Memorial Petitioner

TEAM CODE: BR 07
8
th
Annual NALSAR- Justice B.R. Sawhny Memorial Moot Court Competition, 2014

IN THE HONBLE SUPREME COURT OF INDIA
TO THE HONBLE CHIEF JUSTICE AND HIS COMPANION OF JUDGES
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
WRIT JURISDICTION
PETITION No. _____of 2014
I n the matter of:-

FlixTime and Anr..PETITIONER

Versus

WindTelRESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER
8
th
Annual NALSAR Justice B.R. Sawhny Memorial Moot Court Competition, 2014
Page | I
TABLE OF CONTENTS

Table Of Contents .................................................................................................................... I
Index Of Authorities .............................................................................................................. III
Cases ............................................................................................................................ III
Statutes ......................................................................................................................... IV
Rules ............................................................................................................................. V
Books ............................................................................................................................ V
Journals ......................................................................................................................... V
Articles .......................................................................................................................... V
Statement Of Jurisdiction ................................................................................................... VII
Statement Of Facts .............................................................................................................. VIII
Issues Raised ............................................................................................................................ X
Summary Of Arguments ....................................................................................................... XI
Arguments Advanced .............................................................................................................. 1
Contention 1: The Present Petition Is Maintainable ............................................................ 1
1.1. Petitioners Resorted To State Action Subsequent To Judicial Review ....................... 1
1.2. Central Government Has Exclusive Privilege Over Spectrum ................................... 1
1.3. Spectrum Management In India .................................................................................. 1
1.4. Fundamental rights can be enforced against a company discharging public function 3
1.5. A Company or Corporation can be a Citizen Under Article 19 ............................... 6
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Contention II: The Actions of the Respondent are in Violation of Fundamental Rights of
the Petitioner and Public At Large......................................................................................... 7
2.1. Violaion of Artilce 19 (1) (g) ...................................................................................... 7
2.1.1. Unfair Conduct of the Respondent ...................................................................... 7
2.1.2. Concerted Practice and Cartelization ................................................................... 8
2.1.3. Abuse of Dominant Position by Windtel ............................................................. 9
2.1.4. Unfair Condition in Provision of Services ........................................................... 9
2.1.5. Limiting or Restricting the Provision of Services................................................ 9
2.2. Violation of Article 19 (1) (a) and Article 14 ........................................................... 10
2.2.1. Violation of Freedom of Speech and Expression .............................................. 10
2.2.2. Infringement of the Right to Equality ................................................................ 12
Contention III: The Respondents Act of Sharing Internet Activity of the Petitioner with
Third Party is Illegal and Violation of Right to Privacy .................................................... 14
3.1. Violation of Right to Privacy .................................................................................... 14
3.2. Contravention of Information Technology Act, 2000 ............................................... 16
3.2.1. Duty to Preserve and Retain Information and to Implement and Maintain
Reasonable Security Practices and Procedures ................................................................ 16
3.2.2. Disclosure of Information .................................................................................. 18
3.2.3. Unauthorized Interception ................................................................................. 19
PRAYER .............................................................................................................................. XIII

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INDEX OF AUTHORITIES
CASES
Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722 ............................................................ 5, 12, 13
Amit D. Patwardhan v. Bank of Baroda, Complaint No. 15 of 2013, before the adjudicating
officer Sh. Rajesh Aggarwal, Secretary, (Information Technology), Government of
Maharashtra. Decided on 30.12.2013. ..................................................................................... 17
Amit D. Patwardhan v. Rud India Chains, Complaint No. 1 of 2013, before the adjudicating
officer Sh. Rajesh Aggarwal, Secretary, (Information Technology), Government of
Maharashtra. Decided on 15.4.2013. ....................................................................................... 17
Assn. of Unified Tele Services Providers v. Union of India, (2014) 6 SCC 110. ............ 1, 3, 13
Bennett Coleman and Co. v. Union of India, AIR 1973 SC 106. .............................................. 6
Bennett Coleman v. Union of India, AIR 1973 SC 106 ........................................................... 10
Chain Singh v. Mata Vaishno Devi Shrine Board, (2004) 12 SCC 634 .................................... 5
Copperweld Corp. et al v. Independence Tube Corp. 467 US 752. ........................................... 8
D.C. & G.M. v. Union of India, AIR 1983 SC 937.................................................................... 6
District Registrar and Collector v.Canara Bank, (2005) 1 SCC 496. ..................................... 17
Elkapalli Latchaiah v. Govt. of Andhra Pradesh, 2001 (5) A.L.D. 679 .................................. 15
Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148. ........................................................ 14
Khushwant Singh v. Maneka Gandhi, A.I.R. 2002 Del. 58 ..................................................... 15
LIC v. Manubhai D. Shah, (1992) 3 SCC 637 ......................................................................... 10
Lowell v. Griffin, (1939) 303 US 444. .................................................................................... 10
M.C. Mehta v. Union of India, (1987) 1 SCC 395. .................................................................... 5
Ms X v. Mr Z, AIR 2002 Delhi 217.......................................................................................... 14
Natural Resources Allocation, in Re: Special Reference, (2012) 10 SCC 1. .......................... 12
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Nirmalkumar Bagherwal v. Minal Bagherwal, Common Judgment in Complaint Numbers 08,
09, 10 of 2013, before the adjudicating officer Sh. Rajesh Aggarwal, Secretary, (Information
Technology), Government of Maharashtra. Decided on 26.08.2013. ..................................... 18
Peoples Union for Civil Liberties v. Union of India, AIR 1997 SC 568. ............................... 15
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 ............... 4
R. Rajagopal v. State of T.N., (1994) SCC 632. ...................................................................... 15
Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331. ...................................................... 5
RC Cooper v. UOI, AIR 1970 SC 564. ...................................................................................... 6
Reliance Natural Resources Limited v. Reliance Industries Limited, (2010) 7 SCC 1. ............ 3
Sakal Papers v. Union of India; AIR 1962 SC 305 ................................................................ 10
Secy., Ministry of Information and Broadcasting, Govt. of India v. Cricket Assn. of Bengal,
(1995) 2 SCC 161. ................................................................................................................... 13
Sharda v. Dharampal, (2003) 4 SCC 493................................................................................ 14
Tamil Nadu Tamil & English Schools Association v. State of Tamil Nadu, 2000 (2) C.T.C.
344............................................................................................................................................ 15
Union of India v. Hindustan Development Corporation, [1993] 3 SCC 499. ........................... 8
Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649 ........................................................... 5
STATUTES
The Competition Act, 2002........................................................................................................ 9
The Indian Constitution, 1949. .................................................................................................. 4
Information and Technology Act, 2000. .................................................................................. 16
Internet Non-Discrimination Act of 2006 ................................................................................ 12
The Indian Wireless Telegraphy Act, 1933 ............................................................................... 2
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RULES
Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption of Information) Rules, 2009. ................................................................................. 18
Information Technology (Reasonable security practices and procedures and sensitive
personal data or information) Rules, 2011. .............................................................................. 18
License Agreement for provision of Unified Access Services, (2008) ..................................... 2
BOOKS
D.P. Mittal, Competition Law, (2003). ...................................................................................... 8
Durga Das Basu, Commentary On The Constitution Of India, (8d ed. 2008). ........................ 10
J.N. Pandey, The Constitutional Law of India, (50h ed. 2013) ................................................. 6
Vakul Sharma, Information Technology Law & Practice, (3
rd
ed. 2011)............................. 16
JOURNALS
Apar Gupta, The Law of Online Privacy in India, (2011) PL April S-3. ................................. 15
Apoorva Anubhuti and Rashmi Bothra, The Contemporary Commons Theory: A Debate in
Modern Telecommunication Law, (2008) 1 NUJS L Rev 273. ............................................... 13
Dr. Shiv Shankar Singh, Privacy and Data Protection in India, (2012) PL February S-2. .... 17
ARTICLES
Alexis Ohanian and Roy Singham, Net Neutrality, Monopoly, and the Death of the
Democratic Internet, (May 8, 2014), available at http://motherboard.vice.com/read/net-
neutrality-monopoly-and-the-death-of-the-democratic-internet?trk_source=homepage-lede. 11
Cyber Cafe in Gandhinagar, India, available at
http://www.worldembassyinformation.com/india-cyber-cafe/cyber-cafe-in- gandhinagar.html
(July 5, 2010). .......................................................................................................................... 15
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Gupta, Rajeev and Rajvanshi, Gargi, The Eroding Scenerio of State and the Claim of
Fundamental Rights: A Critique (July 16, 2011), available
at http://ssrn.com/abstract=1887025. ......................................................................................... 4
Licensing of Internet services, available at http://www.dot.gov.in/data-services/internet-
services. ...................................................................................................................................... 2
Net Neutrality What you need to know, available at http://www.savetheinternet.com/net-
neutrality-what-you-need-know-now. ..................................................................................... 11
Net Neutrality, available at http://www.savetheinternet.com/net-neutrality ........................... 11
Open Internet, available at http://www.fcc.gov/openinternet ................................................. 11
Vikram Raghavan, Communications Law in India: Legal A Spects of Telecom, Broadcasting
and Cable Services (2007). ........................................................................................................ 2

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STATEMENT OF JURISDICTION

The Petitioner has humbly approached the Honble Supreme Court under Article 32 of the
Constitution of India, which pertains to the writ jurisdiction. The present memorandum
contains the Facts, Contentions and Arguments of the present case.

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STATEMENT OF FACTS
[ 1.] Mr. Manu Sharma, considered as a pioneer in the Indian start up ecosystem has built
his TV show and Movie streaming service, FlixTime, a company which requires users to
pay 500 rupees a month, and in exchange they can stream any TV show or Movie from its
extensive catalogue.
[ 2.] Companies like FlixTime and YouTube are the most popular of the new breed of
streaming services, which fulfil the infotainment needs of their subscribers and the traditional
DTH companies are losing money due to proliferation of such on-demand services. One such
company is WindTel, whose revenue from its DTH and ISP services have been affected
tremendously.
[ 3.] In July 2014, WindTels internet subscribers started noticing deterioration in the, once
renowned, streaming quality of FlixTime. The service would keep on buffering every few
minutes and this would happen even to the users who had WindTels special Wind Speed 16
MBPS plans as well. Manu Sharma called for immediate proceedings against WindTel in
hope that the regulators would take a strict action but unfortunately that did not happen.
[ 4.]One week later WindTels ISP division announced a major overhaul in the way its
Internet Plans worked. Instead of charging a fixed sum of money for the guaranteed
minimum speed, WindTel would now have tiered data plans that came with the fixed data
allowance, post which the speed would fall to 256 kbps. Despite these sweeping changes,
WindTels Q2 2014 results did not paint a different picture.
[ 5.]On August 12, 2014, Mr. Kaushal, CEO of WindTel, admitted at the press conference
that WindTel had been responsible for the poor streaming of FlixTime services. Kaushal
stated that almost 55% of the data being transmitted on WindTels network was from
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FlixTime and he even called the company to pay them interconnection charges. He stated
that WindTel was free to do what it chose because there is no Net Neutrality law in India.
[ 6.]On August 19, 2014 FlixTime filed a petition in the present court alleging that
WindTels actions in deliberately slowing FlixTime streaming were illegal and prayed for
directions to the respondents that such policies are immediately terminated.
[ 7.]Four days later, Manu Sharma received summons in a complaint case filed by the
WindTels sister company Wind Entertainment that Sharma has downloaded pirated songs
of their upcoming movie Sugar Rush on August 19, 2014 using WindTels broadband
connection installed at his home.
[ 8.]On August 25, 2010 Sharmas attorneys filed a motion to modify their original petition
to include a claim for a declaratory relief that WindTels sharing of a subscribers history
with a third party, is illegal. The Supreme Court allowed this application, and hence the
present petition.

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ISSUES RAISED

ISSUE I: WHETHER THE PRESENT PETITION IS MAINTAINABLE OR NOT.
ISSUE II: WHETHER THE ACTIONS OF THE RESPONDENT ARE IN VIOLATION OF
FUNDAMENTAL RIGHTS OF THE PETITIONER AND THE PUBLIC AT LARGE OR NOT.
ISSUE III: WHETHER SHARING OF PETITIONERS INTERNET ACTIVITY WITH A THIRD
PARTY IS VIOLATION OF RIGHT TO PRIVACY OR NOT.

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SUMMARY OF ARGUMENTS

CONTENTION I: THE PRESENT PETITION IS MAINTAINABLE
It is most respectfully submitted that spectrum management in India is the exclusive privilege
of central government and its instrumentalities and hence fundamental rights can be enforced
against a company like WindTel which is discharging such a public function. Furthermore, a
company can be treated as a citizen in order to enforce its fundamental rights as the rights
or a company and its shareholders are co-extensive and the denial to one of the fundamental
freedoms would be denial to the other.
CONTENTION II: THE ACTIONS OF THE RESPONDENT ARE IN VIOLATION OF FUNDAMENTAL
RIGHTS OF THE PETITIONER AND THE PUBLIC AT LARGE.
It is most respectfully submitted that WindTel had deliberately interfered with the connection
quality and streaming service of FlixTime and hence violated their rights under Article 19 (1)
(g). Internet today has emerged as a platform where people exchange their views and
information and restricting or prohibiting the same is in violation of freedom of speech and
expression under Article 19 (1) (a). Furthermore, the actions of respondent are in violation of
Article 14 as they have acted arbitrarily in curtailing the services of petitioner and the same
constitutes discrimination against the petitioners herein.
CONTENTION III: THE CONDUCT OF SHARING PETITIONERS INTERNET ACTIVITY WITH A
THIRD PARTY IS ILLEGAL AND VIOLATION OF RIGHT TO PRIVACY
It is most humbly submitted that sharing of Manu Sharmas web history by WindTel with a
third party is illegal and in violation of his right of privacy under Article 21 of the
Constitution. The respondent in its capacity of being an intermediary has failed to preserve
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and retain the data of its subscriber and was negligent in implementing and maintaining
reasonable security practices and procedures which they must have complied with.
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ARGUMENTS ADVANCED
CONTENTION 1: THE PRESENT PETITION IS MAINTAINABLE
1.1. PETITIONERS RESORTED TO STATE ACTION SUBSEQUENT TO JUDICIAL REVIEW
[ 1.] In India, whenever there is an infringement of a fundamental right, an individual has a
legal right to resort to state action subsequent to the judicial review. In the present matter
before us, when WindTels actions were in not in consonance with the UAS agreement,
TRAI guidelines, IT act and the anti-trust laws, FlixTime CEO, Manu Sharma called for
immediate proceedings against the WindTel and hoped that the regulators would take strict
action against the same.
1
But that did not happen as WindTel categorically denied they were
sabotaging the connection quality while claiming that their DTH service was very healthy.
Hence, the petitioners have approached the Honble court under Article 32 of the Constitution
of India.
1.2. CENTRAL GOVERNMENT HAS EXCLUSIVE PRIVILEGE OVER SPECTRUM
[ 2.] 4 of the Indian Telegraph Act, 1885, highlights the fact that the Central Government
enjoys an exclusive privilege so far as spectrum is concerned, which is a scarce, finite and
renewable natural resource which has got intrinsic utility to mankind. Spectrum is a natural
resource which belongs to people, the State, its instrumentalities and the licensee, as the case
may be, who deal with the same, hold it on behalf of the people and are accountable to the
people.
2

1.3. SPECTRUM MANAGEMENT IN INDIA
[ 3.] In India, the Wireless Planning and Coordination Wing (WPC wing) of the Department
of Telecommunications (DoT) is responsible for the assignment and allocation decisions

1
Moot proposition, 3.
2
Assn. of Unified Tele Services Providers v. Union of India, (2014) 6 SCC 110.
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concerning the Spectrum.
3
This power flows from the government's exclusive privilege
under the Indian Telegraph Act, 1985 to establish, maintain and work telegraphs.
4
In addition
to making spectrum allocation and assignment decisions, the WPC Wing is responsible for
issuing operating licences
5
under the Indian Wireless Telegraphy Act, 1933 for various types
of telecom and broadcasting services.
6

[ 4.] The authorization for provision of Internet Services is granted under Unified License
Agreement which contains the terms and condition which are imposed on Internet Service
Providers.
7
The terms and conditions of agreement stipulate in Part I that management control
of the Licensee Company shall remain in Indian Hands and a FDI shall remain limited.
8

Further, the licensor holds the power to extend the license
9
, modify the terms and conditions
of the license
10
and may impose restrictions on the transfer of license
11
. The licensee shall
also furnish to the licensor/TRAI any information in accordance with the rules/orders as may
be prescribed from time to time.
12
Moreover, the licensor reserves the right of suspension,
revocation or termination of license.
13

[ 5.] Part III of the agreement contains the financial conditions and the license fees payable
annually at Adjusted Gross Revenue excluding spectrum charges by the licensee to the
licensor. The spectrum charges are payable to the WPC wing at 2% Adjusted Gross Revenue

3
Licensing of Internet services, available at http://www.dot.gov.in/data-services/internet-services, (last
accessed on 09.09.2014).
4
The Indian Wireless Telegraphy Act, 1933 4 cl. 1.
5
Id. 5.
6
Vikram Raghavan, Communications Law in India: Legal A Spects of Telecom, Broadcasting and Cable
Services (2007).
7
Supra Note 3.
8
License Agreement for provision of Unified Access Services, (2008) cl. 1.
9
Id. cl. 4.
10
Id. cl. 5.
11
Id. cl. 6.
12
Id. cl. 9.
13
Id. cl. 10.
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and other additional fees as per the allocated bandwidth. The licensee also has to prepare and
render accounts to the licensor.
14

[ 6.] Part IV of the agreement contains Technical Conditions like under Clause 27 it is
mentioned that the Licensee shall operate and maintain the licensed Network conforming to
Quality of Service. Failure on part of Licensee or his franchisee to adhere to the Quality of
Service stipulations by TRAI and network to network interface standards of TEC may be
treated as breach of Licence terms. Clause 28 mentions of the Quality of Service to be
maintained by licensee as prescribed by licensor or TRAI.
[ 7.] Moreover, UAS license holders have an obligation to use such resources in a manner as
not to impair or diminish the peoples right and long term interest in that property or
resource. In Reliance Natural Resources Limited v. Reliance Industries Limited
15
, the
Honble Supreme Court held that the constitutional mandate is that the natural resources
belong to the people of this country. This Court in several decisions took the view that the
natural resources are vested with the Government as a matter of trust to the people of India
and it is the solemn duty of the State to protect the national interest and natural resources
must always be used in the interest of the country and not in private interest. In short, State is
the legal owner of spectrum as a trustee of the people and even though it is empowered to
distribute the same, the process of distribution must be guided by constitutional provisions,
including the doctrine of equality and larger public good.
16

1.4. FUNDAMENTAL RIGHTS CAN BE ENFORCED AGAINST A COMPANY DISCHARGING PUBLIC
FUNCTION
[ 8.] In this era of Globalization, Free Market and World Economy, a move has been
initiated to encourage privatization in performing several welfare, commercial and other

14
Id. cl. 22.
15
(2010) 7 SCC 1.
16
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activities which were traditionally considered to be the functions of the State as the welfare
State.
17
The Indian market has got captured with numerous MNCs and TNCs and several
other fields like insurance business etc. where the private companies are settling their feet
effectively and efficiently.
18

[ 9.] There is a certain minimum baseline of State functions like ensuring reasonable access
to public utilities, overall maintenance of communications, defense etc. and within that
baseline if a private entity performs a state function then it is assimilated to the State.
19
Even
if Part III
20
isnt directly applicable, certain functions are of a public nature, and attract public
law obligations that are identical in content to fundamental rights obligations under Part III,
although their source is not Part III.
21
Consequently, even private educational institutions are
required to abide by the norms of fairness articulated by Article 14, even though they may
not, as a matter of constitutional law, be held in violation of the Article 14 that is found in the
constitutional text. Therefore, in certain cases, it is possible to subject private entities
performing public functions to constitutional norms without bringing them under Article 12s
definition of the State, and without the need for an enacted statute, or a set of regulations.
22

[ 10.] This complexity in interpreting the term state under article 12 is to be removed for
proper enforcement and utilization of fundamental rights of the people of India.
23

[ 10.] In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology
24
the Supreme
Court by majority ruled that to be an authority, the entity should have been created by or
under a statue and should be functioning with liability or obligations to the public. Moreover,
in the former case the statute creating it, and in the latter case some other statute, should vest

17
Gupta, Rajeev and Rajvanshi, Gargi, The Eroding Scenerio of State and the Claim of Fundamental Rights: A
Critique (July 16, 2011), available at http://ssrn.com/abstract=1887025.
18
Id.
19
Id.
20
Indian Consti. 1949.
21
Supra Note 17.
22
Id.
23
Id.
24
(2002) 5 SCC 111: 2002 SCC (L&S) 633: (2002) 3 SLR 433.
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it with the power to make law within the meaning of Article 13 (2) governing its relationship
with other people or the affairs of other people. In either case, it should be entrusted with
functions which are governmental or closely associated therewith by being of public
importance or fundamental to the life of the people.
25
The court further said that Ajay Hasia
26

tests are irrelevant for determining whether an entity is instrumentality or agency of the
state.
[ 11.] In Zee Telefilms Ltd. v. Union of India
27
, S.B. Sinha, J. and S.N. Variava, J. said that
the expression authority must be given a liberal interpretation. The concept that all public
sector undertakings incorporated under the Companies Act or the Societies Registration Act
or any other act for answering the description of State has in the past three decades undergone
a sea change. The thrust now is on the composition of the body and the functions performed
by it. The court elaborated three different concepts for determining whether a body is an
authority within Article 12, one of which was: a private body which is allowed to discharge
public duty of positive obligation of public nature and is furthermore allowed to perform
regulatory and controlling functions and activities which were otherwise the job of the
Government.
[ 12.] In M.C. Mehta v. Union of India
28
, although the question the whether a private
corporation fell within the ambit of Article 12 was not decided by the court, it stressed the
need to do so in future. The Court looked into the Industrial Policy of the Government and
said that if an analysis of the declarations in the Policy Resolutions and the Act is undertaken,
we find that the activity of producing chemicals and fertilisers is deemed by the State to be an
industry of vital public interest, whose public import necessitates that the activity should be
ultimately carried out by the State itself. In the interim period with State support and under

25
Chain Singh v. Mata Vaishno Devi Shrine Board, (2004) 12 SCC 634; Ramesh Ahluwalia v. State of Punjab,
(2012) 12 SCC 331.
26
Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722 : 1981 SCC (L&S) 258.
27
(2005) 4 SCC 649 : AIR 2005 SC 2677.
28
(1987) 1 SCC 395.
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State control, private corporations may also be permitted to supplement the State effort. Even
private corporations manufacturing chemicals and fertilisers can be said to be engaged in
activities which are so fundamental to the Society as to be necessarily considered government
functions.
1.5. A COMPANY OR CORPORATION CAN BE A CITIZEN UNDER ARTICLE 19
[ 13.] It is most humbly submitted, that a company or a corporation can be treated as a
citizen to enforce the fundamental rights available under Article 19 of the Constitution. In the
case of RC Cooper v. UOI
29
, also known as the Bank Nationalisation case, it was stated that if
the actions of the state impairs the right of the company thereby affecting the rights of an
individual shareholder the protection of article 19 will be available to them. The Fundamental
Rights of the shareholders as citizens are not lost when they associate to from a company.
The Bank Nationalisation case was followed in Bennett Coleman and Co. v. Union of India,
30

in which the court held that the protection of Article 19 was available to a shareholder, editor,
printer and publisher of the newspaper. The individual rights of speech and expression of
editors, directors and shareholders are all exercised through their newspapers through which
they speak.
[ 14.] The Supreme Court in D.C. & G.M. v. Union of India
31
has held that writ petition
filed by a company complaining denial of Fundamental Rights guaranteed under Article 19 is
maintainable. Desai, J., held, the right of the shareholder and the company are co-extensive
and the denial to one of the fundamental freedoms would be denial to the other. The Judge
pointed out that this is the modern trend and suggested that the controversy on the point
should be put to an end by passing appropriate legislation. Hence, the locus standi of the

29
AIR 1970 SC 564.
30
AIR 1973 SC 106.
31
AIR 1983 SC 937.
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shareholders is beyond challenge after the ruling of the Supreme Court in the Bank
Nationalisation Case.
32

CONTENTION II: THE ACTIONS OF THE RESPONDENT ARE IN VIOLATION OF FUNDAMENTAL
RIGHTS OF THE PETITIONER AND PUBLIC AT LARGE
2.1. VIOLAION OF ARTILCE 19 (1) (g)
[ 15.] It is most vehemently contended that WindTel is liable for the deteriorated
performance of the FlixTime and its services across the globe as they have deliberately
interfered with the connection quality and slowed the streaming service of FlixTime as a ploy
to adopt anti-competitive techniques. WindTel has willfully and wrongfully maintained and
abused its monopoly power through anticompetitive and exclusionary behavior directed at
FlixTime. WindTels anticompetitive and discriminatory conduct has directly caused injury
to FlixTimes business and hence violate the rights guaranteed to them under Article 19 (1)
(g) of the Constitution.
2.1.1. Unfair Conduct of the Respondent
[ 16.] In the present matter, WindTel which is both a DTH provider and Internet Service
Provider had been incurring losses in the DTH business which could be seen from its QOQ
reports and the CEO of WindTel was under tremendous pressure to stem the losses incurred
by the company in the DTH business. In July 2014, WindTels broadband users started
noticing deterioration in the streaming quality of FlixTime and its services for which
FlixTime was once renowned among its customers.
33
There were no more seamless HD
streams and instead service would keep buffering every few minutes making for a very poor

32
J.N. Pandey, The Constitutional Law of India, (50h ed. 2013).
33
Moot proposition, 3.
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experience. There were countless complaints from customers using FlixTime services on
WindTel network, although FlixTime continued to work well on other operators.
[ 17.] WindTel in hope that its customers would move from FlixTime to their traditional
DTH network, which had captured 65% of the market before FlixTime came into operation,
started using anti-competitive techniques in order to protect their DTH business. The
company clearly obtained an unfair advantage of their dominant position and hence violated
the fundamental freedom of free trade and occupation.
2.1.2. Concerted Practice and Cartelization
[ 18.] A concerted practice is known as Cartelization. Its a practice of entering into an
agreement or arrangement or understanding between enterprises and instituting measures to
control competition. The Competition Act defines cartel in 2(c) which is an association of
producers or service providers who by agreement among themselves attempt to control
production or provision of services to obtain a monopoly in any particular field or
commodity.
[ 19.] A coordinated activity of a parent and its wholly owned subsidiary company must be
viewed as that of a single enterprise for the purposes of that section.
34
A parent and its wholly
owned subsidiary company have a complete unity of interest.
35
Their objectives are common
and their general corporate objectives are guided or determined not by two separate corporate
consciousnesses, but one. With or without formal agreements, the subsidiary acts for the
parents benefit. In reality, the parent and the subsidiary always have a unity of purpose or
common design.
36
Even an attempt to control the competition is punishable and considered
to be bad in law.
37

34
D.P. Mittal, Competition Law, (2003).
35
Id.
36
Copperweld Corp. et al v. Independence Tube Corp. 467 US 752.
37
Union of India v. Hindustan Development Corporation, [1993] 3 SCC 499.
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2.1.3. Abuse of Dominant Position by WindTel
[ 20.] It is most respectfully submitted that the respondent, WindTel was clearly in a
dominant position being an ISP. Its actions had direct consequences on FlixTime and its
services and they have misused that position by affecting the services of the petitioner herein.
4 of the Competition Act, 2002 deals with abuse of dominant position by an enterprise. The
concept of abuse of dominant position of market power refers to anti-competitive business
practices in which the dominant firm may engage in- order to maintain or increase its position
in market.
2.1.4. Unfair Condition in Provision of Services
[ 21.] In the present matter, WindTel contacted FlixTime to pay them interconnection
charges, on the grounds that content and service providers such as FlixTime are making
money at the cost of ISPs and hence they should reward them for the same. Clause 26 of
UAS license agreement stipulates that interconnection charges shall be within technical
feasibility of the network and within the framework of TRAI guidelines. Moreover,
WindTels CEO even stated in an interview that they expected the FlixTime Streaming
problems to improve once the company agreed to the terms imposed by them.
[ 22.] Furthermore, WindTel began backdoor negotiations with ISPs with a view to resolve
this latest roadblock as they were providing the internet service to customers much below the
cost and in order to discourage the customers from streaming large amount of videos from
FlixTime services. Hence, it is contended that WindTel tried of obtain an unfair advantage of
their position by imposing unfair terms and condition on the petitioners herein.
2.1.5. Limiting or Restricting the Provision of Services
[ 23.] According to 4 (2) of the Competition act, the abuse of dominant position occurs
when an enterprise limits or restricts production of good or provision of services or market
thereof. The Competition Act, 2002 also prohibits an enterprise using its dominant position
8
th
Page | 10
in one relevant market to enter into, or protect, another relevant market. This is attempted
through the device of tying arrangements. A seller exploits his dominant position in one
market to expand into another. WindTel has arbitrarily restricted the services of FlixTime on
its network which is a clear violation of Article 19 (1) (g).
[ 24.] In light of the above arguments, it is most vehemently contended that WindTels
unfair conduct in limiting or restricting provision of services was a result of a concreted
business policy. It was a clear abuse of the dominant position enjoyed by the enterprise and
hence, in violation of the freedom of free trade and profession incorporated under Article 19
(1) (g) of the Constitution.
2.2. VIOLATION OF ARTICLE 19 (1) (a) AND ARTICLE 14
[ 25.] It is most respectfully submitted that there has been a violation of Fundamental Rights
of petitioner as their services have been arbitrarily restricted by WindTel, the ISP provider.
Internet today has emerged as a platform where people exchange their views and information
via emails, blogs, post, social networking sites etc. and restricting the same is in violation of
freedom of speech and expression. Furthermore, the actions of respondent are in violation of
Article 14 as they have acted arbitrarily in curtailing the services of petitioner and the same
constitutes discrimination against the petitioners herein.
2.2.1. Violation of Freedom of Speech and Expression
[ 26.] Constitution of India guarantees that all citizens shall have the right to freedom of
speech and expression.
38
Freedom of Speech and expression means the right to express one's
own convictions and opinions freely by words of mouth, writing, printing, pictures or any
other mode.
39
It thus includes the expression of ones ideas through any communicable

38
Indian Const. art 19 (1) (a).
39
Durga Das Basu, Commentary On The Constitution Of India, (8d ed. 2008).
8
th
Page | 11
medium or visible representation, such as, gesture, signs and the like.
40
The constitutional
conception of free speech in India, which the Court has gradually evolved over many years, is
a social-democratic one that requires the keeping open of a free and inclusive public
sphere.
41
And if there is one thing that fast-lanes over the internet threaten, it is certainly a free
and inclusive (digital) public sphere.
42

[ 27.] Net Neutrality means an Internet that enables and protects free speech. It means that
Internet service providers should provide us with open networks and should not block or
discriminate against any applications or content that ride over those networks.
43
Under this
principle, consumers can make their own choices about what applications and services to use
and are free to decide what lawful content they want to access, create, or share with others.
This openness promotes competition and enables investment and innovation.
44
Just as your
phone company cannot decide who you could call and what you say on that call, your ISP
should not be concerned with what content you view or post online.
[ 28.] Without Net Neutrality, ISPs will be able to devise new schemes to charge users more
for access and services, making it harder for us, the consumers to communicate online and
easier for companies to censor our speech. Without Net Neutrality, ISPs will be able to block
content and speech they dont like, reject apps that compete with their own offerings, and
prioritize Web traffic by reserving the fastest loading speeds for the highest bidders and
sticking everyone else with the slowest.
45

40
Lowell v. Griffin, (1939) 303 US 444.
41
Sakal Papers v. Union of India; AIR 1962 SC 305; Bennett Coleman v. Union of India, AIR 1973 SC 106;
Union of India v. The Motion Picture Association; LIC v. Manubhai D. Shah, (1992) 3 SCC 637.
42
Alexis Ohanian and Roy Singham, Net Neutrality, Monopoly, and the Death of the Democratic Internet, (May
8, 2014), available at http://motherboard.vice.com/read/net-neutrality-monopoly-and-the-death-of-the-
democratic-internet?trk_source=homepage-lede.
43
Net Neutrality What you need to know, available at http://www.savetheinternet.com/net-neutrality-what-
you-need-know-now.
44
Open Internet, available at http://www.fcc.gov/openinternet (accessed on 09.09.2014 at 10.35 P.M.).
45
Net Neutrality, available at http://www.savetheinternet.com/net-neutrality (accessed on 09.09.2014 at 10.43
P.M.).
8
th
Page | 12
[ 29.] Various countries have introduced the concept of Net Neutrality in their legal system
to fight from the problems of anti-discrimination, blocking the sites etc. Under the American
Internet Freedom and Non-Discrimination Act of 2006, whereby discrimination by
network operators is per se illegal and explicit obligations of broadband network providers in
ensuring net neutrality was provided for.
46
It also incorporated a requirement that network
operators should treat all data travelling over or on communications in a non-
discriminatory way.
47

[ 30.] Moreover, the Telecom Regulatory Authority of India (TRAI), in its guidelines for
issuing licences for providing Unified Access Service, promotes the principle of non-
discrimination and makes a licensee liable for not adhering to the quality of service.
The internet is a wonderful piece of technology which touches each and every aspect of our
modern life. A free Internet is the backbone of modern society; it is a guardian of our civil
liberties, the incubator of innovation and entrepreneurship and any act directed to restrict the
same affects the public at large and is a matter of concern for all.
2.2.2. Infringement of the Right to Equality
[ 31.] Spectrum, which is universally treated as a scarce finite and renewable natural
resource, the intrinsic utility of that natural resource has been elaborately considered by
Supreme Court in Centre for Public Interest Litigation and others v. Union of India and
others
48
and in the Presidential Reference, the opinion of which has been expressed in
Natural Resources Allocation, in Re: Special Reference
49
. The Honble Supreme Court
reiterated that the spectrum as a natural resource belongs to the people, though State legally
owns it on behalf of its people because State benefits immensely from its value.

46
Internet Non-Discrimination Act of 2006, 2360, para 4, 109th Cong. (2006).
47
Internet Non-Discrimination Act of 2006, 2360, para 4(6), 109th Cong. (2006).
48
(2012) 3 SCC 1.
49
(2012) 10 SCC 1.
8
th
Page | 13
[ 32.] As natural resources are public goods, the doctrine of equality, which emerges from
the concepts of justice and fairness, must guide the State in determining the actual
mechanism for distribution of natural resources. In this regard, the doctrine of equality has
two aspects. First, it regulates the rights and obligations of the State vis--vis its people and
demands that the people be granted equitable access to natural resources and/or its products
and that they are adequately compensated for the transfer of the resource to the private
domain; and second, it regulates the rights and obligations of the State vis--vis private
parties seeking to acquire/use the resource and demands that the procedure adopted for
distribution is just, non-arbitrary and transparent and that it does not discriminate between
similarly placed private parties.
50

[ 33.] The Public Trust Doctrine rests on the principle that certain resources like air, sea,
waters and the forests have such a great importance to the people and that it would be
unjustified to make them a subject of private ownership. Our legal system-based on English
Common Law includes the public trust doctrine as part of its jurisprudence. The State is the
trustee of all natural resources which are by nature meant for public use and enjoyment and
therefore is under a legal duty to protect the natural resources. Public at large is beneficiary of
these resources. An analogy can be drawn successfully with the present case where the
restrictions have been imposed on FlixTime by ISPs like WindTel. Thus, it is contended that,
if spectrum be made available only to a select few or restrictions are being imposed on it, it
will not just amount the violation of right to equality but also to the ruling of the hon'ble
Supreme Court of India in M.C Mehta v. Kamala Nath
51
where the court accentuated the
Public Trust Doctrine declared to be the law of the land.
52

50
51
(1997) 1 SCC 388.
52
Apoorva Anubhuti and Rashmi Bothra, The Contemporary Commons Theory: A Debate in Modern
Telecommunication Law, (2008) 1 NUJS L Rev 273.
8
th
Page | 14
[ 34.] Furthermore, the Supreme Court in the decision Secy., Ministry of Information and
Broadcasting, Govt. of India v. Cricket Assn. of Bengal
53
has in unequivocal terms said that
the broadcasting media should be controlled by the public as against a handful of people. The
decision also mandates providing equal access to citizens belonging to diverse groups as
opposed to a select few.
[ 35.] It is contended that on a tiered Internet, controlled by the phone and cable companies,
only the content and services as promoted by them will enjoy existence on the Internet. We
must fight to ensure that the Internet we love wont simply become a platform for corporate
speech or another tool for spying. The Internet shouldnt be a walled garden. It should remain
a forum for innovation and free expression.
CONTENTION III: THE RESPONDENTS ACT OF SHARING INTERNET ACTIVITY OF THE
PETITIONER WITH THIRD PARTY IS ILLEGAL AND VIOLATION OF RIGHT TO PRIVACY
[ 36.] It is most humbly submitted that sharing of Manu Sharmas web history by WindTel
with a third party, especially one like Wind Entertainment is illegal and in violation of his
right of privacy. The respondent in its capacity of being an intermediary has failed to preserve
and retain the data of its subscriber and was negligent in implementing and maintaining
reasonable security practices and procedures which they must have complied with. The
respondent is liable for the disclosure of the personal information of the petitioner, without
his consent and also liable for unauthorized interception of his personal data.
3.1. VIOLATION OF RIGHT TO PRIVACY
[ 37.] The right to privacy has not been expressly guaranteed under the Constitution of
India, nevertheless the Supreme Court has recognized this right by construing right to

53
(1995) 2 SCC 161: AIR 1995 SC 1236.
8
th
Page | 15
privacy as part of the right to protection of life and personal liberty under Article 21 of the
Indian Constitution.
54

[ 38.] In the absence of a general law governing privacy, the law of privacy in India has
been developed through precedents. The right to privacy was reintroduced in the Indian legal
system by the Honble Supreme Court in Gobind v. State of Madhya Pradesh
55
. The
constitutional holding that frequent domiciliary visit by police without a reasonable cause
infringed upon the petitioners right to privacy firmly established the right for citizens of the
country.
56
There are various other incidents where this Court has recognized the right to
privacy as the right to be let alone and that a citizen has a right to safeguard his privacy.
57
It
has also been held that the right to privacy is not an absolute right and restriction can be
imposed on it only by the state for the prevention of crime, disorder or protection of health or
morals or protection of rights and freedom of others.
58

[ 39.] In the historic judgment of Peoples Union for Civil Liberties v. Union of India
59
,
where 5 of the Indian Telegraph Act, 1885 was challenged which authorizes the Central and
the State Government to resort to phone tapping. This Court held that telephone tapping is a
serious invasion of an individuals right to privacy and it should not be resorted to by the
State unless there is a public emergency or interest of public safety so requires. The Honble
Supreme Court also laid down procedural safeguard for the exercise of power of phone
tapping.

54
Indian Const. art 21.
55
(1975) 2 SCC 148, see also Ms X v. Mr Z, AIR 2002 Delhi 217; Sharda v. Dharampal, (2003) 4 SCC 493
56
See, e.g., Khushwant Singh v. Maneka Gandhi, A.I.R. 2002 Del. 58; Elkapalli Latchaiah v. Govt. of Andhra
Pradesh, 2001 (5) A.L.D. 679; Tamil Nadu Tamil & English Schools Association v. State of Tamil Nadu,
2000 (2) C.T.C. 344.
57
R. Rajagopal v. State of T.N., (1994) SCC 632.
58
Mr. X v. Hospital Z, AIR 1995 SC 495.
59
AIR 1997 SC 568.
8
th
Page | 16
[ 40.] A person accessing the internet often does so within the privacy of his own home and
expects a reasonable level of privacy.
60
The communications when not with a human party
are for the satisfaction of his or her own desires and curiosities. A person may divulge more
information to a computer than to another person. Hence internet communications are
inherently intimate and concern the core of the privacy of the person.
61

[ 41.] The right to privacy is a fundamental right and thus, the petitioner had the right to use
the internet freely and had the right to maintain his privacy relating to his web history. The
respondent in the present case has not only shared the internet activity of the petitioner with a
third party but also disclosed and threatened to disclose the information relating to the same.
The actions of the respondent are in complete violation of the right to privacy enshrined
under the Constitution and they must be held liable for the same.
3.2. CONTRAVENTION OF INFORMATION TECHNOLOGY ACT, 2000
[ 42.] The actions of the respondent were in complete contravention of various Information
Technology Act, 2000 (hereinafter referred as IT Act) provision and rules, which has
attracted several criminal as well as civil liabilities.
3.2.1. Duty to Preserve and Retain Information and to Implement and Maintain Reasonable
Security Practices and Procedures
[ 43.] WindTel being an ISP provider is an intermediary under 2(1) (w) the IT Act. The
IT Act has made intermediaries responsible for preservation and retention of information.
62

The term information includes data, message, text, images, sound, voice, codes, computer
programmes, software and databases or micro film or computer generated micro fiche.
63
Any
activity on the part of intermediaries to preserve and retain any information may also require

60
Cyber Cafe in Gandhinagar, India, available at http://www.worldembassyinformation.com/india-cyber-
cafe/cyber-cafe-in- gandhinagar.html (July 5, 2010).
61
Apar Gupta, The Law of Online Privacy in India, (2011) PL April S-3.
62
Information and Technology Act, 2000, 67C.
63
Id. 2(1)(v).
8
th
Page | 17
fulfilment of norms related to information (data) security and privacy, i.e., the onus is on the
intermediaries to have reasonable security practices and procedures. Moreover
intermediaries are body corporate as defined under 43A Explanation (i).
64

[ 44.] Moreover, 43A of the Act has made it abundantly clear that where a body corporate,
possessing, dealing or handling any sensitive personal data or information in a computer
resource which it owns, controls or operates, is negligent in implementing and maintaining
reasonable security practices and procedures and thereby causes wrongful loss or wrongful
gain to an person, such a body corporate shall be liable to pay damages by way of
compensation to the person so affected.
[ 45.] In the case of Amit D. Patwardhan v. Rud India Chains
65
, the Adjudicating Officer,
found that the respondent had, by unlawfully obtaining the complainants bank account
statements which constitute sensitive personal data, violated the complainants privacy. In the
connected matter the adjudicating officer held that the Respondent, i.e. Bank of Baroda has
failed to protect the confidential, private and sensitive data of customers, and is clearly in
breach of various sections of IT Act such as 43A and several other rules and ordered the bank
to pay compensation.
66

[ 46.] In other words, intermediaries shall have twin responsibilities, i.e. to preserve and
retain any information, as well as to implement and maintain reasonable security practices
and procedures. Non-compliance of these provisions may attract criminal as well as civil
liabilities under 67C and 43A respectively.
67

64
Vakul Sharma, Information Technology Law & Practice, 223-224 (3
rd
ed. 2011).
65
Complaint No. 1 of 2013, before the adjudicating officer Sh. Rajesh Aggarwal, Secretary, (Information
Technology), Government of Maharashtra. Decided on 15.4.2013.
66
Amit D. Patwardhan v. Bank of Baroda, Complaint No. 15 of 2013, before the adjudicating officer Sh. Rajesh
Aggarwal, Secretary, (Information Technology), Government of Maharashtra. Decided on 30.12.2013.
67
Vakul Sharma, Information Technology Law & Practice, 224 (3
rd
ed. 2011).
8
th
Page | 18
3.2.2. Disclosure of Information
[ 47.] 72A of the IT Act provides punishment for disclosure of information in breach of
lawful contract. This section creates liabilities for service providers, including an
intermediary for the breach of lawful contract. It is in fact a kind of data protection measure,
wherein a service provider who has secured access to any material containing personal
information about a person, discloses such information without the consent of the person
concerned or in breach of lawful contract, with the intent to cause or knowingly that he is
likely to cause wrongful loss or wrongful gain to such a person.
[ 48.] Breach of confidentiality and privacy is aimed at public and private authorities, which
have been granted power under the Act
68
. In District Registrar and Collector v.Canara
Bank
69
, this Court said that the disclosure of the contents of the private documents of its
customers or copies of such private documents, by the bank would amount to a breach of
confidentiality and would, therefore, be violative of privacy rights of its customers.
[ 49.] Further, in Nirmalkumar Bagherwal v. Minal Bagherwal
70
, the order found that the
complainants right to privacy was violated by both the respondents i.e. his wife and bank
but, while determining the quantum of compensation, distinguished between the respondents
in respect of the degree of liability; the respondent wife was ordered to pay a token
compensation amount while the respondent bank was ordered to pay higher compensation to
each of the three complainants individually.
[ 50.] The rules made under the IT Act also protect the privacy of the individual. Rule 6
71
of
reasonable security practices and procedures and sensitive personal data or information,
requires the body corporate to obtain prior consent of the provider of the information before

68
Dr. Shiv Shankar Singh, Privacy and Data Protection in India, (2012) PL February S-2.
69
(2005) 1 SCC 496.
70
Common Judgment in Complaint Numbers 08, 09, 10 of 2013, before the adjudicating officer Sh. Rajesh
Aggarwal, Secretary, (Information Technology), Government of Maharashtra. Decided on 26.08.2013.
71
Information Technology (Reasonable security practices and procedures and sensitive personal data or
information) Rules, 2011, 6.
8
th
Page | 19
disclosing it to a third party. It further states that the body corporate or any other person on its
behalf shall not publish the sensitive personal data or information.
72

3.2.3. Unauthorized Interception
[ 51.] The Procedure and Safeguards for Interception, Monitoring and Decryption of
Information Rules, 2009, states that the directions for interception or monitoring or
decryption of any information generated, transmitted, received or stored in any computer
resource under sub- section (2) of 69 of the IT Act shall not be issued except by an order
made by the concerned competent authority.
73
The interception power can only be exercised
when orders are made by the competent authority and any other interception would be an
unauthorized interception. The intermediaries are also required to put in place adequate and
effective internal checks to ensure the unauthorised interception of messages does not take
place and extreme secrecy is maintained and utmost care and precaution is taken in the matter
of interception or monitoring or decryption of information as it affects privacy of citizens and
also that this matter is handled only by the designated officers of the intermediary and no
other person of the intermediary shall have access to such intercepted or monitored or
decrypted information.
74

[ 52.] Under these rules, the responsibility has been imposed on the intermediaries that they
will be held liable in case of violation pertaining to maintenance of secrecy and
confidentiality of information or any unauthorised interception or monitoring or decryption of
information.
75
This rule prohibits the interception or monitoring or decryption of information
without authorization of competent authority
76
and the disclosure of intercepted or monitored

72
Id. 6 cl. 3.
73
Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009, 3.
74
Id. 20.
75
Id. 21.
76
Id. 24.
8
th
Page | 20
decrypted information by the intermediaries
77
. Any violation or contravention of these rules
is made punishable accordingly under the relevant provisions of the laws for the time being in
force.

77
Id. 25.
8
th
Page | XIII
PRAYER

Wherefore, in the light of the facts stated, question presented, arguments advanced and
authorities cited, it is humbly prayed before this Honble Court that it may graciously be
pleased to adjudge and declare that:

1. THE ACTIONS OF THE RESPONDENT ARE IN VIOLATION OF FUNDAMENTAL RIGHTS OF THE
PETITIONER AND PUBLIC AT LARGE.
2. THE ACTIONS OF RESPONDENT IN SLOWING FLIXTIME SERVICES ARE ILLEGAL AND SHOULD
BE IMMEDIATELY TERMINATED.
3. THE RESPONDENT HAS VIOLATED THE RIGHT TO PRIVACY OF THE PETITIONER AND HE
SHOULD BE ADEQUATELY COMPENSATED FOR THE SAME.

And pass any other relief that the Honble Court may be pleased to grant and for this act of
kindness the counsels for the petitioners shall forever humbly pray.

All of which is respectfully submitted.

Sd/-
Counsels on behalf of the Petitioner

Memorial Petitioner

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