ISSUE 1:

1. Whether there was infringement of right to privacy as envisaged under Article

21?
 The counsel humbly submits that the sole object of Article 226 is the enforcement
of the fundamental rights guaranteed by the constitution.1 Whatever other remedies
may be open to a person aggrieved, he has no right to complain under Article 226
where no “fundamental” right has been infringed, and infringement of fundamental
rights cannot be founded on remote or speculative ground. It is humbly submitted
by the counsels that there is no violation of fundamental rights. [1.1]

1.1 That there is no infringement of right to privacy as envisaged under Article

21
It is humbly submitted that in India it has been established that no fundamental
rights can be waived off. The Supreme Court in Behram Khurshid Pesikaka2
case said that you cannot waive off your fundamental rights. Even in Basheshar
Nath3 case, the Supreme Court clearly laid down that the citizen of India cannot
waive off his fundamental rights, the reason being fundamental rights is a basic
right and for an ideal society there must be some fundamental rights and
without which we cannot imagine an ideal modern welfare state. Art. 14
articulate right to equality, but you cannot say that you can waived off your
right to equality.
The Supreme Court also says that fundamental right should not be waived off
because it is essential for an individual to achieve his/her potential and without
these rights one cannot achieve his/her potential. Fundamental rights
guaranteed by the Indian Constitution are in nature of ‘negative rights.’ These
rights ensure that government does not infringe upon basic rights of its citizens,
therefore even state is under obligation to respect these rights and it is thought
to be against the spirit of fundamental rights if state itself direct its citizens to
waive off their fundamental rights.4

1.2 Doctrine of Waiver in Context of Fundamental Rights

The definition of the nature of waiver might be as such:

“Waiver proceeds on the basis that a man not under legal disability is the best
judge of his own interest and if, with knowledge of a right or privilege
conferred on him by statute, contract or otherwise, for his benefit, he
intentionally gives up the right or privilege, or choose not to exercise the right
or privilege to its full extent, he has a right to do so”.5

The Supreme Court has tried to define the concept of waiver of rights with the
help of certain landmark judgements:

1
Art. 226 of the Constitution of India.
2
AIR 1955 SC 123
3
AIR 1959 SC 149
4
Think India Journal: Comparative analysis of Doctrine of Waiver in context of Fundamental Rights in India and U.S.A, Vol.22-
Issue 14-December-2019
5
Durga Das Basu, Commentary On The Constitution Of India (8th edn., Wadhwa Nagpur 2007).), p 805
 In M.P. Sugar Mill Co. vs. State of U.P.6 the Supreme Court defined the Waiver
as following:
“Waiver means abandonment of a right and it may be either express or implied
from conduct, but its basic requirement is that it must be an intentional act with
knowledge. There can be no waiver unless the person who is said to have
waived is fully informed as to his right and with full knowledge of such right,
he intentionally abandons it.”

In Behram vs. State of Maharashtra7 Justice Venkatrama Aiyar in his minority

opinion classified the fundamental rights into two broad categories:
i) Rights conferring benefits on the individuals, and
ii) Those rights conferring benefits on the general public.

He further concluded that it was open to any person to waive his Fundamental
Right.8 However the majority opinion turned into that the fundamental rights
have been no longer stored inside the constitution simply for individual benefits
and therefore doctrine of waiver doesn’t apply in cases of Fundamental Rights.9

Attorney General in the Basheshar Nath v. Commissioner of Income-tax.10

S.R.Das C.J. and Kapur J. confined their view only upon whether rights under
Article 14 of the Constitution will be waived, since the said case relates to
violation of Article 14, placing aside the question "Whether any of the other
essential rights enshrined in Part III of our Constitution can or cannot be
waived off”? And held that doctrine of waiver does not apply in Article 14,
however both of them agreed that doctrine of waiver may or may not be applied
in other fundamental rights.

Justice Bhagwati instead differing from the view of Chief Justice gave wider
interpretation to the application of doctrine of waiver. Justice Bhagwati holds
that "it isn't open to a citizen to waive the fundamental rights conferred via Part
III of the Constitution." Justice Subba Rao also said that none of the Articles in
Part III of the Fundamental Rights can be waived off by the people of India.

S. K. Das J. on the contrary opined a dissent opinion and stated that there
should be some classification between rights which can be waived off and
which cannot be waived off. He concluded that "where a right or privilege
guaranteed by the Constitution rests in the individual and is primarily intended
for his benefit and does not fringe on the rights of others, it can be waived
provided that such waiver is not forbidden by law and does not contravene
public policy or morals”.

6
AIR 1979 SC 621
7
AIR1955 SC 123: (1955) 1 SCR 123
8
Mahabir Prashad Jain, Samaraditya Pal and Ruma Pal, Indian Constitutional Law (6th edn, Lexis Nexis Butterworths Wadhwa
Nagpur 2010).p. 1212
9
Think India Journal: Comparative analysis of Doctrine of Waiver in context of Fundamental Rights in India and U.S.A, Vol.22-
Issue 14-December-2019
10
AIR 1959 SC 149
 In view of the majority decision in Basheshar Nath Case11, it is now an
established proposition that an individual cannot waive any of his fundamental
rights. This proposition has been applied in number of cases12. In Olga Tellis
Case13, the Supreme Court said that if any individual either by mistake or
otherwise waives his Fundamental Right that does not create estoppels against
him. If estoppel is applied it would defeat the very purpose of the constitution.
In Nar Singh Pal v. Union of India14 the Supreme Court Observed: “No
individual can barter away the freedoms conferred on him by the constitution”.

Presently in India there is no waiver of Fundamental Rights provided under

Part III of the Constitution of India. However there are certain legal rights
which can be waived off in India. For instance, Plea Bargaining provided under
Sections 265A-L of CrPC, 1973, waiver of Contractual obligation provided
under Section 63 of I.C.A, 1872, etc.

In Justice K.S. Puttaswamy v. Union of India15 the Right to Privacy is

recognised as a Fundamental Right. In this case Justice Chandrachud however
discussed both the two important landmark judgement related to doctrine of
waiver and remarked that “decisional autonomy” is a manifestation of Right to
Privacy.

Decisional autonomy means that a person has a choice to waive off his/her
rights with respect to Right to Privacy. This would include the right of a person
to make an informed decision not to enforce his fundamental right. In other
words, he can “waive” it.

As Justice Nariman points out, privacy is only with regard to those details
which one does not choose to part with. Once details are in the public domain,
republishing them cannot be objected. In such a case, one can certainly take the
plea that a person has waived his fundamental right and cannot complain of
violation of privacy.16

Therefore, when a user of the DOST platform agrees to provide information

with knowledge of the purpose of the survey, they are considered to be waiving
their rights by giving the consent for the same.

ISSUE 2:
2. Whether the accused are guilty of criminal breach of trust r/w section 34 of
Indian Penal code, 1860?
 It is humbly submitted before this Hon’ble High Court that to constitute a
criminal breach of trust three essential ingredients are required:

11
Basheshar Nath v. Commissioner of Income Tax, A.I.R. 1959 S.C. 157
12
Yousuf Ali Fazalbhoy v. M.S.Kasbekar, AIR 1982 Bom. 135; Omega Advertising Agency v. State Electricity Board, AIR 1982 Gau.
37.
13
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
14
AIR 2000 SC 1401.
15
(2017) 10 SCC 1.
16
Naomi Campbell v. MGN Ltd., 2004 UKHL 22
 1. The accused must be entrusted with the property or with dominion over it,
2. The person so entrusted must use that property, or;
3. The accused must dishonestly use or dispose of that property or wilfully
suffer any other person to do so in violation,
a. of any direction of law prescribing the mode in which such trust is to be
discharged, or;
b. of any legal contract made touching the discharge of such trust.

In this case, Prof. Suryakanth Sindhe created the platform for gathering
information from users. Dost requires that you log in to the application before
you can access the questionnaire, so it will ask you for various consents about
accessing the data. The information provider must also be provided with a clear
privacy policy regarding how the information will be used, the purpose of the
survey, the retention time, and a clause relating to third parties.

In The Digital Personal Data Protection Bill, 2022 it is mentioned that the Data
Fiduciary may, where consent of the Data Principal has been obtained, share,
transfer or transmit the personal data to any Data Fiduciary, or engage, appoint,
use or involve a Data Processor to process personal data on its behalf, only
under a valid contract. Such Data Processor may, if permitted under its contract
with the Data Fiduciary, further engage, appoint, use, or involve another Data
Processor in processing personal data only under a valid contract.17

2.1 Privacy policy of different bigger Survey platform

1. YouGov
YouGov Omnibus, the fastest, most cost-effective way to obtain answers
from both national and selected samples; Pulse, that tracks actual online
consumer behaviour across laptops, smartphones and tablets. This app also
deals with Sensitive personal information of the user. This survey app has
over 1million+ users all over the world.
The privacy policy of the survey app YouGov clearly states that:18

We may share it within YouGov, with trusted third parties who provide
services to us, and on rare occasions with clients. Here is some more
information about the types of organisations and what we may share with
them:
1. YouGov Group companies
2. Our clients
3. Our Service Providers
4. Other organisations
This shows that the survey app has a strong privacy policy. Suryakanth
Shinde, as the professor, is knowledgeable about the legal responsibilities
that arise in the event of any problems. In the DOST privacy policy, it is
explicitly stated that information can be shared with third parties as per the

17
The Digital Personal Data Potection Bill, 2022_0.pdf (meity.gov.in)
18
YouGov | YouGov Direct Privacy Policy
 agreement and other third party related clauses. Due to the consent given by
the information provider, there is no criminal breach of trust.

2.2 Section 34 of the Indian Penal Code

It is humbly submitted before the Hon’ble High Court that Section 34 of the
Indian Penal Code recognizes the principle of vicarious liability in criminal
jurisprudence. A bare reading shows that the section could be dissected as
follows:
1. Criminal act is done by several persons;
2. Such act is done in furtherance of the common intention of all; and
3. Each of such person is liable for that act in same manner as it if it were done
by him alone.19
Original section 34 as it stood original code of 1860 was “When a criminal act
is done by several persons, each of such persons is liable for that act in the
same manner as if the act was done by him alone.” Later what was observed in
Queen vs. Gora Chand Gope & Ors. 20 new words were introduced into the act,
“in furtherance of common intention.”

It is humbly submitted before the Honourable High Court that this case strongly
comes under the horizons of the new words which were introduced into the
section 34 in 1870 and intention of the accused must be studied very carefully
as stated in facts as the accused can’t be liable because the act done is not
criminal in nature as in there is no criminal breach of trust in the case.

In Pandurang vs. State of Hyderabad,21 the court had in the mind the ultimate
act done in furtherance of common intention. It is submitted that the ultimate
act in this case i.e., selling the information of the information provider. It is
made very clear that the following agreement is made under the privacy policy
of the Dost platform on which the information provider had logged in and
given the required consent.

In Mehbub Shah vs King Emperor22 it was clear to the Lordships that the
common intention within the meaning of section implies a pre-arranged plan,
and to convict the accused of an offence applying the section it would be
proved that the criminal act was done in concert pursuant to the pre-arranged
plan. Here in this case, it is very clear that there is no pre-arranged plan.
Moreover, there was no meeting of minds among two accused. Prof. Srikanth
Shinde from the start was very clear that the subsequent agreement is also
based on the consent of the information provider.

Hence, it is humbly submitted that there was no presence of common intention

between both the accused. They cannot be charged under section 34 and hence
can’t be held guilty under section 405 i.e., criminal breach of trust of IPC.

19
Ratanlal & Dhirajlal, “The Indian Penal Code”, 36th Edition, 2019.
20
Queen vs. Gora Chand Gope & Ors (1866) 5 South WR (Cri) 45.
21
AIR 1955 SC216: 1955 Cr Lj 572
22
AIR 1945 PC 148.
ISSUE 3:
3. Whether there exists the common intention amongst the accused?
 It is humbly submitted before the Hon’ble High Court that there is no existence
of common intention between the company Think Data and the Prof.
Suryakanth Sindhe as per the Section 34 of the IPC, 1860.

3.1 Section 34 of Indian Penal Code, 1860

The Section 34 of the Indian Penal Code, 1860 states, “When a criminal act is
done by several persons in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if it were done by him
alone.” 23

This section is intended to meet cases in which it may be difficult to distinguish

between the acts of the individual members of a party or to prove what part was
exactly taken by each of them in furtherance of the common intention of all. 24
The reason why all are deemed guilty in such cases is that the presence of
accomplices gives encouragement, support and protection to the person actually
committing an act.

The essential ingredients of Section 34 of Indian Penal Code as stated and

restated by law Courts in plethora of cases are:

1. Common intention to commit a crime, and

2. Participation by all the accused in the act or acts in furtherance of the
common intention. These two things establish their joint liability. 25

The provision in intended to meet a case in which it may be difficult to

distinguish between acts of individual members of a party who act in
furtherance of the common intention of all or to prove exactly what part was
taken by each of them. The true contents of the section are that if two or more
persons intentionally do an act jointly, the position in law is just the same as if
each of them has done it individually by himself.26

The section does not envisage the separate act by all the accused persons for
becoming responsible for the ultimate criminal act. If such an interpretation is
accepted, the purpose o section 34 shall be rendered infructuous.27

Each can individually cause a separate cause a separate fatal blow. Yet, there
may not exist a common intention if there was no prior meeting of the mind. In
such a case, each would be individually liable for the injuries, he causes. 28

23
Section 34, Indian Penal Code
24
Mepa Dana, (1959) Bom LR 269.
25
Shaik China Brahmam v. State of A.P., AIR 2008 SC 610.
26
Ratanlal & Dhirajlal, 36th Edition (2019)
27
Syed Yousuf Hussain v State of AP, AIR 2013 SC 1677 :2013 Cr LJ 2172 : 2013 (5) Scale 346, (2013) 4 SCC 517; Suresh v State of
UP, 2001 (3)
28
Nandu & Dhaneshwar Naik v. The State, 1976 CriLJ 250
 3.1 Absence of common intention
It is humbly submitted that the accused is being dragged into the picture for no
justifiable cause and for no fault, participation or involvement of his in the
alleged act in the question. It is submitted that the accused had no intention to
commit any act contrary to law. ‘Common intention’ implies a pre-concerted
plan and acting in concert pursuant to the plan. Common intention comes into
being prior to the commission of the act in point of time, which need not be a
long gap.29

Common intention does not mean similar intention of several persons. To

constitute common intention, it is necessary that the intention of each one of
them be known to the rest of them and shared by them.30

Therefore, it is humbly submitted that there was no common intention between

Prof. Suryakanth and Think Data, in fact here is no criminal activity involve
because of the involvement of consent of the information provider in the present
case. Hence, in absence of common intention he must not be held liable under
section 34 of the Indian penal code.

Moreover, to sustain a charge under section 34, active participation in the

commission of the criminal act is required which is clearly present in the
present case.
It is humbly submitted that to honourable court that the accused cannot be
punished under the principle of joint liability because he had no intention to
breach the trust of the information provider.

ISSUE 4:
4. Whether there was infringement of right to privacy in cyber space with
reference to the Information technology act, 2000?
 It is humbly submitted before this Hon’ble High Court that there was no the
infringement of right to privacy in reference to the Information Technology Act,
2000.

Information Technology Act, 2000 (“IT Act”) was amended in the year 2008 to
bring in new provisions such as Section 43-A and Section 72-A.

4.1 Data Privacy: Key Features of the SPDI Rules:

SPDI is defined under rule 331. The following data is termed as SPDI:
– Passwords;
– Financial information,
– Physical, physiological and mental health condition;
29
Ramchander & Ors. V. The State of Rajasthan, 1970 Cr LJ 653
30
Hanuman Prasad v State of Rajasthan, (2009) 1 SCC 507 : (2009) 1 SCC Cr 564, the SC distinguishes common intention from
similar intention and also explains the meaning and applicability of the expression.
31
The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules,
2011 (indiankanoon.org)
 – Sexual orientation;
– Medical records and history;
– Biometric information;
– Any detail relating to the above as provided to body corporate for providing
service; and
– Any information received under the above by body corporate for processing,
stored or processed under lawful contract or otherwise

Under rule 532, a body corporate is required to obtain prior consent from the
information provider regarding the purpose of usage of the SPDI. Here in this
case by agreeing to the privacy policy of the Dost Platform by clicking on the “I
Agree) the consent has been given by the information giver to the person
collecting information to use the data as per the privacy policy.

Such information should be collected only if it is essential and required for a

lawful purpose connected with the functioning of the body corporate. In the
present case the purpose of collecting information was legal.

The SPDI Rules further mandate that a body corporate handling SPDI shall
provide a comprehensive privacy policy containing details such as the type of
information collected, the purpose for collection of information, the disclosure
policy, the security practices, and procedures followed etc. In the present case
the privacy policy was clearly mentioned.

Hence, it is humbly submitted that here the information collected from the
information provider is sensitive in nature but it was sold as per the privacy
policy agreed on the app after logged in into the app. Hence the Information
Technology (Reasonable Security Practices and Procedures and Sensitive
Personal Data or Information) Rules, 2011 (“SPDI Rules”) is not applicable.

4.2 Section 43A of Information Technology Act, 2000

The principal law governing internet use in India is the Information Technology
Act, 2000, that contains some provisions, which are relevant to protection of
privacy in India. Various provisions of the Information Technology Act and the
Rules there under provide for protection to the information shared on the
internet by the user. The protection can be summarized33 as follows:

1. These provisions require the corporate bodies to implement and maintain

reasonable security practices concerning the information that they receive, store,
deals, transfers etc.

2. It is mandatory for the corporate bodies to declare their privacy policy to the
user and obtain their consent to the same.34

32
The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules,
2011 (indiankanoon.org)
33
Based on the information sourced from India Telecommunications Privacy Report referred on
https://www.privacyinternational.org/reports.
 3. It is necessary to obtain consent of the users before collecting any sensitive
information and to state the lawful purposes for which the same shall be used by
the corporate body.35

4. It is also provided that any failure on the part of corporate body in this regard
shall attract a penalty in the form of compensation to the person affected by any
such failure and may also result in incurring a criminal liability if the
consequence of any such failure is wrongful loss or gain.36

Hence, it is submitted that section 43A is not invoked because consent was
taken by the Dost Platform through the privacy policy or agreement between
platform and user of the platform. Hence no criminal liability is arising.

4.3 Section 72A of Information Technology Act, 2000

It provides that “Punishment for disclosure of information in breach of lawful
contract. Save as otherwise provided in this Act or any other law for the time
being in force, any person including an intermediary who, while providing
services under the terms of lawful contract, has secured access to any material
containing personal information about another person, with the intent to cause
or knowing that he is likely to cause wrongful loss or wrongful gain discloses,
without the consent of the person concerned, or in breach of a lawful contract,
such material to any other person, shall be punished with imprisonment for a
term which may extend to three years, or with fine which may extend to five
lakh rupees, or with both”

Thus, every person who is possessing or dealing with personal data or

information as an obligation to be not to be negligent and as an obligation to
have reasonable security practices and procedures thereby no wrongful Laws or
wrongful gain takes place to any person.37

Hence, it is submitted before the honourable HC that the accused are not liable
under section 72A of the Information Technology Act, 2000 because there is no
criminal breach of trust.

34
Section 43A of the Act and Rule 4 of the Information Technology (Reasonable security practices and procedures and sensitive
personal data or information) Rules, 2011
35
Section 43A of the Act and Rule 5(1) of the Information Technology (Reasonable security practices and procedures and
sensitive personal data or information) Rules, 2011
36
Under Section 43A, any body corporate who fails to observe data protection norms may be liable to pay compensation if : it is
negligent in implementing and maintaining reasonable security practices, and thereby causes wrongful loss or wrongful gain to
any person. "Wrongful loss" and "wrongful gain" have been defined by Section 23 of the Indian Penal Code
37
Data Protection Laws In India - iPleaders