CASES FOR RESPONDENTS SIDE:

-Maneka Gandhi v UOI:

“although privacy has been elevated to the status of a fundamental right, it has not be treated as

absolute. However, any restrictions placed on the right ought to conform to the procedure

established by law.”

-Romesh Thappar v. State of Madras:

“the expression 'security of the state’ does not refer to ordinary breaches of public order which do not
involve any danger to the State itself. If the government is satisfied for reasons to be recorded in
writing, by order, direct any agency of the appropriate government to intercept, monitor or decrypt or
cause to be intercepted, monitored or decrypted any information generated, transmitted, received or
stored in any computer resource.”

-PUCL v UOI:

"Orders for telephone tapping must only be issued by the home secretary of the central or

state government. In an emergency, this power may be delegated to an officer of the home

department of the central or state government, and a copy of the order must be sent to the

concerned review committee within one week. The authority making the order must consider

whether the information considered necessary to acquire can be reasonably acquired by

other means. Review committees shall be constituted consisting of secretary-level officers at

both central and state levels. They may evaluate whether an interception order has been

passed in compliance with the law, and if it has not, they may set it aside and direct

destruction of any copies of intercepted communications."

“We have, therefore, no hesitation in holding that right to privacy is a part of the right of life and

personal liberty enshrined under Article 21 of the Constitution…the said right cannot be curtailed

except according to procedure established by law.”

-talish ray v ministry of home affairs( regarding decryption and rti related to it which was rejected):

its a supreme court order .....mailed it to you....

-shreya singhal v uoi:

Police arrested two women for posting allegedly offensive and objectionable comments on Facebook
about the propriety of shutting down the city of Mumbai after the death of a political leader. The police
made the arrests under Section 66A of the Information Technology Act of 2000 (ITA), which punishes
any person who sends through a computer resource or communication device any information that is
grossly offensive, or with the knowledge of its falsity, the information is transmitted for the purpose of
causing annoyance, inconvenience, danger, insult, injury, hatred, or ill will.

Although the police later released the women and dismissed their prosecution, the incident invoked
substantial media attention and criticism. The women then filed a petition, challenging the
constitutional validity of Section 66A on the ground that it violates the right to freedom of expression.

The Supreme Court of India initially issued an interim measure in Singhal v. Union of India, (2013) 12
S.C.C. 73, prohibiting any arrest pursuant to Section 66A unless such arrest is approved by senior police
officers. In the case in hand, the Court addressed the constitutionality of the provision.

The Supreme Court of India invalidated Section 66A of the Information Technology Act of 2000 in its
entirety. The Court held that the prohibition against the dissemination of information by means of a
computer resource or a communication device intended to cause annoyance, inconvenience or insult
did not fall within any reasonable exceptions to the exercise of the right to freedom of expression.

-sabu mathew v uoi(imp from intermediaries point of view)(imp for both sides):

This is a 2008 case where a writ petition was filed to ban ‘advertisements’ relating to pre-natal sex
determination from search engines in India. Section 22 of the Preconception and Prenatal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994 is the operative provision. In this case, the 'doctrine
of auto-block' was an important consideration. In its judgment dated 13th December, 2017, the Court
had listed roughly 40 search terms, imposing the aforementioned standard on the respondents, stating
that any attempt at looking up the banned search terms would be ‘auto-blocked’. This ruling raised
concerns about intermediary liability and free speech. The 'doctrine of auto-block' could block legitimate
information relating to reproductive rights and sexual health. To ensure compliance, the Court had also
ordered (on November 16th, 2016) the creation of a nodal agency that would provide search engines
with details of websites to be blocked. This nodal agency has come under criticism since it does not
prescribe a review mechanism and circumvents the system of review instated by Section 69A of the IT
Act. The judgment, passed on the 13th of December, 2017, ordered the parties involved to convene a
meeting, along with the aforementioned nodal agency and a previously instituted expert committee to
discuss the best possible technical solutions within 6 weeks.

-karmanaya sareen v uoi(whatsapp and facebook):

When Whatsapp was launched in 2010, it did not allow sharing of the Users’ data with any other
party. In 2014, Whatsapp was bought by Facebook for $19 billion. It maintained that its privacy
policy would remain unchanged.

However, in 2016, Whatsapp announced a change in its privacy policy.

The Petitioners, Karmanya Singh and Shreya Sethi, two Whatsapp Users, claim that the new
policy seeks to collect all information relating to every WhatsApp account, such as phone
numbers, names, messages, device information, as well as third-party information, which would
be used to support operations, analyse user profiles and actions, and market their services. The
new Privacy Policy claims worldwide Intellectual Property Rights to user-generated data
including uploads, messages etc. which are sent, stored or received through WhatsApp.

The Petitioners further claim that the Policy is so pervasive that even if users delete WhatsApp,
the past information could still be retained for an undefined period, unless the users consciously
delete the entire account.

The Petitioners found this change violative of their privacy filed a Public Interest Litigation
before the Delhi High Court in 2016. On 23rd September 2016, the Delhi High Court rejected the
petition, but directed Whatsapp to delete the data collected till 25th September from its servers.
However, the information exchanged on Whatsapp after 25th September was allowed to be
shared under the new policy. It also directed the Union of India and regulatory authorities such
as Telecom Regulatory Authority of India to consider bringing applications such as Whatsapp
under a regulatory framework. The petitioners were not satisfied with the relief given by the
Delhi HC, and have filed this Special Leave Petition in the Supreme Court.

-ks puttuswamy v uoi(guidelines using IT...important for respondents)

A nine-judge bench of the Supreme Court of India held unanimously that the right to privacy was
a constitutionally protected right in India, as well as being incidental to other freedoms
guaranteed by the Indian Constitution. The case, brought by retired High Court Judge
Puttaswamy, challenged the Government’s proposed scheme for a uniform biometrics-based
identity card which would be mandatory for access to government services and benefits. The
Government argued that the Constitution did not grant specific protection for the right to privacy.
The Court reasoned that privacy is an incident of fundamental freedom or liberty guaranteed
under Article 21 which provides that: “No person shall be deprived of his life or personal liberty
except according to procedure established by law”. This is a landmark case which is likely to
lead to constitutional challenges to a wide range of Indian legislation, for example legislation
criminalising same-sex relationships as well as bans on beef and alcohol consumption in many
Indian States. Observers also expect the Indian Government to establish a data protection regime
to protect the privacy of the individual. Further, the case is likely to be of wider significance as
privacy campaigners use it to pursue the constitutional debate over privacy in other countries.

The case was brought by 91-year old retired High Court Judge Puttaswamy against the Union of
India (the Government of India) before a nine-judge bench of the Supreme Court which had been
set up on reference from the Constitution Bench to determine whether the right to privacy was
guaranteed as an independent fundamental right following conflicting decisions from other
Supreme Court benches.

The latest case had concerned a challenge to the government’s Aadhaar scheme (a form of
uniform biometrics-based identity card) which the government proposed making mandatory for
access to government services and benefits. The challenge was made before a three-judge bench
of the Supreme Court on the basis that the scheme violated the right to privacy. However, the
Attorney General argued on behalf of the Union of India that the Indian Constitution does not
grant specific protection for the right to privacy. He based this on observations made in the case
of M.P. Sharma v. Satish Chandra (an eight-judge bench) and Kharak Singh v. Uttar Pradesh (a
five-judge bench). However, a subsequent eleven-judge bench found that fundamental rights
were not to be construed as distinct, unrelated rights, thereby upholding the dissenting view in
Kharak Singh. This also formed the basis of later decisions by smaller benches of the Supreme
Court which expressly recognized the right to privacy.

It was in this context that a Constitution Bench was set up and concluded that there was a need
for a nine-judge bench to determine whether there was a fundamental right to privacy within the
Constitution.

The Petitioner argued before the nine-judge bench that this right was an independent right,
guaranteed by the right to life with dignity under Article 21 of the Constitution. The Respondent
submitted that the Constitution only recognized personal liberties which may incorporate the
right to privacy to a limited extent. The Court considered detailed arguments on the nature of
fundamental rights, constitutional interpretation and the theoretical and philosophical bases for
the right to privacy as well as the nature of this right.

The nine-judge bench of the Supreme Court unanimously recognized that the Constitution
guaranteed the right to privacy as an intrinsic part of the right to life and personal liberty under
Article 21. The Court overruled M.P. Sharma, and Kharak Singh in so far as the latter did not
expressly recognize the right to privacy.
The right to privacy was reinforced by the concurring opinions of the judges in this case which
recognized that this right includes autonomy over personal decisions (e.g. consumption of beef),
bodily integrity (e.g. reproductive rights) as well as the protection of personal information (e.g.
privacy of health records). The concurring judgments included specific implications of this right,
some of which are illustrated below:

J. Chandrachud (on behalf of himself, C.J. Kehar, J. Agrawal and J. Nazeer): this opinion stated
that privacy was not surrendered entirely when an individual is in the public sphere. Further, it
found that the right to privacy included the negative right against State interference, as in the
case of criminalization of homosexuality, as well as the positive right to be protected by the
State. On this basis, the Judges held that there was a need to introduce a data protection regime in
India.

J. Chelameswar: in his opinion, the Judge said that the right to privacy implied a right to refuse
medical treatment, a right against forced feeding, the right to consume beef and the right to
display symbols of religion in one’s personal appearance etc.

J. Bobde: the Judge observed that consent was essential for distribution of inherently personal
data such as health records.

J. Nariman: in this concurring opinion, the Judge classified the facets of privacy into non-
interference with the individual body, protection of personal information and autonomy over
personal choices.

J. Sapre: the Judge said that, in addition to its existence as an independent right, the right to
privacy included an individual’s rights to freedom of expression and movement and was
essential to satisfy the constitutional aims of liberty and fraternity which ensured the dignity of
the individual.

-Sharat Babu Digumarti v Govt. of NCT of Delhi:

Whether IT Act, 2000 will override the provisions of IPC, 1860 when the accused is charged
for a similar offence under both the Acts or not?

The Court observed that sections 67, 67A and 67B clearly stipulate the punishment for
publishing, transmitting obscene material in electronic forms. Sec 292 of IPC also prohibits the
selling of obscene books. In the event that both offences are similar, the court held that the law
having an overriding effect will prevail.

The Court placed on record several cases involving overriding effects of provisions. The Court
placed on record Sarwan Singh and Anr. V Kasturi Lal, when two or more laws operate in the
same field and each contains a non-obstante Clause stating that its provisions will override those
of any other law, where stimulating and incisive problems of interpretation arise. Since statutory
interpretation has no conventional protocol, cases of such conflict have to be decided in
reference to the object and purpose of the laws under consideration. In Solidaire India Pvt. Ltd v.
Fairgrowth Financial Services, the principle laid down was that where there are two special
statutes which contain non obstante clauses the later statute must prevail. This is because at the
time of enactment of the later statute, the Legislature was aware of the earlier legislation and its
non obstante clause. If the Legislature still confers the later enactment with a non obstante
Clause it means that the Legislature wanted that enactment to prevail.

The Court stated that the IT Act, 2000 is a special enactment with special provisions. Once the
special provisions having the overriding effect do cover a criminal act and the offender, he gets
out of the net of the Indian Penal Code and in this case, Section 292. The Court also said that it is
settled position in law that a special law shall prevail over the general and prior laws. When the
Act in various provisions deals with obscenity in electronic form, it covers the offence Under
Section 292 Indian Penal Code. The apex court concluded by saying that the High Court’s order
was erroneous when Sec 67 of IT Act and was replaced to prosecute under sec. 292 of IPC

-sneha kalita v UOI:

Three-Judge Bench of the Supreme Court headed by the Chief Justice in the case of Sneha Kalita
v. Union of India have issued direction to the Chief Secretaries of the States and the Union
Territories through their concerned departments to spread awareness in the schools run by the
State, about the danger such games propagate by bringing people into a trap. The Supreme Court
has stated that the the children must grow up with an awareness that such a thing exists and they
shall scrupulously avoid it.

The Court in the case has remarked that such awareness campaign need not be about the game,
but about the dignity of life and not to waste it and not to fall in anyone’s trap.

Here it would be relevant to mention that in wake of augmented instances of suicide due to Blue
Whale Game, the Ministry of Electronics and Information and Technology (MEITY) has issued
an Advisory on Blue Whale Challenge Game, wherein the Ministry had termed the game as “The
suicide game”. In the advisory, the Centre stated that the game is an abetment to suicide whereby
the creators of seek out their players who are in depression and send them an invitation to join.
The basis of the challenge is that an anonymous “group administrator,” otherwise known as “the
curator,” hands out 50 tasks to selected “players” that must be completed, documented and
posted during a 50-day period.

A PIL (Public Interest Litigation) had also been filed with the Supreme Court in October which
sought for a total ban on the Blue Whale Game and the Petitioner had also alleged that inspite of
almost 200 deaths in the country on account of playing the creepy game, the Government had not
yet taken any sufficient steps to curb this tragedy.

-manoj oswal v sate of maharashtra(why section 66 a has been struck down):

Mr. Oswal had accused Prataprao Pawar (younger brother of NCP chief Sharad Pawar), the
Chairman of the Sakal group of newspapers, of illicitly grabbing land on which an animal shelter
stood.He was arrested by the cyber crime cell of the city police on November 25, 2011, and
charged under Sections 500 of the Indian Penal Code (Defamation) and Section 66A of the IT
Act.After he was released on bail, Mr. Oswal fought long battles against the ‘draconian’ section,
contending before five Benches of the Bombay High Court and two Benches of the Supreme
Court that Section 66 A was ultra vires of the Constitution.

Mr. Oswal and his lawyers had argued that no further arrests be made or cases filed against those
who disclose information in the public domain under 66 A.

-aneeta hada v godfather travels and tours:

Avnish Bajaj, the Managing Director of the company, quashed the

charges under Sections 292 and 294 of the Indian Penal Code

and directed the offences under Section 67 read with Section 85

of the 2000 Act to continue.

“85. Offences by companies - (1) Where a person committing a contravention of any of the provisions of
this Act or of any rule, direction or order made thereunder is a company, every person who, at the time
the contravention was committed, was in charge of, and was responsible to, the company for the
conduct of business of the company as well as the company, shall be guilty of the contravention and
shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this
subsection shall render any such person liable to punishment if he proves that the contravention took
place without his knowledge or that he exercised all due diligence to prevent such contravention.

(2) Notwithstanding anything contained in subsection (1), where a contravention of any of the
provisions of this Act or of any rule, direction or order made thereunder has been committed by a
company and it is proved that the contravention has taken place with the consent or connivance of, or is
attributable to any neglect on the part of, any director, manager, secretary or other officer of the
company, such director, manager, secretary or other officer shall also be deemed to be guilty of the
contravention and shall be liable to be proceeded against and punished accordingly.”

Keeping in view the anatomy of the aforesaid provision, our

analysis pertaining to Section 141 of the Act would squarely

apply to the 2000 enactment. Thus adjudged, the director could

not have been held liable for the offence under Section 85 of the

2000 Act.