own motion v. State, 146 (2008) DLT 429 (India)
- EV. Ram & Co. v. John Bhatt & co ltd, A.I.R. 1938 Mad 873 (India)........................
- Fertilizer Corporation Kamgar Union v UOI, 1981 AIR 344 (India)
- ...................................................................................................................................... 19. General Assurance Society Ltd. V. Chandumull Jain and Anr., 1996 A.I.R 1644 (India).
- George Mitchell (Chesterhall) Ltd. v. Finney Lock Seds Ltd. (1983) 3 W.L.R.
- (H.L.)............................................................................................................................
- Gherulal Parekh v. Mahadevdas Maiya, 1959 AIR 781 (India)
- Gideon v. Wain, 372 US 335 (1963)
- Gujarat State Financial Corporation v. Lotus
- Gura Singh v. State of Rajasthan, (2001) 2 SCC 205, 212. (India)
- Hartog v Colin & Shields, 3 All ER 566, at para 116. (UK)
- Hindustan Times v High Court of Allahabad, (2011) 13 S.C.C. 155 (India) VI
- Indian Express Newspapers(Bombay) Pvt. Ltd. v. UOI , AIR 1985 SC 515 (India).
- Jayalakshmi Jaitly v. UOI & Ors., 2002 (64) DRJ 1(India)
- K.S. Puttaswamy v. Union of India, LNIND 2017 SC 420 (India)
- Kishore Chand vs State Of Himachal Pradesh, 1990; AIR 2140, 1990 SCR Supl.(1)
- (India)
- ...................................................................................................................................... 31. KSL Industries v. National Textile Corporation, 2012 SSC OnLine Del 4189 (India).
- Others, 1995 S.C.C. (5) 482 (India) 32. Life Insurance Corporation of India v. Consumer Education and Research Centre and
- Lilly White v. Mannu-Swami, A.I.R. 1966 Mad 13 (India)
- 266 (India) 34. M/s Pawan Alloys & Casting Pvt. Ltd. Meerut v. U.P.S.E.B., 1997 Supp. (3) S.C.R.
- M/S Swastik Gases Pvt. Ltd. v. Indian Oil Corp. Ltd, (2013) 9 S.C.C. 32 (India).
- Madan Gopal Kakkad v. Nauat Dubey and Anr., 1992 SCC (3) 204 (India).
- Nakkheeran Publications & anr. v. Guru Sannidhanam, 2017 Indlaw MAD 7740;
- PUCL v Union of India, (1997) 1 S.C.C. 301 (India)
- ...................................................................................................................................... 39. R v HM Inspectorate of Pollution ex parte Greenpeace Ltd., [1994] 4 All ER 329 (UK).
- R. Rajagopal v. State of T.N., 6 S.C.C. 632 (1994) (India)
- Ram Jethmalani v. Union of India, 8 S.C.C. 1 (2011) (India)
- Ratanchand Hirachand v. Askar Nawaz Jung, A.I.R. 1976 A.P. 112 (India).
- Roach v. Garvan, (1740) 2 ATK 469 (471)
- RS Deboo v Hindlekar, AIR 1955 Bom 68 (India)......................................................
- S. Nagaraj v. State of Karnataka, 1993 SCC 595 Supp (4) (India).
- S.P.Gupta v. President of India & Ors., AIR 1982 SC 149 (India)
- Secretary, ONGC Ltd. v. V.U Warrier (2005) 5 SCC 245 (India).
- Seven Day Adventists v. M.A Uneerikutty, Appeal (civil) 4262 of 2001 (India)
- State of Maharashtra v. Bharat Shanti Lal Shah, 13 S.C.C. 5 (2008) (India)
- State of Orissa v. Ram Chandra Deo, AIR 1964 SC 685 (India).
- State of West Bengal v. Sampat, A.I.R. 1985 SC 195 (India)
- Swayambar Prasad v. State of Rajasthan AIR 1972 Raj 69 (India)
- U. Kesavulu Naidu v. Arithulai Ammal, (1912) I.L.R. 36 Mad 533 (India)
- UP State Co-Op. Land Development Bank v. Chandra Bhan Bubey and Ors., AIR VII
- SC 753 (India)
- 41 (India) 55. Uttar Pradesh State Sugar Corporation Ltd. v. Kamal Swaroop Tondon, (2008) 2 SCC
- Secretary, ONGC Ltd. v. V.U Warrier (2005) 5 SCC 245 (India)
- Vellore Citizens Welfare Forum v. Union of India, (1996) 5 S.C.C. 647 (India)
- Schedule B to the Canada Act, 1982 (Canada), 1. Charter of Rights and Freedoms , §7 and 8, Part 1 of the Constitution Act, 1982, being
- Consumer Protection Act, 2015, § 2. cl. (r).
- Credit Information Companies Act, 2015.
- European Convention on Human Rights Act, art. 8. (2003)
- INDIA CONST. art. 21.
- INDIA CONST. art.
- INDIA CONST. art. 51, cl. A(b)..................................................................................
- INDIA CONST. art. 51. 19,
- Indian Contract Act. §10. (India. 1872)
- personal data or information) Rules, 2011. 10. Information Technology (Reasonable security practices and procedures and sensitive
- Information Technology Act (India. 2000).
- Information Technology Act of 2000 (amended 2008).
- Information Technology Act, § 43. cl. a. (India. 2000).
- Information Technology Act. § 43 cl. A (India. 2000).
- Information Technology Act. §10. cl.A. (India. 2000).
- 95 - 20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171., Art. 17. 16. International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No.
- Rules, 2011, Rule 5(7) 17. IT (Reasonable Security Practices and Procedures and Sensitive Data and Information)
- PEN. CODE. § 406.
- Personal Information Protection and Electronic Documents Act, 2001 (Canada).......
- Telecommunications Act,
- The Cable Communications Policy Act,
- The Privacy Act, 1983 (Canada).
IX
- The Law Commission of India in its 103rd Report (May, 1984) recommended the insertion of Section 67 A of in the Indian Contract act to invalidate any contract or terms in a contract which are of a similar nature ......................................................... 31
- The Law Commission of India, 103rd Report, May, 1984 .......................................... 31
- The Privacy Act, 1983 (Canada) .................................................................................. 19
- Videotape Privacy Protection Act, 1988 ...................................................................... 19 BOOKS
- 2 H.M.SEERVAI, CONSTITUTIONAL LAW OF INDIA 1586 (4th^ ed. 2007) ........................... 16
- 6 D.D. BASU, C.K. THAKKER, SUBRAMANI, T S. DOABIA & B. P. BANERJEE, COMMENTARY ON THE CONSTITUTION OF INDIA 6614 (8th^ ed. 2012). ................................................... 16
- AIYAR RAMANATHA, P., CONCISE LAW DICTIONARY (2009). ......................................... 16
- APARNA VISHWANATHAN, CYBER LAW 195. ............................................................... 31
- BRYAN A. GARNER, BLACK’S LAW DICTIONARY (10th^ ed. 2014) .................................... 16
- Bryan A. Garner, Black’s Law Dictionary, 10 th^ ed. (2014) ......................................... 16
- D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani & T. S. Doabia & B. P. Banerjee eds., Vol. 6, 8th ed. 2012, p. 6614 ......................................................................................................................................
- Durga Das Basu, Law of The Press 68 (5th^ Ed. 2010). ................................................
- INSIGHT INTO E-CONTRACTS IN INDIA 65 (1st ed. 2005). ............................................. 31
- J.Beatson, A Burrows, J.Cartwright, “ Anson’s Law of Contract ” 172 (2010) ............ 31
- Karnika Seth, Computer, Internet and New Technology Law, 312 (2nd^ ed. 2016)...... 29
- NANDAN SETH, LAW RELATING TO COMPUTERS, INTERNET& E-COMMERCE 200 (5th^ ed.
- ............................................................................................................................ 34
- PRAVEEN DUGGAL, TEXTBOOK ON CYBER LAW 220 (2d ed. 2016) .............................. 35
- PRAVEEN DUGGAL, TEXTBOOK ON CYBER LAW 247 (2d ed. 2016) .............................. 35
1
STATEMENT OF JURISDICTION
The Petitioner most respectfully submits to the jurisdiction of this Hon’ble HC of City of Joy, vested under Art. 226^1 of the Constitution of Narnia. The present memorandum sets forth the facts, contentions and arguments in the present case. (^1) Power of HCs to issue certain writs (1) Notwithstanding anything in Article 32 every HC 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 HC 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 HC 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 HC shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the HC is closed on the last day of that period, before the expiry of the next day afterwards on which the HC 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 HC by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32
3
ISSUES RAISED
I.
WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT.
II.
WHETHER THE GOVERNMENT AND SAYPM ACTED IN COLLUSION AND
VIOLATED THE RIGHT TO PRIVACY OF THE CITIZENS UNDER ART. 21 OF THE
CONSTITUTION OF NARNIA.
III.
SAYPM HAS VIOLATED THE CONTRACT AND DATA PROTECTION LAWS OF
NARNIA IN A MANNER THAT IMPACTED PUBLIC INTEREST AT LARGE.
4
SUMMARY OF ARGUMENTS
ISSUE 1: THAT THE WRIT PETITION IS MAINTAINABLE.
It is most humbly submitted before the Hon’ble HC that the WP is maintainable on the grounds that it involves a general question of public importance and violation of fundamental rights, as well as legal rights which comes under the ambit of the jurisdiction invoked. Moreover, Mr. True Lies has locus standi to file this petition. ISSUE 2: THAT THE GOVERNMENT AND SAYPM HAVE ACTED IN COLLUSION AND VIOLATED THE RIGHT TO PRIVACY OF THE CITIZENS UNDER ART. 21 OF THE CONSTITUTION OF NARNIA. It is humbly submitted before this Hon’ble HC that the Government and SayPM have acted in collusion and violated the Right to Privacy of the citizens of Narnia under Art. 21 of the Constitution by sharing user data without prior consent, hence infringing their informational privacy. Moreover, the existing general laws are not sufficient for the data protection of the users of SayPM, SayMo and similar mobile applications. There is a need of data protection laws. Lastly, the sting operation was not violative of Art. 21 of the Constitution and does not infringe the rights of the Respondents. ISSUE 3: THAT SAYPM HAS VIOLATED THE CONTRACT AND DATA PROTECTION LAWS OF NARNIA IN A MANNER THAT IMPACTED PUBLIC INTEREST AT LARGE. It is most humbly submitted before this Hon’ble Court that the contract formed between the SayPM and its customer was violated by the Respondent no.2, since SayPM has failed to comply with the obligation to protect the data of its users, and the terms and conditions were also opposed to the public policy. Moreover, the subsequent change in the clause is unreasonable and arbitrary in nature since there was no consensus on the terms. Lastly, compromising with the security and confidentiality of the sensitive data of the customers results in an infringement of the privacy of the users by the Respondent.
6
4. Hence, it is humbly submitted that in the instant case, Mr. True Lies has genuine interest while represents the General Public and seeks remedy at large for public good, by this PIL. 1.2 INVOLVES GENERAL PUBLIC INTEREST 5. Furthermore, it is contented that SayPM has become the most popular e-payment service in Narnia, akin to Public Utility and hence, by sharing data to third party without consent infringes the privacy of the users at large. Also, the subsequent new clause which was incorporated in the terms and conditions is violative of the basic statutory right of the citizens. When a question of law of general public importance arises, jurisdiction under this Court can always be invoked. In the case, S. Nagaraj v. State of Karnataka^13 , SC held that “ Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the court should not be prejudicial to anyone.” 6. In the instant case, there is a question of general public importance as disclosing one’s sensitive data without giving prior notice to the customers and inserting a new clause which is against one’s right to privacy involves public at large because, right to privacy is a fundamental right an individual cannot waive his own fundamental right by any agreement as it will defeat the purpose of the constitution. 1.3 WRIT JURISDICTION CAN BE INVOKED AGAINST NON-STATE OR PRIVATE ENTITES AS WELL. 7. The Hon’ble SC in UP State Co. op. Land Development Bank v. Chandra Bhan Bubey and Ors.^14 , held that Art. 226 while empowering the HC for issue of orders or directions to any authority or person, does not make any such difference between public functions and private functions. Art. 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority.^15 8. In Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jaynti Mahotsav Smarak Trust v. V.R. Rudani,^16 , the SC concisely put this issue beyond the pale of controversy in the following words, “The term “Authority” used in Art. 226, in the context, must receive a liberal meaning unlike the term in Art. 12. Art. 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Art. 226 confers power on the HCs to (^13) S. Nagaraj v. State of Karnataka, 1993 SCC 595 Supp (4) (India). (^14) UP State Co-Op. Land Development Bank v. Chandra Bhan Bubey and Ors., AIR 1999 SC 753 (India). (^15) Id.
Smarak Trust v. V.R. Rudani & Ors., 1989 (2) SCC 691 (India). 5. Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav
& Ors., 1989 (2) SCC 691 (India).
7 issue writs for enforcement of the fundamental rights as well as legal rights. The words “any person or authority” used in Art. 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the state. Further, “Person” under Sec. 2(42) of the General Clauses Act shall include any company or association or body of individuals, whether incorporated or not.
9. Therefore, as the SayPM, in arguendo not a state under Art. 12, would still fall within the wider liberal meaning of authority under Art. 226, if not, will certainly fall within the scope of “any person” as it provides a public function and thus, this writ is maintainable under Art. 226. 1.4 ARTICLE 226 HAS A WIDE AMBIT. 10. It is humbly contented that the said petition is valid owning to the wide ambit of Art. 226. A HC may also exercise discretionary and equitable jurisdiction under Art. 226.^17 Art. 226 is wide in that sense, the concluding words of the Art. clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right & the said right is illegally invaded and threatened.^18 Since the Government and SayPM has violated the fundamental right of Right to Privacy, this petition is maintainable. 11. Similarly, assuming but not admitting that there has been no violation of a fundamental rights, it is still maintainable as Art. 226 may be invoked for any “other purpose” as well.^19 The order passed by the courts need not be restricted to the writs as the sole remedy, but may include any other such directions as the HC may deem fit.^20 12. Hence, in the light of the above stated arguments, it is humbly contented that the wide ambit of Art. 226 prima facie allows the petition to be maintainable. (^17) Uttar Pradesh State Sugar Corporation Ltd. v. Kamal Swaroop Tondon, (2008) 2 SCC 41 (India); Secretary, ONGC Ltd. v. V.U Warrier (2005) 5 SCC 245 (India). (^18) State of Orissa v. Ram Chandra Deo, AIR 1964 SC 685 (India). (^19) Basu, supra note 3. (^20) Swayambar Prasad v. State of Rajasthan AIR 1972 Raj 69 (India); Gujarat State Financial Corporation v. Lotus Hotel, AIR 1983 SC 848 (India); Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645
(India)
9 with Art. 5131 and Art. 25332 of the Constitution and as it is a “part of customary international law and therefore, part of Indian law. ”^33 2.1.1 INFORMATIONAL PRIVACY IS A FACET OF RIGHT TO PRIVACY
17. It is humbly submitted that the impugned acts of disclosure of user data by the respondents leads to a violation of Right to Privacy under Art. 21 of the Constitution. Informational privacy has been recognized as a form of privacy under Art. 21 of the Constitution. SayPM and the Government have allegedly shared user data to third party without consent, infringing the right to informational privacy. 18. It is submitted that, we live in an age of information and information is knowledge, and the old adage that “knowledge is power” has stark implications for the position of the individual where data is ubiquitous, an all-encompassing presence. It is to be noted that informational privacy does not deal with a person’s body but deals with a person’s mind, and therefore recognizes that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right.^34 As per the given facts of the instant case, the director of SayPM allegedly claimed to have received a call from the Prime Minister’s office demanding some user data, right before the General Elections in Narnia.^35 Also, during a meeting, the director Mrs. Money Bag stated that the Prime Minister wanted user data regarding the sale and popularity of his book which was being sold on SayPM and ‘some other information’^36. In addition to the above mentioned facts, it was also alleged that the Prime Minister’s own mobile application SayMo transferred user data to a few foreign companies for data analytics. No further investigation was conducted to substantiate the legitimacy of the above claims.^37 19. By sharing user data with the ruling party, SayPM has infringed the Right to Informational Privacy of its users. The Government and its app SayMo have also infringed the informational privacy of the citizens by attempting to collect user data of the citizens before general elections and transferring user data to foreign companies for data analytics. The (^31) INDIA CONST. art. 51. (^32) INDIA CONST. art. 253. (^33) Vellore Citizens Welfare Forum v. Union of India, 5 S.C.C. 647 (1996). (^34) Supra note 22. (^35) ¶ 5, Compromis. (^36) ¶ 6, Compromis. (^37) ¶ 9, Compromis.
10 Respondents therefore, will be liable for unauthorised use and control over the user data of the citizens.
20. It is a known fact that informational privacy is a facet of the right to privacy. State as well as non-state factors are endangering the privacy of an individual. Thus, informational privacy reflects an interest in preventing information about the self from being disseminated and controlling the extent of access to information.^38 This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit. The right has come to be recognized internationally as well. 2.1.2 CONSENT FORMS THE FOUNDATION OF DATA PROTECTION 21. It is humbly submitted that consent forms the foundation of data protection law in many jurisdictions^39. Consent has largely been considered to be an efficient means of protecting an individual’s information. First, consent is intuitively considered as the most appropriate method to ensure the protection of an individual’s autonomy^40. Allowing an individual to have autonomy over her personal information allows her to enjoy “informational privacy”.^41 Second, consent provides a “morally transformative” value as it justifies conduct, which might otherwise be considered wrongful.^42 22. In the instant case, consent was not taken from the users before sharing their data, hence both SayPM and SayMo will be liable for not taking the necessary steps to ensure protection of the users’ information, hence violating their right of autonomy over their information, thereby violating their informational privacy guaranteed to them under Art. 21 of the Constitution as well as various other sections of the IT Act of 2000.^43 2.1.3 THE GENERAL LAWS OF NARNIA ARE NOT SUFFICIENT FOR SAFEGUARDING THE PRIVACY OF THE USERS OF SAYPM AND OTHER SIMILAR MOBILE APPLICATIONS. 23. It is humbly submitted that the existing general laws are insufficient to safeguard the Right to Privacy of the citizens of Narnia, enshrined under Art. 21 of the Constitution of Narnia. (^38) Supra Note 22. (^39) Justice B.N. Srikrishna Committee, ‘White paper of the committee of experts on a data protection framework for India’, November 27, 2017. (^40) “In democratic societies, there is a fundamental belief in the uniqueness of the individual, in his basic dignity and worth..and in the need to maintain social processes that safeguard his sacred individuality.” See: Alan Westin, ‘Privacy and Freedom’ (1967). (^41) Adam Moore, ‘Toward Informational Privacy Rights’, 44 San Diego Law Review 809 (2007). (^42) 4 John Kleinig, ‘The Nature of Consent’ in ‘The Ethics of Consent- Theory and Practice’ (2009). (^43) Information Technology Act (India. 2000).
