Winner Team Memorial Petitioners Slcu National Moot 13 202 Dishabhallaa Gmailcom 20240313 174203 1 31

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13th SLCU National Moot, 2023

Winner Team Memorial - Petitioners
School of Law
Christ University
Before the Hon'ble Supreme Court of the Union of Kennedy
In the Matters of
Civil Appeal No. 153/2022
Acanti … Appellant;
Versus
National Company Law Appellate Tribunal …
Respondent.
[Under Article 133 of the Constitution of UOK, 1950 Read With
Order XIX of the Supreme Court Rules, 2013]
With
Writ Petition No. 102/2022
Socialistic Liberal Party … Petitioner;
Versus
Union of Kennedy … Respondent.
[Under Article 32 of the Constitution of UOK, 1950 Read With Rule
1, Order XXXVII of the Supreme Court Rules, 2013]
And
Writ Petition No : 172/2022
Socialistic Liberal Party … Petitioner;
Versus
Union of Kennedy … Respondent.
[Under Article 32 of the Constitution of UOK, 1950 Read With Rule
1, Order XXXVII of the Supreme Court Rules, 2013]
The Matters are Clubbed Together Under Article 142 of the
Constitution of UOK, 1950 Read With Rule 3 of Order LV of the
Supreme Court Rules, 2013.
Memorandum On Behalf Of Petitioner
LIST OF ABBREVIATIONS
UOK Union of Kennedy
NNP Nationalistic People's Party
SLP Socialist Liberal Party
CCUK Competition Commission of Union
of Kennedy
NCLAT National Company Law Appellate
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Tribunal
UOI Union Of India
DPDP Digital Personal Data Protection
IT Information Technology
DHD Digital Health Data
DISHA Digital Information Security in
Healthcare Act
HIPPA Health Insurance Portability and
Accountability Act
PII Personally Identifiable
Information
USA United States of America
GDPR General Data Protection
Regulation
T&C Terms And Conditions
TABLE OF CONTENTS
List of Abbreviations III
Index of Authorities VI
Statement of Jurisdiction X
Statement of Facts XI
Issues Raised XIII
Summary of Arguments XIV
I. the Government has violated fundamental xiv
rights laid down in the Constitution of uok
by employing the unicorn software
II. Sections 8, 18, 19 and 22 of the DPDP Act, xiv
2022 are violative of the fundamental
rights enshrined in the Constitution of UOK
III. Bluetick Should have made available an xv
opt out of sharing with the parent
company option without users having let
go of their services.
IV. the terms and conditions of the recent xv
update by bluetick violate the provisions of
the Competition Act, 2002
Arguments Advanced 1
I. SECTIONS 8, 18, 19 AND 22 OF THE DPDP 1
ACT, 2022 ARE VIOLATIVE OF THE
FUNDAMENTAL RIGHTS ENSHRINED I N THE
CONSTITUTION OF UOK
A. The Grounds for 'Deemed Consent' 1
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violate fundamental rights

B. The Exemptions granted to the State 3
are unreasonable
C. The Constitution of the Regulatory 4
Board is not impartial
D. The Review and Appeal powers of the 5
board are arbitrary
II. THE GOVERNMENT HAS VIOLATED FUNDAMENTAL 5
RIGHTS LAID DOWN I N THE CONSTITUTION OF
UOK BY EMPLOYING THE UNICORN SOFTWARE
A. Violation of Right To Privacy Under 6
Article 21 of the Constitution
B. Curtailment of Speech and Expression 8
under Article 19 of the Constitution
C. Manifestly arbitrary and Unreasonable 9
under Article 14 of the Constitution.
III. B LUETICK SHOULD HAVE MADE AVAILABLE AN 10
OPT-OUT OF SHARING DATA WITH THE PARENT
COMPANY OPTION WITHOUT HAVING USERS TO
LET GO OF THEIR SERVICES
A. Principles of Contract Law 10
B. the privacy policy does not adhere to 11
the standards set under gdpr by
refusing an opt out option
C. General Obligations of a Data Fiduciary 13
D. Opt Out Option should had been made 14
available to the users as non-
performance of the same fails the ‘User
Choice Test’
IV. THE TERMS AND CONDITIONS OF THE RECENT 15
UPDATE BY BLUETICK VIOLATE THE PROVISIONS
OF THE COMPETITION ACT, 2002
A. the above case of data privacy concerns 15
involving social media intermediaries
falls within the purview of competition
act, 2002
B. Appreciable adverse effect on 16
competition
C. Acanti has entered into an anti- 16
competitive agreement by refusing to
deal with its customers if they fail to
comply with the updated terms of the
app
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D. Acanti violates the terms of competition 16

act by abusing its dominant position in
the Indian market.
PRAYER 19
INDEX OF AUTHORITIES
Cases
Ajay Goswami v. Union of India, (2007) 1 SCC 9
143 : AIR 2007 SC 493 (India)
Anita Thakur v. State of J&K, (2016) 15 SCC 7
525
Anuj Garg v. Hotel Association of India, (2008) 3
3 SCC 1 : AIR 2008 SC 663
Atos Worldline v. Verifone India, 2020 SCC 17
OnLine NCLAT 343
A.K. Kraipak v. Union of India, (1969) 2 SCC 5
262 : AIR 1970 SC 150
Boyd v. United States, 440 US 920 (1979) 11
Channa Pieris v. Attorney General, 2018 SCC 13
OnLine SL SC 69
Chintaman Rao v. State of M.P, AIR 1951 SC 9
118
Debs v. United States, 249 US 211 (1919) 9
E.P. Royappa v. State of Tamil Nadu, (1974) 2 9
SCR 348
G. Sarana v. University of Lucknow, (1976) 3 4
SCC 585 : AIR 1976 SC 2428 (India)
Google Spain SL v. Agencia Española de 12, 15
Protección de Datos 2014 Judgment of the Court
(Grand Chamber Case C-131/12
Harshita Chawla v. Whatsapp, 2020 SCC OnLine 15
CCI 32
Henderson v. Stevenson, [L.R.] 2 H.L. 470 11
Hoffmann-La Roche v. Commission, [1979] ECR 16
461
Justice K.S. Puttaswamy (Retd.) v. Union of 3, 6, 10, 12
India, (2017) 10 SCC 1
Kesavananda Bharati v. State of Kerala, (1973) 5
4 SCC 225 : AIR 1973 SC 1461 (India)
Kharak Singh v. State of UP, (1964) 1 SCR 332 14
Lamont v. Postmaster General, 381 US 301 12
(1965)
Maneka Gandhi v. Union of India, (1978) 1 SCC 11
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248
Minerva Mills Ltd. v. Union of India, (1980) 2 6
SCC 591 : AIR 1980 SC 1789, (1981) 1 SCR
206
Murray v. Big Pictures (UK) Ltd, (2008) UKHRR 10
736
Navtej Singh v. UOI, (2018) 10 SCC 1 : AIR 1
2018 SC 4321 (India); State of T.N v. V.S.
Balakrishnan, [1994 Supp (3) SCC 204](India);
Ashok Kumar Kapur v. Ashok Khanna, (2007) 5
SCC 189
R. Rajagopal v. State of Tamil Nadu, (1994) 6 8
SCC 632 (India)
Star India Pvt. Ltd v. Noida Software technology 16
park, 2016 SCC OnLine Del 427
State of Madras v. V.G. Row, (1952) 1 SCC 10
410 : AIR 1952 SC 196
Suresh Kumar Koushal v. Naz Foundation, 12
(2014) 1 SCC 1
Tarsem Singh v. Sukhminder Singh, (1998) 3 10
SCC 471
The Competition Act, 2002, §19, No. 13, Acts of 16
Parliament, 2003 (India
Union of India v. Shah Goverdhan L. Kabra 14
Teachers college, (2002) 8 SCC 228
Vinod Kumar Gupta v. Whatsapp Inc., 2017 SCC 17
OnLine CCI 32
Statutes
General Data Protection Regulation, 2016, §5(1) 4
(b), No. 2016/679, Acts of Parliament, 2016
(EU)
Indian Contract Act, 1872, §16(2)(a), No. 9, 13
Acts of Parliament, 1872 (India)
Indian Contract Act, 1872, §16(2), No. 9, Acts 13
of Parliament 1872 (India)
Indian Contract Act, 1872, §16, No. 9, Acts of 13
Parliament 1872 (India
Indian Telegraph Rules, 1951, Acts of 8
Parliament, 1951 (India
Information Technology Act, 2000, No. 21, Acts 10
of Parliament, 2000 (India
IT (Procedure and Safeguards for Interception, 8
Monitoring and Decryption of Information)
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Rules, 2009, Acts of Parliament, 2009 (India

The Competition Act, 2002, §2(s), No. 13, Acts 21
of Parliament, 2003 (India)
The Competition Act, 2002, §3 and 4, No. 13, 18
Acts of Parliament, 2003 (India
The competition Act, 2002, §4(2)(c), No. 13, 23
Acts of Parliament, 2003 (India)
The Competition Act, 2002, §4, No. 13, Acts of 20
Parliament, 2003 (India)
The Draft Digital Personal Data Potection Act, 1, 3, 4, 5
2022(India)
Vasunathan v. Registrar General, 2017 SCC 4
OnLine Kar 424
International Rules and Treaties
European Data Protection Directive, Art. 2(a) 9
General Data Protection Regulation, 2016, §17, 14, 16
No. 2016/679, Acts of Parliament, 2016 (EU
General Data Protection Regulation, 2016, §24, 15
No. 2016/679, Acts of Parliament, 2016 (EU)
General Data Protection Regulation, 2016, §7(1) 12
(b), No. 2016/679, Acts of Parliament, 2016
(EU)
No. 2016/679, Acts of Parliament, 2016(EU)
No. 2016/679, Acts of Parliament, 2016(EU)
Human Rights Act, 1998, Art. 10, Acts of 15
Parliament, 1998 (UK
The Health Insurance Portability and 9
Accountability Act of 1996, Act of Congress
1996 (US)
Universal Declaration of Human Rights, 1948, 7
art. 12
Journals
Aditi Bansal, Importing the “Chilling Effect” 10
Doctrine in Light of India's Current Legal
Landscape, [2021] 10.2 NULJ 39, 40
Dheerajendra Patanjali, Freedom of Speech and 8
Expression India v. America- A study, 3 India
L.J. (2007)
Diego M. Papayannis, Independence, 5
impartiality and neutrality in legal adjudication,
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Open Edition Journals, (2016)

https://journals.openedition.org/revus/3546
https://www.cci.gov.in/sites/default/files/15-of- 17
2020.pdf (last visited 29 January, 2023
https://www.cci.gov.in/sites/default/files/26% 17, 18
282%29%20Order%20in%20Case%20No %20
99%20of%202016.pdf (last visited 29 January
2023)
Constitution of India
INDIA CONST. Art. 19 15
India Const. art. 21 7
INDIA CONST. art. 14 5, 11
India Const. art. 19(1)(a) 9
INDIA CONST. art. 19(1)(b).. 11
Articles
Amber Sinha and Scott Mason, A Critique of Consent 2
in Data Privacy, The Centre For Internet And
SOCIETY,(Jan. 11, 2023, 6 : 42 pm),https://cis-
india.org/internet- governance/blog/a-critique-of-
consent-in-information-privacy
Danielle Abril and Drew Harwell, Keystroke Tracking, 2
screenshots and facial recognition : The boss may be
watching long after the pandemic ends, THE
WASHINGTON POST, (Jan. 27, 2023, 7 : 00 a.m),
Worker surveillance rises as more companies offer
remote work options - The Washington Post
Data is considered the new oil,” as coined by Clive 18
Humbly, the British mathematician (Charles, 2013);
Srivastava, A. and Kumar, D. (2022) “Digital
Economy, Data and Dominance : An Indian
Perspective”, Competition Commission of India
Journal on Competition Law and Policy, pp. 97-120.
doi : 10.54425/ccijoclp.v2.43
https://ec.europa.eu/justice/article- 17
29/documentation/opinion-
recommendation/files/2013/wp203_en.pdf (last
visited 29 January 2023)
Venugopal Mothkoor and Fatima Mumtaz, The digital 2
dream : Upskilling India for the future, IDEAS FOR
INDIA, (Jan. 23, 2023, 7 : 00pm)
<https://www.ideasforindia.in/topics/governance/the
-digital-dream-upskilling-india-for-the-future.html>
Books
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Sanjay Sharma, Data processing and GDPR 15, 16

Handbook 133 WILEY 2019
Vinod Dhall, Competition Law Today : Concepts, 18
Issues and the Law in Practice, Oxford University
press, 2007
Moot Proposition
Moot Proposition, Para 12 10, 11
Moot Proposition, Para 14. 1
Moot Proposition, Para 15 8, 9, 11
Online Sources
Cal.Cov.Code§178.100(b);https://id4d. 12
worldbank.org/guide/data-protection-and-privacy- laws# :
˜ : text=User%20consent%20and%20control,of%20the%
20IDEEA%20Guidance%2 0Note)
https://www.cci.gov.in/antitrust/orders/details/100/ 18
https://www.meity.gov.in/writereaddata/files/Explanatory% 14
20Note%2.pdf (last visited 31 January 2023)
https://www.privacyshield.gov/servlet/servlet. (last visited 3
29 January 2023 16 Siddhaant Verma, The Personal Data
Protection Act and the Right to Privacy, Indian
Constitutional Law and philosophy (Jan. 2, 2023, 8 : 24
am),
https://indconlawphil.wordpress.com/category/privacy/data
-protection
Vasudha Luniya, India : DISHA India's Probable Response 9
To The Law on Protection of Digital Health Data, MONDAQ,
(Jan. 27, 2023, 7 : 00 am),
https://www.mondaq.com/india/healthcare/1059266/
Others
“Report of the Competition Law Review 22
Committee” (Ministry of Corporate Affairs,
Combination Registration No. C-2020/06/747; 19
Combination Registration No. C-2020/09/775 19
European Commission, Directorate-General for 22
Competition, Montjoye, Y., Schweitzer, H., Crémer, J.
(2019) Competition policy for the digital era.
Publications Office.
https://data.europa.eu/doi/10.2763/407537 (last
visited 29 January 2023) 22
https://www.cci.gov.in/antitrust/orders/details/100/0 21
(last visited 23 January 2023 21
STATEMENT OF JURISDICTION
The petitioners most humbly submit that the Honorable Supreme
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Court of Union of Kennedy has the jurisdiction to hear the present

matters of :
I. Civil Appeal No. 153/2022 filed Under Article 133 Of The
Constitution Of UOK, 1950 Read With Order XIX Of The Supreme
Court Rules, 2013
II. Writ Petition No. 102/2022 filed Under Article 32 of the
Constitution of UOK, 1950 read with Rule 1, Order XXXVII of The
Supreme Court Rules, 2013
III. Writ Petition No. 172/2022 filed Under Article 32 of the
Constitution of UOK, 1950 read with Rule 1, Order XXXVII of The
Supreme Court Rules, 2013
The above-mentioned matters have been clubbed by the Hon'ble
Supreme Court of the Union of Kennedy into a single petition under
Article 142 of The Constitution of UOK, 1950 read with Rule 3 of Order
LV of The Supreme Court Rules, 2013.
The parties most humbly submit to the jurisdiction of this Honorable
Court
STATEMENT OF FACTS
1. The Union of Kennedy, is a sovereign, democratic and secular
country having a quasi-federal structure with the Constitution
bestowing upon its citizens certain fundamental rights. The
Nationalistic People's Party (NNP) is currently in power, dominates
the country's politics.
2. On 26th January 2022, in a leading national daily of Union of
Kennedy, an Open Editorial piece titled ‘Corporates now know
what you think & how you breathe’ made startling revelations and
revealed how the leading social media platforms like Bluetick,
were involved in the breach of privacy of its users, in order to
profit out of the targeted advertisements.
3. An independent agency stated that in the year 2014 on Blueticks
acquisition of Acanti, the most extensively used instant
messaging application in Union of Kennedy, there have been
numerous updates collecting more and more data from the users
under the garb of enabling attractive features. In 2016, an update
was introduced in Acanti's privacy policy wherein it was
announced that account information of its users would be shared
with Bluetick and all its group companies. It was further stated
that in order to continue using the application, the users had to
accept such terms and conditions by 25th September 2016.
4. Lulian Verlac, a tech expert and a user of Acanti, approached the
Competition Commission of Union of Kennedy (CCUK) against
Bluetick.
5. The CCUK ordered an investigation by the Director General as
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prescribed under Section 26 of the Competition Act, 2002 due to

the ‘take-it-or-leave-it’ nature of the contract.
6. Even though the policy provided for end-to-end encryption and
auto-deletion of messages left undelivered for 31 days, it
contained a provision wherein Acanti reserved the right to transfer
or assign the information it has collected from its users to a third-
party entity in event of merger/acquisition. Moreover, the policy
contained a provision wherein the users' data would be provided
to the Government if it had a ‘reasonable’ ground to access the
same.
7. The CCUK, opined that the concerned privacy policy creates a lock
-in effect for the users preventing them from migrating to similar
applications, thereby maintaining the dominant position of Acanti
in the market and hence the company was found to be indulging
in anti-competitive trade practices. Therefore, the commission
ruled in favor of the complainant.
8. The Bluetick contested the findings of CCUK in National Company
Law Appellate Tribunal (NCLAT). The appeal was dismissed by the
NCLAT, thus, on 19th October 2022, Acanti approached the
Supreme Court of Union of Kennedy in Civil Appeal No.
(153/2022) challenging the NCLAT's order.
9. An investigation revealed that a software planted in the devices of
the dissidents, which was found to be a spyware named Unicorn,
created by a technological firm named Dementor, which used the
same to spy on users of Bluetick. The spyware could be
downloaded into a device without the user's knowledge and could
breach his privacy.
10. The manufacturer submitted that only Governments could buy
the software. An international undercover agency revealed how
the spyware had been actively used since April of 2021 and how it
extracted users' data by tapping calls and accessing SMS. It was
also revealed that Bluetick allowed Dementor to access and store
its user data in order to predict behavior patterns. Subsequently,
this data collected by Dementor would be sold to the highest
bidder.
11. These instances stirred the public, who were now suspicious of
collusion of NPP with Dementor and Bluetick during and after the
elections. In light of the same, the opposition party filed a Writ
Petition (WP No. 102/2022) against the Government. To mitigate
the situation, the Government hurriedly passed the Digital
Personal Data Protection Act, 2022 on 19th November 2022.
12. On 7th December 2022, the most reputed Government hospital in
the Union of Kennedy, A.H.D.S., encountered a serious data
breach and the Government, refusing to take any action, claimed
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it was not responsible for this breach.

13. The SLP, which was a major opposition party, filed a Writ Petition
(WP No. 172/2022) in the Supreme Court of Union of Kennedy
contending that the leak occurred owing to Government's
negligence. Clubbing all the matters into a single petition, the
Supreme Court of the Union of Kennedy issued notices to Bluetick,
the Union of Kennedy and Dementor.
ISSUES RAISED
ISSUE I
WHETHER SECTION 8, 18, 19, AND 22 OF THE DIGITAL PERSONAL DATA
PROTECTION ACT, 2022 IS VIOLATIVE OF FUNDAMENTAL RIGHTS ENSHRINED IN
THE CONSTITUTION OF UNION OF KENNEDY?
ISSUE II
WHETHER THE GOVERNMENT VIOLATED THE FUNDAMENTAL RIGHTS LAID
DOWN IN THE CONSTITUTION OF UNION OF KENNEDY BY EMPLOYING THE
UNICORN SOFTWARE?
ISSUE III
WHETHER BLUETICK SHOULD HAVE MADE AVAILABLE AN OPT-OUT OF
SHARING DATA WITH THE PARENT COMPANY OPTION WITHOUT HAVING USERS TO
LET GO OF THEIR SERVICES?
ISSUE IV :
WHETHER THE TERMS AND CONDITIONS OF THE RECENT UPDATE BY BLUETICK
VIOLATE THE PROVISIONS OF THE COMPETITION ACT, 2002?
SUMMARY OF ARGUMENTS
I THE GOVERNMENT HAS VIOLATED FUNDAMENTAL RIGHTS LAID DOWN IN
THE CONSTITUTION OF UOK BY E MPLOYING THE UNICORN SOFTWARE
A. The applicant submits that the Government has violated
fundamental rights enshrined in the Constitution of UOK. K.S
Puttaswamy v. UOI declared the right to privacy as a fundamental
right under Article 21 of the Constitution. An invasion of the same
has to meet the requirement of i) legality ii) need and iii)
proportionality. The requirement of a need, in terms of a
legitimate State aim, ensures that the nature and content of the
law which imposes the restriction falls within the zone of
reasonableness mandated by Article 14. The freedom of speech
and expression is guaranteed under Article 19 of the Constitution.
A threat of surveillance leads to self censorship resulting in ‘The
Chilling Effect’.
B. The arbitrary use of Unicorn software by the Government to gain
an unfair advantage during elections defeats the ‘Doctrine of
Proportionality’. The snooping on journalists curbs their freedom
of speech and expression and is an assault on their public
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watchdog role. Therefore, it can be concluded that the

Government has violated fundamental rights mentioned under
Article 14, 19 and 21 under Part III of the Constitution of UOK.
II. SECTIONS 8, 18, 19 AND 22 OF THE DPDP ACT , 2022 ARE
VIOLATIVE OF THE FUNDAMENTAL RIGHTS ENSHRINED IN THE
CONSTITUTION OF UOK
A. The State passed the DPDP Act, 2022 in both the houses of the
parliament. Section 8, 18, 19 and 22 talk about Deemed Consent,
Exemptions, Data Protection Board of India and Review & Appeal
power respectively. Certain provisions under all these sections are
violative of fundamental rights enshrined in the Constitution of
UOK.
B. The grounds provided in Section 8 for deemed consent cover
broad fields like Public Interest which include things like Credit
Scoring which cannot be included in the most liberal definition of
such terms. It uses vague terms like ‘reasonable expectation’ and
even if the data principal gives the data voluntarily, no real choice
is exercised due to the complex and ambiguous nature of the
terms of consent. Section 18 covers exemptions that do not
satisfy the test of proportionality moreover it violates the data
principal's RTBF. Section 19 of the act discusses the Constitution
of the regulatory board which is to be appointed solely by the
Central Government. Moreover, Section 22 gives the board the
power to review its own decision and takes away the courts power
to grant injunctions. Both these provisions taken collectively raise
a question on the impartiality of the board.
C. Therefore, the aforementioned sections of the act violate the Right
to Privacy which is a fundamental right under Article 21 enshrined
in the Constitution of UOK.
III. BLUETICK SHOULD HAVE MADE AVAILABLE AN OPT OUT OF SHARING
WITH THE PARENT COMPANY OPTION WITHOUT USERS HAVING LET GO
OF T HEIR SERVICES
A. Bluetick should have made available an opt out option, in
compliance with principles of consent under privacy laws, general
principles of data processing, best practices worldwide and the
user choice test.
B. The consent obtained above is has not been obtained in a clear
and unambiguous way, as user vulnerability and asymmetric
power of the service provider has been misused.
C. The lawful principles of data processing have not been adhered to
by violating the right to be forgotten and by violating the right to
freedom of speech and expression by inducing self-censorship.
D. Opt out consent should have been made available as adherence to
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purpose limitation and user choice test

IV. THE TERMS AND CONDITIONS OF THE RECENT UPDATE BY BLUETICK
VIOLATE THE PROVISIONS OF THE COMPETITION ACT , 2002
A. The above case falls within the purview of the competition act as
it influences consumer welfare in the social media market in
India. It also has an appreciable adverse effect on competition by
refusal to deal with those consumers who do not comply with the
new terms of the new privacy policy.
B. It enjoys dominant position in India in the category of
Instantaneous messaging services or social media apps and
abuses this dominant position by restricting the supply of services
to its consumers.
ARGUMENTS ADVANCED
I. SECTIONS 8, 18, 19 AND 22 OF THE DPDP ACT , 2022 ARE
VIOLATIVE OF THE FUNDAMENTAL RIGHTS ENSHRINED IN THE
CONSTITUTION OF UOK
1. The State passed the DPDP Act, 2022 in both the houses of the
parliament.1 Section 8, 18, 19 and 22 contain provisions with respect to
Deemed Consent, Exemptions, Data Protection Board of India and
Review & Appeal power respectively.2
2. The applicant submits that The Grounds for ‘Deemed Consent’
violate fundamental rights (A) The Exemptions granted to the State are
unreasonable (B) The Constitution of the Regulatory Board is not
impartial (C) The Review and Appeal powers of the board are arbitrary
(D)
A. THE GROUNDS FOR ‘DEEMED CONSENT’ VIOLATE FUNDAMENTAL RIGHTS
3. Deemed Consent under Section 8 of the DPDP Act, 2022 sets out
situations where the consent of the data principal for processing of her
data is assumed and does not need to be explicitly sought. Deemed
consent is determined by courts based on the circumstances of a case
and the actions of parties involved.3
4. The section of Deemed consent in the present instance violates
the fundamental right to privacy due to Problem of Determining
Reasonable Expectation (i) Non Consensual Data Processing by
Employer (ii) Wide Interpretation of ‘Public Interest’(iii)
i. Problem of Determining Reasonable Expectation
5. The ‘deemed consent’ provision notes that consent is deemed to
be given in a situation where a data principal voluntarily provides the
data and it is reasonably expected that she would provide such
personal data.4 However, it makes no mention of the consent being
limited to the purpose for which data was provided.
6. The data principal cannot be expected to voluntarily provide the
personal data as privacy notices are long and difficult to understand,
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the principle of purpose limitation, which say that is not followed in

practice when data is collected for vague purposes like ‘for marketing
purposes’ or ‘to improve the user satisfaction.5 Furthermore, most
privacy notices online are not available in the local language which
works against 89 percent of the worlds population who cannot
understand English.6
7. ‘Reasonable expectation’ is what each human being considers to
be legitimate as per their perception. Literacy is fundamental to have a
guided perception. However this is extremely complex in a country like
India where digital literacy rates vary widely between rural (25%) and
urban areas (61%), between sectors and within sectors themselves.7
8. This lack of literacy opens the door for non-consensual processing
of an employee's data by her employer seriously violating an
employee's privacy. Such a provision will now enable the further use of
surveillance technologies.8
9. Moreover, access to details such as sexual orientation, sex life,
transgender status, caste, religious affiliation etc- can lead to
unfettered workplace discrimination of gender, sexual, caste and
religious minorities.9
10. Therefore, this provision under Section 8 of the act is not only
violative Article 21 but also Article 16(2) of the Constitution of the UOK.
ii. Wide Interpretation of ‘Public Interest’
11. Deemed consent is provided on a broadly defined ground of
‘public interest’. Public interest has been defined under as including the
sovereignty of India, security of State, public order etc.10
12. However, S. 8(8) provides for deemed consent in cases of credit
scoring, which is wholly incompatible with even the most liberal
definition of public interest.11 Puttaswamy has clearly prescribed for a
requirement of ‘narrow tailoring’ of a law infringing the right to privacy,
i.e., the law must be framed restrictively to achieve its stated
objective.12 The object of the Act needlessly broadens the ambit of
public interest to include unrelated grounds is uncalled for.13
13. Therefore, the impugned provision under Section 8 of the DPDP
Act, 2022 is violative of the right to privacy under Article 21 of the
Constitution of the UOK.
B. THE EXEMPTIONS GRANTED TO THE STATE ARE UNREASONABLE
14. Section 18 empowers the Central Government to exempt
instrumentalities of state from the application of the provisions of the
Act. It is pertinent to note that this is a blanket exemption without any
procedural safeguards. Maneka Gandhi v. Union of India propounded
that a transgression of Article 21 must meet the threshold of a ‘fair,
just and reasonable’ procedure.14 This is ensured by meeting the test of
proportionality.15 The proportionality test, now concretized by
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judgments such as Anuradha Bhasin v. Union of India, contains three

prongs— (a) the law infringing on privacy must have a legitimate goal,
(b) it must bear a rational nexus with the said goal, (c) it must not
have a disproportionate impact on the right-holder.16
15. The existence of DPDP Act, 2022 violates two prongs. A blanket
exemption to the Government from all provisions of the Act is excessive
and arbitrary. In this regard the court held in Anuj Garg v. Hotel
Association of India.17 that legislations which impinged on individual
autonomy and privacy by giving expression to oppressive cultural
norms, must attract judicial scrutiny.
16. According to Section 18, instrumentalities of state are also
exempt from the requirement of purpose limitation, i.e., erasing
personal data after its need has been fulfilled.18 The court in
Vasunathan v. Registrar General has recognized the importance of the
Data principal's RTBF.19 This right is based on the importance of the
autonomy of the data principal. Justice Kaul in Puttaswamy explained
that since people change an individual should have the capacity to
change his/her beliefs and evolve as a person. They should not live in
fear that the views they expressed will forever be associated with them
and thus refrain from expressing themselves.20 Thus, an individual
should be able to control the use of their data to protect their dignity
and autonomy.
17. In the present case the act does not specify the time period for
which the Government can hold data and neither is any explanation,
clear grounds or legitimate aim given regarding the same. As per
Puttaswamy- II, in which the court stuck down a regulation that
allowed the UIDAI to retain certain transaction data for a period of five
years because of disproportionate nature of the provision and
recognized that it affected the RTBF of citizens, the Government has
violated the RTBF of the citizens.21 This is a patent violation of the
proportionality test.22
18. Therefore, Section 18 of the DPDP Act, 2022 is violative of Right
to Equality under Article 14 and Right To Privacy under Article 21 of the
Constitution of the UOK.
C. THE CONSTITUTION OF THE REGULATORY BOARD IS NOT IMPARTIAL
19. Section 19 of the act discusses the Constitution of the regulatory
board which is to be appointed solely by the Central Government. This
appointment must be impartial and free from bias in making the
selections. The judicial trend has been to insist on “fairplay in action”
on administrative authorities whether they are exercising administrative
or quasi-judicial functions.23 This was reiterated by the Hon'ble Supreme
court in A.K. Kraipak v. Union of India, where the Court held that
though the selection of a person for a Government job by a selection
committee was administrative, it was incumbent on the committee to
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act free from bias.24

20. In the present case the appointment standards to be followed by
the Government do not find a place in the act and it also refrains from
specifying who is eligible to be a part of the board as that would be
prescribed by the Government at a later date.
21. Therefore, the impugned section of the act is manifestly arbitrary
and threatens the privacy of the data principals thus violating Article 14
and Article 21 of the Constitution of the UOK.
D. THE REVIEW AND APPEAL POWERS OF THE BOARD ARE ARBITRARY
22. Section 22 of the act says that “no injunction shall be granted by
any court or other authority in respect of any action taken under the
provisions of this Act”.
23. The Supreme Court held in Transmission Corpn. of A.P. Ltd. v.
Lanco Kondapalli Power (P) Ltd. that there is no established rule of
exclusion which would deprive a court of jurisdiction to issue an
injunction. If injunction is refused in this proceeding, it may give rise to
a stalemate.25
24. The SC propounded the Doctorine of Basic Structure of the
Constitution in Kesavananda Bharati v. State of Kerala where any
Constitutional amendment was to be tested on the touchstone of this
basic structure.26 In L. Chandra Kumar v. UOI; Indira Gandhi v. Raj
Narain etc, judicial review was held as a part of the basic structure of
the Constitution.27
25. Therefore, it is evident that the provision by denying any court
the power to grant injunction is an obstacle to its power of judicial
review and threatens the privacy of the citizens thus violating Article 21
of the Constitution.
II. THE GOVERNMENT HAS VIOLATED FUNDAMENTAL RIGHTS LAID DOWN
IN THE CONSTITUTION OF UOK BY E MPLOYING THE UNICORN SOFTWARE
26. Union Of Kennedy guarantees fundamental rights to its citizens
under part III of the Constitution. The State is under a Constitutional
mandate to protect these fundamental rights and any state action in
violation of these rights is to that extent void. 28
27. The applicant submits that the action of the Government of
employing the Unicorn software on the citizens of UOK is a Violation of
Right to Privacy under Article 21 of the Constitution (A) Curtailment of
Speech and Expression under Article 19 of the Constitution (B)
Manifestly arbitrary and Unreasonable under Article 14 of the
Constitution (C).
A. VIOLATION OF RIGHT TO PRIVACY UNDER ARTICLE 21 OF THE
CONSTITUTION
28. Article 21 of the Constitution guarantees to every citizen the
right to life and personal liberty.29 Under the Right to Life, the Right to
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Privacy constitutes an imperative aspect as stated in K.S Puttaswamy v.

Union Of India.30 This right to privacy also has international legitimacy
and is being followed in most of the common law countries as under
Article 12 of the Universal Declaration of Human Rights.31
29. Invasion of privacy is justified only on the basis of a law which
stipulates a procedure which is fair, just and reasonable.32 In the
present case the Government action is unjustified due to Failure to
meet the ‘Three pronged Test of Proportionality’ (i) Breaching Sensitive
Personal Data Privacy of A.H.D.S patients (ii)
i. Three -Pronged Test Of Proportionality
30. The standard for proportionality entails establishment of a
rational nexus either on the basis of “security of state” which refers only
to serious and aggravated forms of public order and not ordinary
breaches of public order and public safety, e.g. unlawful assembly, riot,
affray or “Public order” which is beyond ‘ordinary’ maintenance of law
and order and disturbs public tranquility or public peace.33
31. In the present case, the citizens and opposition parties in the
UoK are merely voicing their disapproval against the Government.34
Such disapproval does not lead to disturbance of public tranquility and
is not a serious and aggravated form of public order.35
32. The purchase and use of this spyware by the Government to
arbitrarily alter the election outcome to gain an unfair advantage during
elections is also against the Indian Telegraph Rules, 195136 and IT
Rules, 200937 which do not allow the installation of spyware on devices
for the purposes of hacking.
33. Therefore, the impugned act of the Government is blatant
violation of the fundamental right guaranteed under Article 21 of the
Constitution of UOK.
ii. Breach of Sensitive Personal Data Privacy of A.H.D.S Patients
34. DISHA regulations lay down provisions that regulate the
generation, collection, access, storage, transmission and use of Digital
Health Data (“DHD”) and associated personally identifiable information
(“PII”).38 These provisions effectuate compliance with international best
practices under HIPPA, 1996 which mandates ‘administrative
simplification’ in the health sector, making the unauthorized use of
identifiable personal information punishable.39 A similar prohibition is
contained in the 1995 Council of European Union Directive on the
protection of individuals with regard to the processing of personal
data.40
35. In the present case the A.H.D.S, which is the most reputed
Government hospital, suffered a serious data breach due to the
negligence of the Government. The Government not only denied any
responsibility but also refused to take any action regarding the same.41
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This was a violation of their responsibility under DISHA regulation. This

led to the breach of privacy of about 40 million people.
36. Therefore, it can be concluded that the Government not only
violated the Right to Privacy under Article 21 but also disregarded the
faith and breached the trust of the citizens when it refused to take
responsibility for the leak of private and sensitive information.
B. CURTAILMENT OF SPEECH AND EXPRESSION UNDER ARTICLE 19 OF THE
CONSTITUTION
37. Article 19(1)(a) of the Constitution guarantees to every citizen
the ‘freedom of speech and expression’.42 However, an individual
cannot exercise this right if he is under surveillance and has the
knowledge that there is a threat of being spied upon.43 Such a scenario
might result in self-censorship or more popularly known as ‘The Chilling
Effect’ (i) Surveillance and infringement on the right must meet “The
Clear and Present Danger Test” (ii)
i. The Chilling Effect
38. The Doctrine of Chilling Effect is basically the phenomenon that
obstructs the lawful exercise of the natural or legal rights given to a
citizen by posing a threat of legal deterrent.44 A recent example being
the decline of political stand up comedies due to increasing cases of
sedition. One possible test of chilling effect is comparative harm.45 In
that respect R. Rajagopal v. State of Tamil Nadu the Supreme Court
discussed the right to privacy in the context of the freedom of the
press.46
39. In the present case the list of potential snooping targets voiced
considerable criticism against the decisions of the Government.47 Their
names being on the list is of considerable concern as such chilling
effect on the freedom of speech is an assault on the vital public-
watchdog role. Section 66 A of the IT Act, 200048 was struck down for
the same reason.
40. Therefore, the restrictions satisfying the test of comparative
harm and violate fundamental right under Article 19 of the Constitution
of UOK.
ii. The Clear and Present Danger Test
41. The ‘Clear And Present Danger Test’ was laid down by the US
supreme court in Debs v. United States49 which was followed in Ajay
Goswami v. Union Of India50 where the court said that “the danger
must not be remote, conjectural or farfetched”. This was introduced
because the right to protest is itself a fundamental right of the
citizens.51
42. The facts of the case show that there were mass protests and
considerable criticisms against the Government.52 However, unpopular
viewpoint is alone not enough to justify a restriction on freedom of
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speech and expression.

43. Therefore, it can be concluded that the impugned act of the
Government violated Article 19(1)(a) of the Constitution.
C. MANIFESTLY ARBITRARY AND UNREASONABLE UNDER ARTICLE 14 OF
THE CONSTITUTION
44. An act is arbitrary and violative of Article 14 if it is implicit in it
that it is unequal both according to political logic and Constitutional
law.53 The state has to ensure reasonableness mandated by Article 14,
which is a guarantee against arbitrary State action at all times.54
45. In Chintaman Rao v. State of M.P, the Court propounded that
“reasonable restrictions” implies that the restraint imposed on a citizen
in enjoyment of the right “should not be arbitrary or of an excessive
nature, beyond what is required in the interests of the public”.55 Further
in State of Madras v. V.G. Row held-
“the test of reasonableness, where ever prescribed, should be
applied to each, individual statute impugned and no abstract
standard, or general pattern of reasonableness can be laid down as
applicable to all cases.”56
46. In the present case the Government used the Unicorn software
to spy on the citizens, most of whom included journalists, judges and
political leaders.57 This was manifestly arbitrary and unreasonable as it
tampered with the mental faculty of the citizens.
47. Therefore, the impugned act violates the fundamental right
under Article 14 of the Constitution of UOK.
III. BLUETICK SHOULD HAVE MADE AVAILABLE AN OPT-OUT OF SHARING
DATA WITH THE PARENT COMPANY OPTION WITHOUT HAVING USERS TO
LET GO OF THEIR SERVICES
48. Right to Privacy is inalienable part of Right to Life.58 It involves a
reasonable expectation against non-disclosure of personal data.59 To
protect this expectation, data needs to be collected through user
consent.60 through free and fair means.61 The data must confirm to
purpose limitation, data minimalization and accuracy.62 Additionally,
The data controller must respect the rights of the data subject and
uphold general obligations of the data fiduciary.63
49. Acanti, therefore was under an obligation to obtain the free
consent under contract law (A) privacy laws and best practices
worldwide (B) General Obligations of Data Fiduciary (C) provide an opt
out option according to the user choice test (D)
A. PRINCIPLES OF CONTRACT LAW
50. Free consent is pre-requisite to a valid contract.64 ‘Consent is
free when it works without obstacles to impede its exercise’ and it
should not be prejudiced in any way.65
When one of the contracting parties is dominant and it to influence
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the other party into complying with unfair terms, the contract falls
under undue influence.66
51. The petitioners submit, in the present case, free consent has
been violated by dominant position of Acanti in a fiduciary relationship
and through use of such dominance to obtain consent.
i. Acanti holds a dominant position with regards to its users
52. One such case where a party holds dominance over another is
with respect to fiduciary relationships, when one party has real or
apparent authority over another.67 On a bare reading of Section 16 of
the Indian contract act, this means a party with the will to dominate
another is in a position to do so. As held in Henderson v. Stevenson in
standard form of contracts and prima facie one party in a lower
bargaining position as compared to another.68 Dominant position leads
to undue influence once it has been established that consent given was
impacted by the conduct of the dominant party. 69
53. In the present case, Acanti holds dominant authority and also
creates a lock-in effect for its users, further supplanting its dominant
position. The mental faculty of the users was heavily impaired.
B. THE PRIVACY POLICY DOES NOT ADHERE TO THE STANDARDS
SET UNDER GDPR BY REFUSING AN OPT OUT OPTION
54. Privacy jurisprudence world-wide has held that infringement of
data privacy violates users' right to personal security, personal liberty
and private property.70 These rights have been recognized as true.71 To
ensure these rights, due to nascency of data privacy jurisprudence in
India, GDPR has been recognized as the gold standard and all
companies processing data are required to abide by it. An explanatory
note to the Draft DPDP Bill 2022, clarifies that GDPR has been consulted
for framing the said legislation.72
55. Acanti and Bluetick do not comply with the lawful principles of
data processing, consequently i) fails to uphold the rights of data
subject and ii)fulfil the general obligations of a data fiduciary under the
GDPR and similarly accepted data practices73 Lawfulness, fairness and
transparency of data processing involves upholding the rights subjects,
which are under right to privacy, the- right to be forgotten (i) right to
freedom of speech and expression and right against self-censorship. (ii)
These rights fall under the umbrella concept of lawfulness and non-
fulfilment of one means the breakdown of the entire test.74
i. Right to be Forgotten
56. Right to be forgotten or right to erasure stems from the fact that
an individual should be allowed to remove personal data from the
internet75 , similarly, a concrete procedure is needed to ensure such
data is removed from back-up storage, this right overrides, not only the
economic interest of the operator but the interest of the general
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public.76
57. The privacy policy clause mentioning transfer of information to
Bluetick, parent companies and Government on request warrants to the
fact this information may be stored on a backend server and deletion of
such information has not been specified.
58. Hence, right to be forgotten has not been upheld in its spirit in
the aforementioned case as the subject has no rights over his data post
affirmation to consent.
ii. Right to Freedom of Expression and Right against Self-
Censorship
59. Freedom of speech and expression involves the right to express
ones opinions without any external interference.77 Any other situation
which causes an individual to restrict oneself from communicating such
opinions is known to have a chilling effect of such freedom, to receive
and disseminate information in the marketplace of ideas.78 When the
most confidential information of one's life are exposed without consent,
freedom to express oneself cannot genuinely be enjoyed.
60. If one is under threat of sanctions by the Government, this
would have a chilling effect on public discourse.79 Freedom of
Expression, thus must be protected.80
61. Subjects must therefore be provided with the option of opting-
out of sharing data with the parent company and consequentially the
Government.
C. GENERAL OBLIGATIONS OF A DATA FIDUCIARY.
62. Under the general obligations of a data fiduciary, data collection
must meet the fourfold requirements of demonstration,
distinguishability and transparency, ease of withdrawal and clear
affirmative act.81 (i) Further the data collection must adhere to purpose
limitation.82 (ii)
i. Clear Affirmative Act
63. Under the general obligations of a data fiduciary the controller
should be able to demonstrate that the subject was aware of the further
use of such data in clear plain language and unambiguous terms in the
agreement and assented to such processing. Consent so given should
also have the provision of being withdrawn.
64. In the present case, it is submitted that the updated privacy
policy amounts to implied consent. This defeats the aforementioned
principle of consent.
65. Firstly, the concept of implied consent to further policies proves
that absence of any real affirmative act on behalf of the user. The user
vulnerability and asymmetric power held by Acanti in the social-media
sphere ensure that any agreement of the users to the privacy policy is
in the absence of actual choice.83
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66. Secondly, bundling of such requirements of consent along with

privacy policies of the company containing legal jargon falls short of
distinguishing and demarcating the uses of the data to the users. This
creates an illusion of free consent due to inability of the subjects to sift
through such jargon. It leads to a ‘granularity’, which is invalid as
different activities require specified consent for each.84
67. Thirdly, the ease or provision of withdrawal is absent. According
to the apex court, personal liberty encompasses freedom from
encroachment in private life.85 the users' consent is deemed as
applicable for all terms.
68. Fourthly, the absence of a clear affirmative act. Due to the non-
fulfilment of the above conditions, a consent obtained on such grounds
cannot be a clear and affirmative act as the data restricts right to social
media as a part of right to life.
ii. Purpose limitation can be adhered to by providing for an opt
out consent.
69. As per GDPR, purpose limitation refers to collecting data for
specific purposes and limiting it86 . This means that any further
operation87 . The Hon'ble apex court in the case of Union Of India v.
Shah Goverdhan L. Kabra Teachers said use of data should go no
further than necessary purposes.88 Whether a data holder has complied
with this or not is determined on a case-to-case basis.89
70. In the aforementioned cases, the collection of data by Acanti
should have been limited. If special data needs to be collected, the
option of opting in to such processing or, opting out must be provided.
Contrarily, the policy robs users of their control by sharing the data.
D. OPT OUT OPTION SHOULD HAD BEEN MADE AVAILABLE TO THE USERS
AS NON-PERFORMANCE OF THE SAME FAILS THE ‘USER CHOICE TEST’
71. The CCI has enunciated that a User Choice Test consists of both
an explicit and implicit element. The explicit element90 involves
explicitly providing the user with an opt out without limiting access to
services and the implicit element91 means the user choice exists insofar
as the user can access original good or service.
72. The terms and conditions of the updated privacy policy runs
counter to the ‘user choice’ test, due to ‘take-it-or-leave-it’ nature of
the updated privacy policy92 , since the terms and conditions of the
updated policy “impose(s) unfair or discriminatory condition(s) in
purchase or sale of goods or service” and the T&C do not contain an opt
out clause, they fall short of explicit user choice93 and since users can't
separate their the data sharing with Bluetick, this violates the implicit
standard of user choice 94
73. While holding forth on its new privacy policy, Bluetick held the
new policy will result in improvement in advertisements and product.
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This data sharing between Acanti and Bluetick results into “degradation
of non-price parameters”, violating of Section 4(2)(a)(i) of the
Competition act and user choice test95
IV. THE TERMS AND CONDITIONS OF THE RECENT UPDATE BY BLUETICK
VIOLATE
THE PROVISIONS OF THE COMPETITION ACT , 2002. A. THE ABOVE CASE
OF DATA PRIVACY CONCERNS INVOLVING SOCIAL MEDIA
INTERMEDIARIES FALLS WITHIN THE PURVIEW OF COMPETITION ACT ,
2002.
74. Competition law aims to protect and maintain and secure the
process of competition, protects consumer welfare and the efficiency of
economy as a whole.96
75. Therefore, any agreements that may have an effect on the
aforementioned activities is regulated by Sections 3 and 4.97 Data is the
backbone of all modern businesses, online or brick-and-mortar98 . The
collection of personal data provides companies with advantages99
through processing personal data is companies hold power and
position.
76. In Harshita Chawla v. Whatsapp, CCI observed cross-linking and
data integration can strengthen the data advantage and reinforce the
market power of dominant firms.’100
77. Hence it is possible to evaluate commercial mergers between
firms that have access to user data from the standpoint of data-backed
market power,101 and resultantly, present case falls within the purview
of competition act.
B. APPRECIABLE ADVERSE EFFECT ON COMPETITION
78. According to S. 3(1) of the competition Act, 2002, ‘any conduct
by parties, persons, association of persons or enterprises which may
have an appreciable adverse effect on competition’ is regulated and
prohibited by the act.
79. Appreciable adverse effect on competition can occur through
various ways. In Hoffmann-La Roche v. Commission ‘Adverse Test’
analysis economic data and concludes the actions of such practices on
the market and on welfare of consumers.102
80. As per Section 19 of The Competition Act, AAECis established by
analysing questions such as conception of barriers to new entrants in
the market; driving accessible competitors out of the market;
foreclosure of competition by hindering entry into the market; accrual
of reimbursement to consumers103
C. ACANTI HAS ENTERED INTO AN ANTI-COMPETITIVE AGREEMENT BY
REFUSING TO DEAL WITH ITS CUSTOMERS IF THEY FAIL TO COMPLY
WITH THE UPDATED TERMS OF THE APP.
81. Anti-competitive agreements harm consumer welfare. As per S.
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4(d), any agreement which restricts or tries to restrict the class of

persons to whom goods are sold, is said to have an appreciable adverse
effect on competition. As per the apex court, both constructive and
outright refusal to deal are prohibited.104
82. In the present case, Acanti's policy of letting restricting
consumers by privacy as elucidated above amounts to refusal to deal
and adversely affects consumer interests s.
D. ACANTI VIOLATES THE TERMS OF COMPETITION ACT BY ABUSING ITS
DOMINANT POSITION IN THE INDIAN MARKET.
83. To be violative of competition act, existence of dominant position
(i) use of such dominant position to adversely affect the market forces
or influence the consumers.105 (ii) have to be established.
i. Acanti enjoys dominant position in the sector of instantaneous
messaging app in India.
84. Dominant position is determined by establishing the relevant
product market(a)relevant geographic market (b) establishing the
existence of a dominant position within these markets(c)
(a) Relevant product market for Acanti is Instant messaging
services or social media intermediary
85. As per Section 19(7), Relevant product market comprises all
those products that are interchangeable.106 This means due to similarity
in the end-use of a product, consumer shifting is difficult.107
86. Acanti's relevant product market is under the category of Instant
messaging apps or social media intermediaries as in the absence of a
non-dominant firm, consumers would easily be able to switch apps.
(b) Relevant Geographic market for Acanti is Union of Kennedy
87. Relevant geographic market constitutes the area where
conditions of competition for a firm involved in production or supply of
goods and services are similar.108
88. The relevant geographic market for Acanti, is Kennedy because
of homogeneity109
(c) Existence of Dominant position in the relevant market
89. According to a ruling by the CCI, existence of dominant position
must be established by considering the supply and demand side
factors.110 Upon assessment of the supply Acanti, enjoys dominant
position in the market. Further, the demand for Acanti is large due to
the lock in effect created.
ii. Acanti uses its dominant position by restricting the supply of
goods to its consumers
90. The CCI, opined that in a data driven ecosystem, the extent of
the data collected and processed, needs to be examined under the
purview of competition.111 In the context of digital markets, this
unreasonable collection and subsequently sharing of data might provide
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an undue competitive advantage resulting. Therefore, the sharing of

data violates Competition Act, 2002 by virtue of Section 3(1).
91. The Competition Act, 2002 takes cognizance of entry and exit
barriers. The updated privacy policy of Acanti results into dominance,
thereby posing ominous barriers to their competitors. The
abovementioned barriers can occur in the form of- network effect (a)
non-price parameters (b)
(a) The gigantic network effect in possession of Acanti
92. The CCI, in a case wherein Whatsapp was similarly placed as
Acanti, opined that the network effects result into a strong lock-in
effect for the user. Despite increment in downloads of rival, the user
base of Whatsapp didn't suffer any major loss.
93. In a journal published by the CCI the competitive advantages of
data were identified. Bluetick, being one of the leading social media
platforms will gain access to a wider database, by acquiring Acanti,”112
(b) Non-price parameters
94. The European Commission in its report113 indicated that data-
sharing arrangements may be anticompetitive in situations wherein
competitors have been allowed access on less favorable terms.
95. Acanti's act of sharing the data of its users can be taken as
reduction in quality under the Competition Act and can have
exclusionary effects on their dominant position.
96. The data collected by Acanti and Bluetick can supplement the
consumer profiling thereby positioning itself so as to track the
behavioral patterns of users, therefore data sharing undermine the
competition by creating barriers to market entry.114
97. Despite encryption, sharing metadata will provide an impetus to
the targeted advertising, resulting into tinkering with the competition,
violating competition law.
98. The new privacy policy unveiled by Acanti runs counters the
above grounds and is anti-competitive.
PRAYER
On the basis of the foregoing facts stated, issues raised, arguments
advanced and authorities cited, the Petitioners most humbly and
respectfully request this Hon'ble Court, while dismissing all contrary
requests and submissions made by the Respondents, to :
1. Allow the Civil Appeal No. 153/2022 along with Writ Petition
(Civil) No. 102/2022 & 172/2022;
2. Hold and strike down the Sections 8, 18, 19 and 22 of the Digital
Personal Data Protection Act, 2022 as ultra vires to the
Constitution of Union of Kennedy;
3. Declare that the Government violated the Fundamental Rights laid
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down in the Constitution of Union of Kennedy by employing the

Unicorn software;
4. Hold that by not allowing users an opt-out available to the users
without having them to let go of their services, Bluetick has
infringed upon the Right to Privacy of its users by obtained
consent under duress and further :
• Award compensation to the parties due to the breach of privacy
suffered by them
• Award the Petitioners the cost of litigation and
5. Declare that the terms and conditions of the recent update by
Bluetick violate the provisions of the Competition Act, 2002.
And further pass any order in favor of the petitioner, as the court may
so deem fit in the ends of equity, justice and good conscience
———
1 Moot Proposition, Para 14.
2
The Draft Digital Personal Data Potection Act, 2022(India).
3 Navtej Singh v. UOI, (2018) 10 SCC 1 : AIR 2018 SC 4321; State of T.N v. V.S.
Balakrishnan, [1994 Supp (3) SCC 204]; Ashok Kumar Kapur v. Ashok Khanna, (2007) 5 SCC
189.
4 Supra, Note 2, Sec. 8.
5
Amber Sinha and Scott Mason, A Critique of Consent in Data Privacy, T HE CENTRE FOR
INTERNET AND SOCIETY , (Jan. 11, 2023, 6 : 42 pm), https://cis-india.org/internet-

governance/blog/a-critique-of-consent-in- information-privacy.
6
Id. at 37.
7 Venugopal Mothkoor and Fatima Mumtaz, The digital dream : Upskilling India for the future,
IDEAS FO R INDIA, (Jan. 23, 2023, 7 : 00 pm)
https://www.ideasforindia.in/topics/governance/the-digital-dream-upskilling-india- for-the-
future.html.
8
Danielle Abril and Drew Harwell, Keystroke Tracking, screenshots and facial recognition :
The boss may be watching long after the pandemic ends, T HE WASHINGTON POST , (Jan. 27,
2023, 7 : 00 a.m), Worker surveillance rises as more companies offer remote work options -
The Washington Post.
9
Siddhaant Verma, The Personal Data Protection Act and the Right to Privacy, INDIAN
CONSTITUTIONAL LAW AND PHILOSOPHY, (Jan. 2, 2023, 8 : 24 am),
https://indconlawphil.wordpress.com/category/privacy/data-protection/.
10 The Draft Digital Personal Data Protection Act, 2022, Sec. 2(18).
11 Supra, note 4.
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12
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
13 Id.
14 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597.
15
Supra, note 4.
16 Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.
17 Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1 : AIR 2008 SC 663
18
General Data Protection Regulation, 2016, § 5(1)(b), No. 2016/679, Acts of Parliament,
2016 (EU).
19 Vasunathan v. Registrar General, 2017 SCC OnLine Kar 424.
20
Supra, note 4.
21
Id. at 52.
22 INDIA CONST. art. 14.
23 G. Sarana v. University of Lucknow, (1976) 3 SCC 585 : AIR 1976 SC 2428.
24
A.K. Kraipak v. Union of India, (1969) 2 SCC 262 : AIR 1970 SC 150.
25 Transmission Corpn. of A.P. Ltd. v. Lanco Kondapalli Power (P) Ltd., (2006) 1 SCC 540.
26 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461.
27
L. Chandra Kumar v. UOI, (1990) 4 SCC 501 : AIR 1990 SC 2263; Indira Gandhi v. Raj
Narain, (1975) 4 SCC 428 : AIR 1975 SC 865.
28
Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591 : AIR 1980 SC 1789, (1981) 1 SCR
206.
29
INDIA CONST . art. 21.
30
Supra, note 26.
31 Universal Declaration of Human Rights, 1948, art. 12.
32
Supra, note 12.
33
Dheerajendra Patanjali, Freedom of Speech and Expression India v. America- A study, 3
India L.J. (2007).
35
Anita Thakur v. State of J&K, (2016) 15 SCC 525.
36
Indian Telegraph Rules, 1951, Acts of Parliament, 1951 (India).
37 IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information)

Rules, 2009, Acts of Parliament, 2009 (India).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
38 Vasudha Luniya, India : DISHA India's Probable Response To The Law on Protection of
Digital Health Data, MONDAQ, (Jan. 27, 2023, 7 : 00 am),
https://www.mondaq.com/india/healthcare/1059266/.
39
The Health Insurance Portability and Accountability Act of 1996, Act of Congress 1996
(US).
40 European Data Protection Directive, Art. 2(a).
41
Supra, note 38.
42
INDIA CONST . art. 19(1)(a).
43 Amit Anand Choudhary, Snooping Can Have Chilling Effect on Press Freedom : SC, T IMES OF
INDIA, (Jan. 28, 2023, 3 : 42 pm IST), https://timesofindia.indiatimes.com/india/snooping-can
-have-chilling-effect-on-press-freedom-sc/articleshow/87320807.cms.
44
Aditi Bansal, Importing the “Chilling Effect” Doctrine in Light of India's Current Legal
Landscape, [2021] 10.2 NULJ 39, 40.
45
Supra, note 16.
46 R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 (India).
48
Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India).
49 Debs v. United States, 249 US 211 (1919).
50 Ajay Goswami v. Union Of India, (2007) 1 SCC 143 : AIR 2007 SC 493.
51
INDIA CONST. art. 19(1)(b).
52 Supra, note 38.
53 E.P. Royappa v. State of Tamil Nadu, (1974) 2 SCR 348.
54 Supra, note 22.
55 Chintaman Rao v. State of M.P, AIR 1951 SC 118.
56 State of Madras v. V.G. Row, (1952) 1 SCC 410 : AIR 1952 SC 196.
57 Supra, Note 51.
58 Supra, note 12.
59 Murray v. Big Pictures (UK) Ltd, (2008) UKHRR 736.
60 Cal.Cov.Code§178.100(b); https://id4d.worldbank.org/guide/data-protection-and-privacy-
laws# : ˜ : text=User%20consent%20and%20control,of%20the%20IDEEA%20Guidance%
20Note).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
61
General Data Protection Regulation, 2016, § 7, No. 2016/679, Acts of Parliament, 2016
(EU).
62 General Data Protection Regulation, 2016, § 8, No. 2016/679, Acts of Parliament, 2016 (E
U).
63 Supra, Note 12.
64 Id.
65 Tarsem Singh v. Sukhminder Singh, (1998) 3 SCC 471.
66
Indian Contract Act, 1872, §16, No. 9, Acts of Parliament, 1872(India).
67
Indian Contract Act, 1872, §16(2), No. 9, Acts of Parliament 1872(India).
68 Henderson v. Stevenson, [L.R.] 2 H.L. 470.
69 Indian Contract Act, 1872, §16(2)(a), No. 9, Acts of Parliament 1872 (India).
70 Boyd v. United States, 440 US 920 (1979).
71
Supra, note 14.
72 https://www.meity.gov.in/writereaddata/files/Explanatory%20Note%20The%20Digital%
20Personal%20Data %20Protection%20Bill%2C%202022.pdf (last visited 31 January 2023).
73 Supra Note 12.
74 General Data Protection Regulation, 2016, § 17, No. 2016/679, Acts of Parliament, 2016
(EU).
75 Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
76
Google Spain SL v. Agencia Española de Protección de Datos 2014 Judgment of the Court
(Grand Chamber Case C-131/12.
77
Human rights act, 1998, Art. 10, Acts of Parliament, 1998 (UK).
78 Lamont v. Postmaster General, 381 US 301 (1965).
79 Ram Jethmalani v. Subramaniam Swamy, 2006 SCC OnLine Del 14.
80 Channa Pieris v. Attorney General, 2018 SCC OnLine SL SC 69.
81 Sanjay Sharma, Data processing and GDPR Handbook 133 WILEY 2019.
82 General Data Protection Regulation, 2016, § 24, No. 2016/679, Acts of Parliament, 2016
(EU).
83
Supra, note 87, 14.
84 Supra note 87, 144.
85 Kharak Singh v. State of UP, (1964) 1 SCR 332.

-----------------------------------------------------------------------------------------------------------------------------------------------------------
86 https://www.privacyshield.gov/servlet/servlet.FileDownload?file=015t00000004qAg (last
visited 29 January 2023.
87 General Data Protection Regulation, 2016, §5, No. 2016/679, Acts of Parliament, 2016 (EU).
88 Union of India v. Shah Goverdhan L. Kabra Teachers college, (2002) 8 SCC 228.
89
https://ec.europa.eu/justice/article-29/documentation/opinion-
recommendation/files/2013/wp203_en.pdf (last visited 29 January 2023).
90
https://www.cci.gov.in/sites/default/files/26%282%29%20Order%20in%20Case%20No.%
2099%20of%20201 6.pdf (last visited 29 January 2023).
91 https://www.cci.gov.in/sites/default/files/15-of-2020.pdf (last visited 29 January 2023).
92
The competition Act, 2002, §4, No. 13, Acts of Parliament, 2003 (India).
93 Supra, note 97.
94 Supra, note 96.
95 https://www.cci.gov.in/antitrust/orders/details/100/0.
96
Vinod Dhall, Competition Law Today : Concepts, Issues and the Law in Practice, Oxford
University press, 2007.
97 The competition Act, 2002, §3 and 4, No. 13, Acts of Parliament, 2003 (India).
98
“Data is considered the new oil,” as coined by Clive Humbly, the British mathematician
(Charles, 2013); Srivastava, A. and Kumar, D. (2022) “Digital Economy, Data and
Dominance : An Indian Perspective”, Competition Commission of India Journal on Competition
Law and Policy, pp. 97-120. doi : 10.54425/ccijoclp.v2.43.
99
Supra, note 81.
100 Harshita Chawla v. Whatsapp, 2020 SCC OnLine CCI 32.
101 Combination Registration No. C-2020/06/747; Combination Registration No. C-

2020/09/775.
102 Hoffmann-La Roche v. Commission, [1979] ECR 461.
103 The Competition Act, 2002, §19, No. 13, Acts of Parliament, 2003 (India).
104 Star India Pvt. Ltd v. Noida Software technology park, 2016 SCC OnLine Del 427.
105
The Competition Act, 2002, §4, No. 13, Acts of Parliament, 2003 (India).
106
Supra, note 111 §19(7).
107 Id.
108 The competition Act, 2002, §2(s), No. 13, Acts of Parliament, 2003 (India).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
109
Vinod Kumar Gupta v. Whatsapp Inc., 2017 SCC OnLine CCI 32.
110 Atos Worldline v. Verifone India, 2020 SCC OnLine NCLAT 343.
111 https://www.cci.gov.in/antitrust/orders/details/100/0 (last visited 23 January 2023).
112
“Report of the Competition Law Review Committee” (Ministry of Corporate Affairs,
Government of India, July 2019),
http://www.mca.gov.in/Ministry/pdf/ReportCLRC_14082019.pdf (last visited 29 January
2023).
113 European Commission, Directorate-General for Competition, Montjoye, Y., Schweitzer, H.,
Crémer, J. (2019) Competition policy for the digital era. Publications. Office.
https://data.europa.eu/doi/10.2763/407537 (last visited 29 January 2023)
114 The competition Act, 2002, §4(2)(c), No. 13, Acts of Parliament, 2003 (India).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/
regulation/ circular/ notification is being circulated on the condition and understanding that the publisher would not be
liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or advice
rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All
disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The authenticity of
this text must be verified from the original source.

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SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Wednesday, March 13, 2024

13th SLCU National Moot, 2023

violate fundamental rights

D. Acanti violates the terms of competition 16

Rules, 2009, Acts of Parliament, 2009 (India

Open Edition Journals, (2016)

Sanjay Sharma, Data processing and GDPR 15, 16

Court of Union of Kennedy has the jurisdiction to hear the present

prescribed under Section 26 of the Competition Act, 2002 due to

it was not responsible for this breach.

watchdog role. Therefore, it can be concluded that the

purpose limitation and user choice test

the principle of purpose limitation, which say that is not followed in

judgments such as Anuradha Bhasin v. Union of India, contains three

act free from bias.24

Privacy constitutes an imperative aspect as stated in K.S Puttaswamy v.

This was a violation of their responsibility under DISHA regulation. This

speech and expression.

66. Secondly, bundling of such requirements of consent along with

4(d), any agreement which restricts or tries to restrict the class of

an undue competitive advantage resulting. Therefore, the sharing of

down in the Constitution of Union of Kennedy by employing the

4 Supra, Note 2, Sec. 8.

INTERNET AND SOCIETY , (Jan. 11, 2023, 6 : 42 pm), https://cis-india.org/internet-

16 Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.

19 Vasunathan v. Registrar General, 2017 SCC OnLine Kar 424.

22 INDIA CONST. art. 14.

23 G. Sarana v. University of Lucknow, (1976) 3 SCC 585 : AIR 1976 SC 2428.

31 Universal Declaration of Human Rights, 1948, art. 12.

34 Moot Proposition, Para 15.

37 IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information)

40 European Data Protection Directive, Art. 2(a).

46 R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 (India).

47 Moot Proposition, Para 12.

49 Debs v. United States, 249 US 211 (1919).

52 Supra, note 38.

53 E.P. Royappa v. State of Tamil Nadu, (1974) 2 SCR 348.

54 Supra, note 22.

55 Chintaman Rao v. State of M.P, AIR 1951 SC 118.

57 Supra, Note 51.

58 Supra, note 12.

59 Murray v. Big Pictures (UK) Ltd, (2008) UKHRR 736.

63 Supra, Note 12.

65 Tarsem Singh v. Sukhminder Singh, (1998) 3 SCC 471.

68 Henderson v. Stevenson, [L.R.] 2 H.L. 470.

70 Boyd v. United States, 440 US 920 (1979).

73 Supra Note 12.

75 Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

78 Lamont v. Postmaster General, 381 US 301 (1965).

79 Ram Jethmalani v. Subramaniam Swamy, 2006 SCC OnLine Del 14.

80 Channa Pieris v. Attorney General, 2018 SCC OnLine SL SC 69.

84 Supra note 87, 144.

85 Kharak Singh v. State of UP, (1964) 1 SCR 332.

91 https://www.cci.gov.in/sites/default/files/15-of-2020.pdf (last visited 29 January 2023).

93 Supra, note 97.

94 Supra, note 96.