Best Team Memorial Petitioners Slcu National Moot 13 2023

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13th SLCU National Moot, 2023

Best Team Memorial - Petitioners
School of Law
Christ (Deemed to be University)
Before the Hon'ble Supreme Court of Union of Kennedy
In the Matters of
Writ Petition No : 172 of 2022
Socialistic Liberal Party … Petitioner;
Versus
Union of Kennedy … Respondent.
With
Civil Appeal No : 153 of 2022
Bluetick … Appellant;
Versus
National Company Law Appellate Tribunal …
Respondent.
And
Writ Petition No : 102 of 2022
Opposition Party … Petitioner;
Versus
Union of Kennedy … Respondent.
Memorial on Behalf of Petitioners
-TABLE OF CONTENTS-
-TABLE OF CONTENTS- I
-LIST OF ABBREVIATIONS- III
-INDEX OF AUTHORITIES- IV
-STATEMENT OF JURISDICTION- VIII
-STATEMENT OF FACTS- IX
-STATEMENT OF ISSUES- XI
-SUMMARY OF ARGUMENTS- XII
-ARGUMENTS ADVANCED- 1
I. That Sections 8, 18, 19 and 22 of the 1
Digital Personal Data Protection Act,
2022 is violative of Fundamental
Rights enshrined in the Constitution of
Union of Kennedy
A. Section 8 is violative of Fundamental 1
Rights
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B. Section 18 is violative of Fundamental 3

Rights
C. Section 19 is violative of Fundamental 5
Rights
D. Section 22 is violative of Fundamental 5
Rights
II. That the Government violated the 6
Fundamental Rights laid down in the
Constitution of Union of Kennedy by
employing the Unicorn software
A. Violation of Right to Privacy under 6
Article 21
B. Gross Violation of Article 19 of the 9
Constitution
III. That the absence of an option to opt- 10
out of sharing data with the parent
company without having users to let
go of their services by bluetick is not
unlawful
A. The policy is not violative of DPDP Act, 11
2022
IV. That the terms and conditions of the 15
recent update by Bluetick do not
violate the provisions of the
Competition Act, 2022
A. Acanti is not Dominant in the relevant 16
market
B. In Arguendo, Acanti has not abused its 18
dominant position
-PRAYER- XIV
-LIST OF ABBREVIATIONS-
ABBREVIATIONS FULL FORM
& And
§ Section
¶ Paragraph
AIR All India Report
Art. Article
CCI Competition Commission of India
CCUK Competition Commission of Union
of Kennedy
cl. Clause
Const. Constitution
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Govt. Government
HC High Court
Hon'ble Honourable
Ltd. Limited
MP Madhya Pradesh
NCLAT National Company Law Appellate
Tribunal
No. Number
Ors Others
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Supp Supplement
U.P. Uttar Pradesh
v. Versus
-INDEX OF AUTHORITIES-
SUPREME COURT CASES
1. ‘X’ v. Hospital ‘Z’, (1998) 8 SCC 296 11
2. AGM v. Radhey Shaym Pandey, (2020) 6 SCC 13
438
3. Anuradha Bhasin v. Union of India, (2020) 3 3, 10
SCC 637
4. Asha Ranjan v. State of Bihar, (2017) 4 SCC 11
397
5. Binoy Viswam v. Union of India, (2017) 7 10
SCC 59
6. Bishambhar Dayal Chandra Mohan v. State of 10
UP., (1982) 1 SCC 39
7. Central Inland Water Transport Corporation 13
Ltd. v. Brojo Nath Ganguly, (1986) 3 SCC 156 :
AIR 1986 SC 1571
8. Common Cause (A Registered Society) v. 1
Union of India, (1996) 2 SCC 752
9. Directorate of Revenue v. Mohd. NisarHolia, 6
(2008) 2 SCC 370
10. District Registrar & Collector v. Canara 12
Bank, (2005) 1 SCC 496
11. District Registrar and Collector v. Canara 3
Bank, (2005) 1 SCC 496
12. Gobind v. State of Madhya Pradesh, (1975) 11
3 SCR 946
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13. Harshita Chawla v. WhatsApp, 2020 SCC 16

OnLine CCI 32
14. Indian Express Newspapers (Bombay)(P) 9
Ltd. v. Union of India, (1985) 1 SCC 641
15. Jeeja Ghosh v. Union of India, (2016) 7 SCC 9
761
16. Justice K.S. Puttaswamy (Retd.) v. Union of passim
India, (2017) 10 SCC 1
17. K. Veeraswami v. Union of India, (1991) 3 5
SCC 655
18. Karmanya Singh Sareen v. Union of India, 3, 14
2017 SCC OnLine SC 434
19. Kharak Singh v. State of UP., (1964) 1 SCR 6, 10
332
20. M Nagaraj v. Union of India, (2006) 8 SCC 6
212
21. M. Venugopal Reddy v. Trans Union CIBIL 2
Limited, 2018 SCC OnLine CCI 100
22. Maneka Gandhi v. Union of India, (1978) 1 3, 4, 11
SCC 248
23. Manoi Narula v. UOI, (2014) 9 SCC 1 11
24. Modern Dental College & Research Centre v. 10
State of MP., (2016) 7 SCC 353
25. Mohd. Arif v. Registrar, Supreme Court of 7
India, (2014) 9 SCC 737
26. Moran Mar Basselios Catholicos v. Most Rev. 6
Mar Poulose Athanasius, (1955) 1 SCR 520
27. People's Union for Civil Liberties (PUCL) v. 8, 9, 11
Union of India, (1997) 1 SCC 301
28. R. Rajagopal v. State of T.N., (1994) 6 SCC 11
632
29. R.C. Cooper v. Union of India, (1970) 1 SCC 9, 11
248 : AIR 1970 SC 564
30. Ram Jethmalani v. Union of India, (2011) 8 9
SCC 1
31. S. Madhusudan Reddy v. V. Narayana 6
Reddy, 2022 SCC OnLine SC 1034
32. S.P. Gupta v. Union of India, 1981 Supp 2, 5
SCC 87
33. Sharda v. Dharmpal, (2003) 4 SCC 493 11
34. State of Madras v. V.G. Row, (1952) 1 SCC 9
410 : 1952 SCR 597
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35. Supreme Court of India v. Subhash Chandra 9

Agrawal, (2011) 1 SCC 496
36. Union of India v. R Gandhi, (2010) 11 SCC 1 5
37. Vishaka v. State of Raj asthan, (1997) 6 3
SCC 241
HIGH COURT CASES
1. Cochin Institute of Science & Technology v. 15
Jisin Jijo, 2019 SCC OnLine Ker 1800
2. Lilly White v. Mannu Swami, AIR 1966 Mad 13
13
3. Rahul Chowdhary v. State of Telangana, 2022 7
SCC OnLine TS 2387
4. Registrar of Companies v. Dharmendra Kumar 7
Garg, 2012 SCC OnLine Del 3263
5. Sri Vasunathan v. The Registrar General, 4
2017 SCC OnLine Kar 424
COMPETITION COMMISSION CASES
1. Arshiya Rail Infrastructure Ltd (ARIL) v. 20
Ministry of Railways, (2013) 112 CLA 297 (CCI)
2. Belaire Owner's Association v. DLF Limited, 17
2011 SCC OnLine CCI 89
3. DLF Limited v. Competition Commission of 19
India, 2014 Comp LR 1
4. Exclusive Motors (P) Ltd. v. Automobili 17
Lamborghini SPA, (2014) 121 CLA 230 (CAT)
5. Fast Track Call Cabs (P) Ltd. v. CCI, 2016 18
SCC OnLine Comp AT 89
6. Jupiter Gaming Solutions Private Limited v. 19
Government of Goa, (2012) 106 CLA 339 (CCI)
7. Kapoor Glass (India) Private Limited v. Schott 18
Glass India Private Limited, 2012 SCC OnLine
CCI 16
8. M/s UNG Stock Exchange of India Ltd. v. 17
Competition Commission of India, 2014 Comp
LR 304
9. Manoj K. Sheth v. National Stock Exchange of 17
India Ltd., 2021 SCC OnLine CCI 38
10. Matrimony.com Limited v. Google LLC, 2018 18
SCC OnLine CCI 1
11. MCX Stock Exchange Ltd. v. NSE India Ltd, 19
Case No. 13/2009 (CCI)
12. Ramakant Kini v. Dr. L.H. Hiranandani 17
Hospital, 2014 SCC OnLine CCI 15
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13. Shamsher Kataria (Informant) v. Honda Siel 20

Cars India Ltd, 2014 Comp LR 1 (CCI)
14. Shri Pravahan Mohanty v. HDFC Bank Ltd. 17
and Card Services Division of the HDFC Bank,
Case No. 17 of 2010 (CCI)
15. Sponge Iron Manufacturers Association v. 17
National Mineral Development Corporation, 2013
SCC OnLine CCI 19
16. Sunil Bansal v. Jaiprakash Associates Ltd., 18, 19
2015 Comp LR 1009 (CCI)
17. Vinod Gupta v. WhatsApp, Case No. 99 of 19, 20
2016, (CCI)
INTERNTIONAL CASES
1. Bundesverband v. Planet 49 GmbH, (2019) C 12
-673/17, Court (Grand Chamber)
2. Carpenter v. United States, 138 S.Ct. 2206 10
(2018)
3. Charles Katz v. United States, 1967 SCC 15
OnLine US SC 248
4. Hoffmann-La Roche & Co. AG v. Commission, 16
1979 ECR 461, (ECJ)
5. MCI Communications Corp. v. AT&T, 708 F. 20
2d 1081, 1132 (7th Cir. 1983)
6. Orange România SA v. Autoritatea Naţională, 12
(2020) C-61/19, Court of Justice of the EU
7. United Brands Co. v. Commission, 1978 ECR 16
207, (ECJ)
8. United States v. Terminal RR Ass'n of St. 20
Louis, 224 US 383 (1912)
9. US in Berkey Photo v. Eastman Kodak Co., 16
603 F. 2d 263 (1979)
STATUTES
1. Digital Personal Data Protection Act, 2022 passim
2. Information Technology Act, 2000 7, 8
3. Telegraph Act, 1885 8
4. The Comnetition Act, 2002 16
CONSTITUTIONAL PROVISIONS
1. India Const, art 19(1)(a) 9, 10
2. India Const, art 19(1)(d) 10
3. India Const, art 19(1)(g) 10
4. India Const, art 19(6) 10
ARTICLES AND RESEARCH PAPERS
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1. Collis, David, Ashley Hartman and Aakash Mehta, $19B 20

4 txt app WhatsApp…omg!, Harvard Business School Case
715-441, (January 2015),
https://www.hbs.edu/faculty/Pages/item.aspx?
num=48458
2. DG Competition, Application of Art 82 of the Treaty to 18
exclusionary abuses, (2005),
http://europa.eu.int/comm/competition/antitrust/
others/discpaper2005.pdf
3. Information Commissioner's Office (Guide), Guide to the 12
GDPR : Principles : Lawfulness, Fairness and Transparency,
https://ico.org.uk/for-organisations/guide-to-data-
protection/
4. M.P., Ram Mohan and Murugavelu, Promode and Ray, 13
Gaurav and Jain, Anmol, Indian Law on Standard Form
Contracts, 62 JILI (2020) 413,
http://dx.doi.org/10.2139/ssrn.3892293.
5. Robert A. Hillman & Jeffrey J. Rachlinski, Standard Form 13
Contracting in the Electronic Age, Cornell Law Faculty
Publications, (2002)
https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?
article=1662&context=facpub; Specht v. Netscape
Communication Corp, 306 F.3d 17 (2d Cir 2002);
Ticketmaster Corp v. Tickets. Com, Inc., 2000 US Dist.
LEXIS 4553
6. The Essential Facilities Concept, OECD, 20
http://www.oecd.org/competition/abuse/1920021.pdf
7. William M. Landes & Richard A. Posner, Market Power in 17
Antitrust Cases, 94 Harv. L. Rev 937 (1981),
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?
article=2551&context=journal_articles
BOOKS
1. 2nd Ed. Vinod Dhall, Competition Law Today : 11
Concepts, Issues and the Law IN Practice,
Oxford University Press 2019
2. Abir Roy, Competition Law In India : A 17
Practical Guide (2nd ed. 2016)
3. N.S. Nappinai, Technology Laws Decoded, 6
Lexis Nexis 2017
OTHER AUTHORITIES
1. General Data Protection Regulation, 2016 12
2. Indian Telegraph (Amendment) Rules, 2007 8
3. Personal Data Protection Bill, 2019 2
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-STATEMENT OF JURISDICTION-
The Petitioner has approached the Hon'ble Supreme Court of Union
of Kennedy under Article 32 of Constitution of Union of Kennedy.
Article 32 of the Constitution of Union of Kennedy reads as follows-
Article 32. Remedies for enforcement of rights conferred by this
Part:
(1) The right to move the SC by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(2) The SC shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by
this Part.
(3) Without prejudice to the powers conferred on the SC by clause
(1) and (2), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the
powers exercisable by the SC under clause (2).
(4) The right guaranteed by this article shall not be suspended
except as otherwise provided for by this Constitution.
The Appellant has approached the Hon'ble Supreme Court of Union
of Kennedy under Section 53T of the Competition Act, 2002.
Section 53T of the Competition Act, 2002 reads as follows-
§ 53T. Appeal to Supreme Court. —The Central Government or
any State Government or the Commission or any statutory authority
or any local authority or any enterprise or any person aggrieved by
any decision or order of the Appellate Tribunal may file an appeal to
the Supreme Court within sixty days from the date of communication
of the decision or order of the Appellate Tribunal to them:
Provided that the Supreme court may, if it is satisfied that the
applicant was prevented by sufficient cause from filing the appeal
within the said period, allow it to be filed after the expiry of the
said period of sixty days.
-STATEMENT OF FACTS-
-BACKGROUND-
The Union of Kennedy gained its independence in 1947 and
embarked on the journey by making a Constitution and bestowing upon
its citizens fundamental rights, standing on the pillars of justice,
equality and liberty. Meanwhile, two parties rose to prominence : NPP, a
predominantly right-wing party and Socialistic Liberal Party,
representing the minority population.
In 2018, NPP won the elections by a majority and formed
Government at the Centre. Within several years, at least three non-NPP
-ruled State Governments were toppled due to the defection of
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Members of Legislative Assemblies (MLAs) to the NPP. Moreover, there

was a sudden rise in the raiding of premises of non-NPP leaders by the
ED, UBI and IT. In 2021, NPP experienced an unprecedented landslide
victory in certain states, whereby the opposition parties termed the
actions of NPP as unjust, claiming that NPP was using “dirty tricks” to
win the election.
-EDITORIAL CONTROVERSY-
An editorial titled, ‘Corporates now know what you think & how you
breathe’ was published in a leading national daily on 26th July, 2022,
highlighting the misuse of social media platforms by its developers, due
to which privacy of users was in jeopardy. This editorial stirred chaos in
public and an investigation was undertaken by an independent agency.
The recurring issue that came up in the investigation report dealt
substantially with Bluetick.
-UNFAIR PRIVACY POLICIES OF ACANTI-
Acanti is the most extensively used messaging app in Union of
Kennedy popular for its video calling and messaging features. Bluetick
had acquired Acanti and introduced captivating features. Further, in
any such updates, users must click on the ‘I Agree’ button and any
continued usage of the application post new updates is deemed to be
implied consent to the terms and conditions of the privacy policy of the
application. Additionally, Bluetick in 2016, through a notice, brought a
privacy update in Acanti wherein its users' account information would
be shared with Bluetick and all its group companies.
-STATUTORY ACTION AGAINST BLUETICK-
Lucian Verlac distressed by the anti-competitive practices pursued
by Bluetick filed a case against Bluetick in the Competition Commission
of Union of Kennedy (CCUK). The CCUK formed a prima facie opinion
that the ‘take-it-or-leave-it’ nature of the terms and conditions of the
service, required ordering of an investigation by the Director General
under Section 26 of the Competition Act, 2002. On 5th September
2022, CCUK on basis of the report of the DG found the company to be
indulging in anti-competitive trade practices. Bluetick filed an appeal at
NCLAT against the findings of CCUK, however, NCLAT dismissed the
same.
-UNCOVERING UNICORN SPYWARE-
Raids & probes against prominent personalities lead to an
investigation that revealed a spyware called Unicorn embedded in the
devices of these leaders which was created by Dementor, a technology
firm that uses Unicorn to spy on users of Acanti. This spyware can be
downloaded into a user's phone without their knowledge. The
manufacturer of the spyware claims to only sell this spyware to
governments. As per the report of an International Agency, the spyware
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has been active since April 2021. Dementor was allowed by Bluetick to
collect and store the personal data of its users to predict behaviour
patterns. Suspicion was cast on the ruling party NPP, if it had availed
the services of Dementor during the elections.
-GOVERNMENT RESPONSE-
To pacify the public, the Government introduced the Digital Personal
Data Protection Bill, 2022. Subsequently, in December 2022 medical
data breach occurred and all the private medical information of the
patients was leaked. The government after being blamed disregarded
the responsibility it had and the above-mentioned Act was questioned.
-CONNECTED PETITIONS & APPEAL-
Acanti filed an Appeal at the Supreme Court of Union of Kennedy
against the order of NCLAT. The Opposition Party filed a Writ Petition
against the Government for failing to protect the rights of its citizens
and using unethical and illegal means to secure power.
SLP, wanting to hold the government liable for the breach, filed a
Writ Petition in the Supreme Court of Union of Kennedy alleging that
the leak of medical data happened due to the negligence of the
Government.
The Supreme Court took notice of several interconnected matters
that were filed before the Hon'ble Court & took Suo motu cognizance of
the Open Editorial letter dated 26 July 2022 and connected all three
matters.
-STATEMENT OF ISSUES-
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-
ISSUE - I
That Sections 8, 18, 19 and 22 of the Digital Personal Data
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Protection Act, 2022 is violative of Fundamental Rights

enshrined in the Constitution of Union of Kennedy.
It is humbly submitted that Sections 8, 18, 19 and 22 of the Digital
Personal Data Protection Act, 2022 are violative of Fundamental Rights
enshrined in the Constitution of Union of Kennedy. The Petitioner
forwards the following arguments : Firstly, Section 8 is violative of
Fundamental rights as ‘deemed consent’ is an arbitrary power and
violative of Articles 14 & 15 of the Constitution. Secondly, Section 18 is
also violative as the instrumentalities of the state should not be
exempted and there are no specific safeguards. Thirdly, Section 19 will
violative the fundamental rights due to the non- independence of
board. Fourthly, Section 22 is of the Fundamental rights as the power
to review too wide and arbitrary.
ISSUE - II
That the Government violated the Fundamental Rights laid down
in the Constitution of Union of Kennedy by employing the
Unicorn software.
It is humbly submitted that the Union of Kennedy has violated the
fundamental rights of the targets of this spyware attack and periled
their right to privacy. The petitioners put forths these contentions in
pursuance of the same : Firslty, the d Right to Privacy is violated
without any due process or requirements laid down in the Puttaswamy
Judgment. Secondly, the spyware and its usage also violate Article 19
of the Constitution of Kennedy because the targets were deprived of
their true and unhindered right to freedom of movement and
occupation as they were being ‘constantly watched’ and the rights
could not be practised freely, for one cannot be completely free when
under constant state surveillance.
ISSUE- III
That the absence of an option to opt-out of sharing data with the
parent company without having users to let go of their services
by bluetick is unlawful.
It is humbly submitted that the absence of an option to opt-out of
sharing data with the parent company without having users to let go of
their services by bluetick is not unlawful as it is not violative of the
Digital Personal Data Protection Act, 2022. The petitioner forwards the
following arguments in favour of their contention : Firstly, the policy is
in consonance with Section 7. Secondly, the policy is in consonance
with Section 8. Thirdly, the policy is compliant of General Obligations.
ISSUE - IV
That the terms and conditions of the recent update by Bluetick
violate the provisions of the Competition Act, 2022
It is humbly submitted that the terms and conditions of the recent
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update by Bluetick do not violate the provisions of the Competition Act,

2022. The petitioner forwards the following arguments in favour of their
contention : Firstly, Acanti is not Dominant in the relevant market as
market share is not indicative of ‘Dominant nature’ and Acanti cannot
operate independently of other market forces. Secondly, In Arguendo,
even if Acanti is dominant, it has not abused its dominant position as
Acanti did not indirectly impose unfair and discriminatory condition in
its services, Also, there is no predatory pricing and Acanti has not
denied market access.
-ARGUMENTS ADVANCED-
I. THAT SECTIONS 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
¶1. It is humbly submitted that certain provisions of the Digital
Personal Data Protection Act, 2022 (hereinafter referred to as “the DPDP
Act”) are violative of Fundamental Rights enshrined in the Constitution
as (A) Section 8 is violative of Fundamental Rights (B) Section 18 is
violative of Fundamental Rights (C) Section 19 is violative of
Fundamental Rights (D) Section 22 is violative of Fundamental Rights.
A. Section 8 is violative of Fundamental Rights
¶2. It is humbly submitted that Section 8 of the act is violative of
Fundamental Rights guaranteed by the Constitution as (1) “Deemed
Consent” is an arbitrary power and violative of Article 21 and (2)
Section 8 is violative of Articles 14 and 15 of the Constitution of Union
of Kennedy.
1. “Deemed Consent” is an arbitrary power and violative of
Article 21
¶3. The Act introduces deemed consent1 which is a legal concept
whereby one party is legally assumed to have consented to something
on the basis that there is no evidence to the contrary. It is a form of
constructive consent whereby consent is implied by the circumstances
of the situation, not explicitly expressed.
¶4. Deemed consent has been criticised because the criteria for what
constitutes deemed consent is broad and vague, allowing the
processing of personal data without consent for a variety of reasons.2
Sections 8(6)3 , 8(7)4 , & 8(8)5 of the Act states that consent of a Data
Principal will be “deemed” in certain situations including for the
maintenance of public order, purposes related to employment and in
public interest, opening the door to wide and vague interpretation.
¶5. Credit scoring models rely on a wide range of personal
information, including financial and sensitive personal data, to assess
an individual's creditworthiness.6 The collection of personal data may
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raise privacy concerns as individuals may not be aware of how their

data is being collected, used, or shared.
¶6. In the Puttaswamy7 Judgement, the Supreme Court upheld the
right to privacy as a fundamental right under Article 21. It also laid
down a three-fold test that must be fulfilled for any executive action to
breach the guard rails around privacy : legality, need and
proportionality. Though there are many laws that regulate credit
scoring, there is no specific law in India that mandates credit scoring.8
A necessary state purpose might not be fulfilled by credit scoring of a
farmer who requests a loan.
¶7. Puttaswamy9 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. The term “public
interest” must be narrowly defined and should not be used to justify
actions that are not truly in the interest of the public.10 Thus, the
section violates the Right to Privacy under Article 21.
2. Section 8 is violative of Articles 14 & 15 of the Constitution
Union of Kennedy
¶8. It is humbly submitted that Section 8 of the act violates Articles
14 and 15 of the constitution of the Union of Kennedy. The importance
of the non-discrimination principle of data protection, that the collection
and processing of data must not discriminate on the basis of race,
ethnicity, religion and others.11
¶9. The DPDP Act, unlike its 2019 iteration,12 has also done away
with the distinction between non-sensitive and sensitive personal data.
The new Act is couched in broader terms wherein S. 8(7) gives
employers the authority to process sensitive information of the data
principal without express consent. If employers can obtain broad-based
consent to process such sensitive information of their employees, it
may lead to unfettered workplace discrimination of gender, sexual,
caste and religious minorities.
¶10. The Supreme Court in Vishaka13 held that discrimination
against women at the workplace is a violation of their fundamental
rights under Articles 14 and 15 of the Constitution. Thus, collecting
sensitive personal information of employees for the matter of
employment without their explicit consent and notice will lead to a
violation of Articles 14 and 15.
B. Section 18 is violative of Fundamental Rights
¶11. It is humbly submitted that Section 18 of the Act is against the
fundamental rights guaranteed by the constitution as (1) the
instrumentalities of the state should not be exempted from the
application of the provisions of Act and, (2) there are no specific
Safeguards.
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1. The instrumentalities of the state should not be exempted

from the application of the provisions of the Act
¶12. Section 18(2)(a) empowers the Central Government to exempt
instrumentalities of the State from the application of the provisions of
the Act.14 The instrumentalities of the state are bound by the
constitutional provisions, including the provisions of the Indian
Constitution and guarantee fundamental rights.
¶13. Further in the case of Maneka Gandhi v. Union of India, 15 the
Supreme Court held that the State, as an instrumentality of the State,
cannot deprive a person of his or her personal liberty without providing
a fair and reasonable procedure as it would be violative of Article 21 of
the Constitution. No reasonable procedure is prescribed in the bill for
the transgression of the said right.
¶14. Puttaswamy16 further introduced the requirement of
‘proportionality’. The proportionality test, now concretized by
judgments such as Anuradha Bhasin v. Union of India, 17 : (a) the law
infringing on privacy must have a legitimate goal; (b) it must bear a
rational nexus with the said goal; (c) there must not be a less
restrictive but equally effective alternative; (d) it must not have a
disproportionate impact on the right-holder.
¶15. Section 8(3) states that the Central Government may by
notification, exempt some data fiduciaries from some imperative
obligations. This gives the central government overreaching power to
provide an exemption to certain data fiduciaries without any due
justification or well-defined reasons, it does not elucidate on a
legitimate goal or lay down any threshold of a legitimate goal on which
the Central Government may exempt the data fiduciary.
¶16. Hence, for the want of the important requirements laid down in
the Anuradha Bhasin18 judgment and Maneka Gandhi19 judgment, the
section violates the right to privacy enshrined under Article 21.
2. There are no specific Safeguards
¶17. It is submitted that as per Section 18(4), the state and
instrumentalities of state are also exempt from the requirement of
purpose limitation, i.e., erasing personal data after its need has been
fulfilled. This too, is devoid of any procedural safeguards and allows the
government to arbitrarily retain data for an indefinite period of time.
This is a plain violation of the data principal's right to be forgotten.
¶18. The Court held that the right to be forgotten is the right of an
individual to have their personal information removed from the internet
or other digital platforms and that this right is an important aspect of
data protection, which enables individuals to have control over their
personal data and the ability to limit the use and dissemination of their
personal information.20 The same was also upheld in Puttaswamy.21
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¶19. There ought to be exceptions to this right in light of the

‘legitimate interests’ of third parties. Clearly, all sorts of third-party
users can have legitimate interests in the use of such data, but this has
to be determined on a case-to-case basis. Thus, an exemption to the
state and its instrumentalities on the erasure of personal data when it
is no longer serving its legal or business purpose, without any
procedural safeguards as laid down in the Puttaswamy22 judgment,
violates the right to be forgotten.
C. Section 19 is violative of Fundamental Rights
¶20. It is humbly submitted that section 19 of the Act is against
basic constitutional principles and violates fundamental rights as it
impinges upon independence of board decisions. Section 19(3)23 states
that central government will appoint and discharge the members at its
own will through notifications. Howbeit, the centre was expected to
formulate fresh rules which would ensure non-discriminatory and
uniform conditions of service, including assured tenure.
¶21. The Board must be independent so that a person to the
elevated to the Board must be possessed with the highest reputation
for independence, uncommitted to loyalty and prepared under all
circumstances to bear any burden and to meet any hardship and always
wedded only to the principles of the Constitution and ‘Rule of Law.’24
1. Non- independence of board will lead to violation of
fundamental rights
¶22. The act entails protection of the right to privacy which is a
fundamental right. In this function the board will perform a judicial
function of ensuring compliance and interpreting the data protection
law which will bear on the right to privacy of the citizens.
¶23. The judicial function of the courts is to interpret and apply the
law.25 It was held that the independence of the judiciary is an integral
part of the basic structure of the Constitution, without which the
judiciary could not guard the fundamental rights of the people. Thus,
the vague provisions of the section giving excessive power to the
central government, undermining the independence of the board will
affect its functioning due to which the board will not be able to protect
the right to privacy of the citizens.
D. Section 22 is violative of Fundamental Rights
¶24. Section 22 of the act is violative of constitutional provisions as
the power to review is too wide and arbitrary and a wide range of power
has been given to the Board to review its decision without framing any
specific guidelines.
¶25. Mere discovery of new or important matter or evidence is not
sufficient ground for review. The party seeking review has also to show
that such matter or evidence was not within its knowledge and even
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after the exercise of due diligence, the same could not be produced
before the court/tribunal earlier.26 The board has been given the power
of review without any reasonable guidelines or due process or due
process which is against fundamental rights.
II. THAT THE GOVERNMENT VIOLATED THE FUNDAMENTAL
RIGHTS LAID DOWN IN THE CONSTITUTION OF UNION OF
KENNEDY BY EMPLOYING THE UNICORN SOFTWARE
¶26. It is humbly submitted before this Hon'ble Court that the Union
of Kennedy has violated the fundamental rights of the targets of this
spyware attack and periled their rights as there is (A) Violation of Right
to Privacy under Article 21 and (B) Gross Violation of Article 19 of
Constitution of Union of Kennedy.
A. Violation of Right to Privacy under Article 21
¶27. The government has violated Article 21 guaranteed under Part
III of the Constitution. The following is elaborated through a three-fold
argument as laid in the Puttaswamy.27 It is submitted that “right to
privacy” is emanating from the two expressions of the Preamble
namely, “liberty of thought, expression, belief, faith and worship” and
“Fraternity assuring the dignity of the individual” and emanating from
Article 19(1)(a) and further, emanating from Article 19(1)(d) and
lastly, from the expression “personal liberty” under Article 21.28
¶28. The judgment held that the right to privacy may be restricted
where such invasion meets the three-fold requirement. The criteria are
as follows (1) Existence of law to justify encroachment on privacy, (2)
Existence of a legitimate state aim and (3) Existence of proportionality
between the means and objects.
1. Existence of law to justify encroachment on privacy or
Legality
¶29. The first requirement is that there must be a law in existence
to justify an encroachment on privacy is an express requirement of
Article 21. The government periled on the right to privacy of people
without any lawful justification or reason, or without any legal basis or
rationality, whatsoever.29 It is submitted that it is clear that a law does
not exist to justify encroachment, further this infringement violates
other existing laws. The statutes being violated are (A) Sections 5, 6,
7, 12 of the DPDP Act, (B) Sections 43, 69 of the Information
Technology Act, 2000 (hereinafter referred to as the IT Act) and (C)
Section 5 of the Telegraph Act, 1885.
(a) SECTIONS 5, 6, 7, 12 OF THE DPDP ACT
¶30. Section 530 of the DPDP Act states that there should exist a
lawful purpose for processing of data which is clearly absent in the
case. Additionally, Section 631 of the act provides that this should be
provided and notified in a clear and plain in language before the
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Collection of data, the same has not been done in this instant case.
¶31. Similarly, Section 732 of the DPDP Act provides that consent of
the data fiduciary is necessary before collecting data, as the Spyware
was downloaded onto a mobile device even without the user's
knowledge which subsequently compromised the user's privacy.33
¶32. Section 1234 of the act provides for Right to Information about
personal data to the data principal, wherein the data principal has the
right to have the information regarding collection and processing of the
personal data which is conspicuously absent in the instant case.35
(b) SECTIONS 43, 69 OF THE INFORMATION TECHNOLOGY ACT , 2000
¶33. Usage of military-grade technology (unicorn), on a smartphone,
which falls within the definitions of ‘computer’ and ‘computer system’
as under Section 2 of the IT Act, violates Sections 43(a)36 , 43(b)37 , 43
(c)38 and 43(d)39 of the IT Act, as it involves accessing a
computer/computer system by introducing a ‘contaminant’ or ‘virus’;
damaging the device and extracting data without permission of the
owner of the device.40
¶34. Unicorn therefore is a ‘computer virus’/‘contaminant’ as under
the IT Act as it is designed to attach itself to a targeted device, modify,
record and transmit data from the target device. Section 69 bestows
the government the power to issue directions for interception or
monitoring or decryption of any information through any computer
resource.41
¶35. However, on perusal of Section 69(2) of the IT Act, the usage
of the term “such interception or monitoring or decryption may be
carried out, shall be such as may be prescribed”42 indicates that a due
procedure should be followed, which is missing in the apparent case
and rather arbitrary.
(c) SECTION 5 OF THE TELEGRAPH ACT , 1885
¶36. The use of Unicorn spyware ‘goes much beyond’ the
interception, monitoring and decrypting of messages which is allowable
under Section 5 of the Telegraph Act, 1885. Moreover, the same shall
only be possible vide an ‘order’.43
2. Existence of a Legitimate State aim
¶37. A legitimate state aim is an essential for such a violation to be
legally valid, however no such aim or object can be made out.
Evidently, there are legal and legitimate reasons why phone tapping
can be permitted, howbeit, same cannot be found in the instant case.
¶38. Phone tapping is authorized by Rule 419A of the Indian
Telegraph (Amendment) Rules, 2007,44 which authorizes such type of
surveillance only for the purpose of public Safety.45 The expression
“Public Safety” means the State of freedom from danger for the people
at large.46
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¶39. Howbeit, it is submitted that this activity falls entirely beyond

the existing regime of lawful surveillance as there was no public
interest or public secret reasons afforded by the government. There
were mostly the ulterior motives of the ruling party to preserve their
seat in the political arena. Conversations on the telephone are often of
an intimate and confidential character. Telephone-tapping would, thus,
infract Article 21 unless it is permitted under the procedure established
by law, which evidently is absent in the instant case.
3. Existence of proportionality between the means and objects
¶40. The third requirement ensures that the means which are
adopted by the legislature are proportional to the object and needs
sought to be fulfilled by the law. It is a settled provision of law that
there should exist rational nexus between the objects and the means to
be adopted to achieve them and extent of such interference must be
proportionate.47
¶41. The onus of non-violation of fundamental rights lies on the
state.48 Therefore, proportionality is an essential facet of the guarantee
against arbitrary state action because it ensures that the nature and
quality of the encroachment is not disproportionate to the purpose of
the law.49 Since the case is devoid of any legitimate aim, proportionality
does not exist.
B. Gross Violation of Article 19 of the Constitution
¶42. The alleged spyware and its usage also violate Article 19 of the
Constitution of Kennedy and its provisions under (1) Right to freedom
of Speech and Expression and (2) Right to move freely throughout the
territory of India and (3) Right to practice any profession, or to carry on
any occupation, trade or business.
1. Violation of Right to freedom of Speech and Expression
¶43. It is submitted that surveillance is violative of Article 19(1)(a)
50 because They employ algorithms that can access the microphones or
cameras of their mobile phones and access words typed by them in

messenger app Acanti. The right under Article 19(1)(a) includes the
privacy of conversations.51 The telephone tapping resorted to by the
government is violative of the Article 19(1)(a).52
2. Right to move freely throughout the territory of India is
violated
¶44. The freedom of movement under Article 19(1)(d)53 therefore
must be a movement in a free country, where he can do whatever, he
likes subject to the law.54 The targets under the shadow of surveillance
are certainly deprived of this freedom. He can move physically, but he
cannot do so freely, for all his activities are watched and noted.
3. Right to practice any profession, or to carry on any
occupation, trade or business
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¶45. The unfair and arbitrary means of surveillance by the

government violate Article 19(1)(g).55 The surveillance on eminent
personalities56 shall hamper this right.57 it is not possible to for an
individual to practice a profession or carry on trade, or occupation
without the right to privacy in practical terms and without the right and
power to keep others away from his work.58
¶46. In arguendo, if it is considered that through means of
surveillance, the government intends to reasonably restrict such a
right, it has to pass the test of Doctrine of Proportionality.59 Doctrine of
proportionality states that a sub-constitutional law(statute) imposing
restrictions on constitutional rights can be treated as proportional if it is
meant to achieve a proper purpose and if measures taken to achieve
such purpose are rationally connected with such purpose and such
measures are necessary.60 In the instant case, no such purpose can be
made out which ensures such a restriction through Article 19(6).61
III. THAT THE ABSENCE OF AN OPTION TO OPT-OUT OF SHARING
DATA WITH THE PARENT COMPANY WITHOUT HAVING USERS TO
LET GO OF THEIR SERVICES BY BLUETICK IS NOT UNLAWFUL
¶47. The right to privacy is an internationally recognized human
right and is protected in almost all liberal democracies either
constitutionally or statutorily.62 In our nation, Part III of the
Constitution weaves a pattern of guarantees on the texture of basic
human rights.63 And the right to privacy has been widely accepted as
implied in Part III of the constitution.64
¶48. It was the reasoning of the Supreme Court in Puttaswamy v.
India65 that a comprehensive privacy regime is a requisite for
determining precisely what and how personal information is to be
protected and hence, the fundamental right of privacy is fulfilled by the
compliance of the specific legislation i.e., the Digital Data Protection
Act, 2022 (hereinafter referred to as the DPDP Act) in context of private
entities.
¶49. In August 2016, Bluetick announced that a change would be
made to the privacy policy of Acanti.66 It is humbly submitted that
bluetick's privacy policy is not unlawful due to the absence of an opt-
out of sharing data option with the parent company without having the
users to let go of their services as (A) The policy is not violative of the
Digital Personal Data Protection Act, 2022.
A. The policy is not violative of DPDP Act, 2022
¶50. Acanti falls under the definition of ‘Data fiduciary’ as per the
DPDP Act67 due to the nature of the data it collects and processes.
Further, the information collected by Acanti falls within the definition of
‘personal data’ under the DPDP Act.68 It is humbly submitted that the
privacy policy is not violative of the DPDP Act as (1) The policy is in
consonance with Section 7 (2) The policy is in consonance with Section
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8 and (3) The policy is compliant of General Obligations.

1. The policy is in consonance with Section 7
¶51. It is humbly submitted that the privacy policy of Acanti is in
consonance with Section 7 as (A) It is not violative of Section 7(1) and
(B) It is not violative of Section 7(4).
(a) IT IS NOT VIOLATIVE OF SECTION 7(1)
¶52. Section 7(1) states that there should be clear consent that is
freely given, specific and informed. It is humbly submitted that Acanti's
privacy policy fulfills all these requirements for consent.69 Consent is
considered as a crucial component of individual autonomy over data.70
Consent is sine qua non to the individual's “zone of privacy” as
contemplated by the apex court.71
¶53. However, a grey area exists in determining the extent of
information required for the constitution of ‘informed consent.’ As
resonated by the General Data Protection Regulation,72 the information
provided must be granular to the extent that it is not “unduly
disruptive or confusing.”73 The use of indicative terms which save users
from hyper-technical language cannot necessarily be seen as non-
compliance.
¶54. While Acanti had released its privacy policy in plain and simple
language for its users, depending on a subjective requirement within
the standard for ‘informed consent’ may open a floodgate that burdens
corporates to discharge their burdens according to the degree of digital
literacy exhibited by each class in their target audience and
otherwise.74
¶55. This is where the importance of informational autonomy
empowers and expects users to not just possess a right of control, but
to exercise the same by remaining vigilant as to the trajectory of their
data. The foundational principle of caveat emptor - buyer beware,
comes into play here. Acanti has specified that data is collected
according to the features that users choose to use.75 Hence, it is in
users' hands what data they wish to share according to the features
they wish to use.
¶56. Further, In the case of Karmanya Singh Sareen v. UOI76 it was
observed that since users were given the option to delete their
“WhatsApp” account, in which event, their information would be
deleted. Therefore, it is always open to the existing users who do not
want their information to be shared with parent company, to opt for the
deletion of their account. In the present case as well Acanti has a
similar account deletion policy77 and hence, users have a free choice
which they themselves must exercise.
¶57. Moreover, the clickwrap method of obtaining consent, through
a one-touch ‘I Agree’ button, has been posited as vitiating any
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possibility of the exercise of informed agency. Per se, such ‘take-it-or-

leave-it’ contracts are not illegal, if they do not violate the doctrine of
unconscionability, i.e., the imposition of unreasonable terms and
conditions between unequal parties.78
¶58. In this regard, Courts have held that ‘dotted line’ contracts do
not afford an opportunity for negotiation, leading individuals to either
accept the unreasonable terms or to forego the service entirely.79 But
the mere lack of opportunity for negotiation do not make such contracts
unreasonable since such a requirement would put an enormous burden
upon corporates to open negotiation channels for each user.80
¶59. Unreasonableness may include practices such as ‘consent
fatigue,’ by which data subjects are exhausted into assenting by being
redirected to multiple web pages for the purpose of accessing basic
terms of a service's privacy policy.81 There is no consent fatigue as
Acanti has provided its privacy policy in one document that is available
to all its users.82
(b) IT IS NOT VIOLATIVE OF SECTION 7(4)
¶60. Additionally, Section 7(4) provides that the data principal has a
right to withdraw her consent but the consequence of such withdrawal
shall be borne by such data principal.83 The illustration given in the
section clearly mirrors the instant case.
¶61. Acanti enters a contract with its users to provide messaging
services. As part of the contract, users consent to processing of their
personal data. If a user chooses not to accept the processing of such
data or withdraws their consent, then Acanti is free to stop offering
their service to its users.
2. The policy is in consonance with Section 8
¶62. Section 8(9)(a) and (c) provide that it is deemed consent for
any fair and reasonable purpose as may be prescribed after taking into
consideration : (1) whether the legitimate interests of the Data
Fiduciary in processing for that purpose outweigh any adverse effect on
the rights of the Data Principal; (2) the reasonable expectations of the
Data Principal having regard to the context of the processing.84
¶63. Acanti collects and use precise location information with
consent when the user chooses to use location-related features.
Additionally, Consent is deemed for data like IP addresses and phone
number area codes for estimated general location.85
¶64. This information is used for diagnostics and troubleshooting
purposes along with an effort to understand how the Services are being
used and customize them for user benefit. This is a fair and reasonable
purpose as : (1) the legitimate interest of Acanti is providing better
service to its user and this is not averse to the rights of the data
principals. (2) it is reasonable to expect a messaging service to process
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such data and the same was observed in Karmanya Singh Sareen v.
UOI.86
3. The policy is compliant of General Obligations
¶65. It is humbly submitted that the privacy policy is compliant of
General Obligations as (A) It is compliant of Section 9(6) and (B) it
fulfils the reasonable Expectation of Privacy.
(a) THE POLICY IS COMPLAINT TO SECTION 9(6)
¶66. Section 9(6) provides that a Data Fiduciary must cease to
retain personal data, as soon as it is reasonable to assume that : (a)
the purpose for which such personal data was collected is no longer
being served by its retention and (b) retention is no longer necessary
for legal or business purposes.87
¶67. In accordance with section 9(6), Clause 6 of the privacy policy
provides that if a user deletes her account, Acanti will delete the
personal data that is no longer needed to operate or provide Services.
Further, clause 3 provides that third-party service providers and other
Bluetick companies in the capacity of Data processors who use data on
Acanti's behalf are subject to the Privacy policy of Acanti while handling
such data. Hence, in case an account is deleted, Acanti's data
processors are liable to follow clause 6 and delete all personal data.
(b) REASONABLE EXPECTATION OF PRIVACY
¶68. Section 9(3) & (4) require a Data Fiduciary shall implement
appropriate technical and organizational measures to ensure effective
adherence with the provisions of the Act and every Data Fiduciary and
Data Processor shall protect personal data in its possession or under its
control by taking reasonable security safeguards to prevent personal
data breach.88
¶69. Furthermore, the Hon'ble Supreme Court identified nine types
of privacy, including “communicational privacy which is reflected in
enabling an individual to restrict access to communications or control
the use of information which is communicated to third parties.”89 Users
thus possess a “reasonable expectation of privacy.”90
¶70. Acanti in accordance with these provisions and the spirit of
“reasonable expectation of privacy” of users has adopted end-to-end
encryption for their services.91 End-to-end encryption means that users
messages are encrypted to protect against Acanti itself and third
parties from reading or sharing them. Acanti thus enables users to
exercise their right to freedom of speech and expression without fear of
retaliation.
IV. THAT THE TERMS AND CONDITIONS OF THE RECENT UPDATE BY
BLUETICK DO NOT VIOLATE THE PROVISIONS OF THE COMPETITION ACT ,
2022
¶71. It is most humbly submitted that the terms and conditions of
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the recent update by bluetick do not violate the provisions of the

Competition Act, 2002 as (A) Acanti is not Dominant in the relevant
market and (B) In Arguendo, Acanti has not abused its dominant
position.
A. Acanti is not Dominant in the relevant market
¶72. It is humbly submitted that in order to inquire into the issues
of dominance and abuse under the provisions of the Competition Act
(hereinafter referred to as “the Act”), it is necessary to determine the
relevant market as prescribed under Section 2(r) of the Act,92 assess
dominance in the relevant market with regards to the factors laid down
in Section 19(4) of the Act,93 and establish abuse of dominance under
Section 4 of the Act.94
¶73. When determining what constitutes the relevant market, due
regard must be given to both the relevant product as well as the
geographic market.95 All those products or services which are regarded
as interchangeable or substitutable by the consumer form part of the
same relevant product market.96 Relevant product market is primarily
determined by gauging product substitutability from a consumer's
perspective.97
¶74. Acanti broadly provides internet-based consumer
communication services.98 While it is challenging to compartmentalize
these into water-tight categories, it is important to identify an app's
primary or most dominant feature to categorize it into a particular
relevant market.99 Hence, going by the most fundamental feature,
Acanti's relevant market is ‘Over-The-Top messaging Apps, linked to a
smartphone device that have features of instant messaging, video
calling and message broadcasting.’
¶75. An enterprise must hold a position of strength qua its
competitors in the given relevant market in order to be termed as
dominant within the meaning of §4 of the Act.100 It is humbly
submitted that Acanti is not dominant in the above delineated relevant
market as (1) Market share is not indicative of ‘Dominant nature’ and
(2) Acanti cannot operate independently of other market forces.
1. Market share is not indicative of ‘Dominant nature’
¶76. While the Commission has always analysed the market share in
a dominance investigation, it has observed in numerous decisions that
market share of an equity is only one of the factors and cannot alone be
decisive proof of dominance.101 It is generally recognised that the
structure/conduct/performance model (and therefore, market shares)
have little predictive power for whether a firm has substantial market
power.102
¶77. The intention of the legislature was never to prescribe market
share as a conclusive test of dominance.103 Consequently, though
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market share is a major factor, it cannot be the sole yardstick and a

number of other factors would play a pivotal role in the determination
of market power or dominance.104 Moreover, consistently high market
share may also be the result of a firm's ability to stay ahead of its rivals
through constant innovation and development of products that appeal
to the consumers.
¶78. In the present case, it is only given that Acanti is the ‘most
extensively used’ but this not sufficient and since, undisputed data is
not available regarding Celestial's market share in the relevant market,
Acanti cannot be held a dominant firm Acanti's market power is also
diluted as there are no entry barriers in the relevant market because of
the availability of a wide number of alternatives for users that are
accessible in the relevant geographic market demonstrate
competition.105
¶79. Also, when identifying possible barriers to expansion and entry
it is important to focus on whether rivals can reasonably replicate
circumstances that give advantages to the allegedly dominant
undertaking.106 Lastly, the market is also characterized by evolving
technology and is in a dynamic stage and therefore, interference by the
CCUK would not be justified.107
2. Acanti cannot operate independently of other market forces
¶80. Acanti has several competitor's applications against it in the
market. As a matter of fact, there is data available showing that there
was a surge in the quantum of download of their competitor's
applications i.e., Hetecom and Quingle after announcement of the
policy update.108 In Kapoor Glass Pvt Ltd v. CCI109 that Section 4(2)(c)
does not apply where alternative means of supply exist. Thus, Acanti
cannot be held dominant under Section 4(2)(c) as there are
alternatives available.
¶81. Hence taking into consideration the dynamic market construct
it does not appear that any one platform can occupy a dominant
position in the relevant market as envisaged under Section 4 of the Act.
Especially, since, users can switch to rivals with a single click provides
an additional reason why Acanti cannot act independently of market
forces.110
B. In Arguendo, Acanti has not abused its dominant position
¶82. It is humbly submitted that even if it is assumed that Acanti is
dominant in relevant market, still Acanti has not abused its dominant
position as (1) Acanti did not indirectly impose unfair and
discriminatory condition in its services, (2) There is no predatory
pricing and (3) Acanti has not denied market access.
1. Acanti did not indirectly impose unfair and discriminatory
condition in its services
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¶83. Section 4(2)(a)(i)111 of the Act declares that a dominant

enterprise or group would be held to abuse its dominant position if it
imposes unfair or discriminatory condition in purchase or sale of goods
or services.112 Abuse of dominance is judged in terms of specified acts
committed by a dominant enterprise.113
¶84. The term “service” is defined under Section 2(u) as service any
description which is made available to potential users and includes the
provision of services in connection with business of any industrial or
commercial matters. It is clear that the meaning of ‘service’ as
envisaged under the Act is of a very wide magnitude and is not
exhaustive in application.114 Since, Acanti provides service through its
app, hence, it is a service provider.
¶85. The term ‘unfair’ has not been defined in the Act.115 It has to
be examined either in the context of unfairness in relation to
customers, or in relation to a competitor.116 Acanti, if assumed, is
dominant then it will fall in the category of ‘no-fault monopolies’117
because it gained its dominant position without engaging in unfair
trade practices and because it provided superior products.
¶86. In Vinod Gupta118 the existence of ‘user choice’ was used as a
test to determine whether or not the actions taken by WhatsApp
amounted to the imposition of unfair terms or conditions on the user.
Acanti users have the option to delete the app and this user choice is
not hampered by Acanti in any way. Acanti has clearly laid that it will
delete all information that is no longer need to operate or provide
Services when user deletes his Acanti Account.119
¶87. Acanti through its privacy policy has merely laid down that it
will share users' account information with Bluetick and all its group
companies to improve Bluetick's advertisements and product
experiences.120 Such a policy is standard for businesses like Acanti to
provide the best product experience to its users as this provides them
with a revenue source in addition to diagnostic processing support.121
¶88. Moreover, it is not unfair as Acanti does not share any sensitive
personal chat. Acanti employs end-to-end encryption which means that
user messages are encrypted to protect against Acanti and third parties
from reading them.122 Hence, Acanti is not unfairly forcing users to give
up their right to privacy as laid down in DPDP Act in order to use its
services.
2. There is no predatory pricing
¶89. It is humbly submitted that Acanti is not indulged in Predatory
Pricing. Zero-pricing, as used by Acanti, does not amount to predatory
pricing as such service providers earn revenue from their services and
are hence able to provide the service free.123 Moreover, users retain the
option to shift to other messaging services and the fact that Acanti is
free does not act as an deterrent to the same.
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3. Acanti has not denied market access

¶90. Section 4(2)(c) of the Competition Act provides that there shall
be an abuse of dominant position if the dominant undertaking indulges
in practice or practices resulting in denial of market access in any
manner.124
¶91. When an enterprise with dominance in the relevant market
controls an infrastructure or a facility that is necessary for accessing the
market and which is neither easily reproducible at a reasonable cost in
the short term nor interchangeable with other products/services, the
enterprise may not without sound justification refuse to share it with its
competitors at reasonable cost.125 This has come to be known as the
essential facility doctrine (EFD).126 The EFD was recognized by the
Commission in the Arshiya Rail Infrastructure127 and Shamsher
Kataria.128
¶92. No such EFD exist in relevant market of Acanti. The only unique
feature Acanti employs is end-to-end encryption which is actually in
favour of users as it safeguards their personal data. Moreover, it is a
fact that there was a surge in downloads of Quingle and Hetecom when
change in policy was announced.129 This is indicative that there is
plenty market access and high competition.
-PRAYER-
Wherefore, in the lights of the facts stated, issues raised, arguments
advanced, reasons given and authorities cited, it is most humbly
prayed and implored before the Hon'ble Supreme Court of Union of
Kennedy, that it may be graciously pleased to adjudge, declare and
hold the following:
I. That Sections 8, 18, 19, 22 of the DPDP Act are constitutionally
violative of Fundamental Rights.
II. That the usage of Unicorn spyware by the Government is violative
of Fundamental Rights.
III. That the absence of an opt-out option for sharing data with the
parent company by bluetick is not unlawful.
IV. That recent update in the terms and conditions by bluetick is not
violative of the provision of the Competition Act, 2000.
And pass any other order, direction, or relief that this Hon'ble court
may be pleased to grant in the interests of justice, equity and good
conscience.
For this Act of kindness, the petitioners as is duty bound shall ever
pray.
———
1 Digital Personal Data Protection Act, 2022, § 8, No. __, Acts of Parliament, 2022 (India).
2 Common Cause (A Registered Society) v. Union of India, (1996) 2 SCC 752.

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3 Digital Personal Data Protection Act, 2022, § 8(6), No. __, Acts of Parliament, 2022 (India).
6
M. Venugopal Reddy v. Trans Union CIBIL Limited, 2018 SCC OnLine CCI 100.
7
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
8 The issues with ‘deemed consent’ for credit scoring : Issues considered, MEDIANAMA (Jan
13, 2023), https://www.medianama.com/2023/01/223-deemed-consent-credit-scoring-data-
protection-bill-2022/.
9 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
10
S.P. Gupta v. Union of India, 1981 Supp SCC 87.
12 Personal Data Protection Bill, 2019, cl. 14 (2)(December 11, 2019)(India).
13 Vishaka v. State of Rajasthan, (1997) 6 SCC 241; District Registrar and Collector v.
Canara Bank, (2005) 1 SCC 496.
14
Digital Personal Data Protection Act, 2022, § 18(2), No. __, Acts of Parliament, 2022
(India).
15 Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
16
17 Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.
18
Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.
19 Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
20
Sri Vasunathan v. The Registrar General, 2017 SCC OnLine Kar 424.
23
Digital Personal Data Protection Act, 2022, § 19(3), No. __, Acts of Parliament, 2022
(India).
24 Union of India v. R Gandhi, (2010) 11 SCC 1.
25 S.P. Gupta v. Union of India, 1981 Supp SCC 87; K. Veeraswami v. Union of India, (1991) 3
SCC 655.
26
S. Madhusudan Reddy v. V. Narayana Reddy, 2022 SCC Online SC 1034; Moran Mar
Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, (1955) 1 SCR 520.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
27 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1; N.S. NAPPINAI,
TECHNOLOGY LAWS DECODED, Lexis Nexis 2017.
28 Kharak Singh v. State of U.P., (1964) 1 SCR 332; M Nagaraj v. Union of India, (2006) 8
SCC 212; Directorate of Revenue v. Mohd. Nisar Holia, (2008) 2 SCC 370.
29
Mohd. Arif v. Registrar, Supreme Court of India, (2014) 9 SCC 737.
31
Digital Personal Data Protection Act, 2022, § 6, No. __, Acts of Parliament, 2022 (India).
32
Digital Personal Data Protection Act, 2022, § 7, No. __, Acts of Parliament, 2022 (India).
33 Moot Proposition, ¶ 12.
35
Registrar of Companies v. Dharmendra Kumar Garg, 2012 SCC OnLine Del 3263.
36 Information Technology Act, 2000, § 43(a), No. 21, Acts of Parliament, 2000 (India).
37 Information Technology Act, 2000, § 43(b), No. 21, Acts of Parliament, 2000 (India).
38
Information Technology Act, 2000, § 43(c), No. 21, Acts of Parliament, 2000 (India).
39 Information Technology Act, 2000, § 43(d), No. 21, Acts of Parliament, 2000 (India).
40
Rahul Chowdhary v. State of Telangana, 2022 SCC OnLine TS 2387.
41
Information Technology Act, 2000, § 69, No. 21, Acts of Parliament, 2000 (India).
42
Information Technology Act, 2000, § 69(2), No. 21, Acts of Parliament, 2000 (India).
43 Telegraph Act, 1885, § 5, No. 13, Acts of Parliament, 1885 (India); State of Maharashtra
v. Bharat Shanti Lal Shah, (2008) 13 SCC 5.
44
Indian Telegraph (Amendment) Rules, 2007, Rule 419A, Department of Telecommunications,
2007 (India).
45 Telegraph Act, 1885, § 5(2), No. 13, Acts of Parliament, 1885 (India).
46 People's Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301.
47
Supreme Court of India v. Subhash Chandra Agrawal, (2011) 1 SCC 496; State of Madras
v. V.G. Row, (1952) 1 SCC 410 : 1952 SCR 597.
48 Ram Jethmalani v. Union of India, (2011) 8 SCC 1; R.C. Cooper v. Union of India, (1970) 1
SCC 248 : AIR 1970 SC 564.
49 Jeeja Ghosh v. Union of India, (2016) 7 SCC 761.
50
INDIA CONST. art. 19(1)(a).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
51 Indian Express Newspapers (Bombay)(P) Ltd. v. Union of India, (1985) 1 SCC 641.
52 People's Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301.
53
INDIA CONST. art. 19(1)(d).
54 Kharak Singh v. State of U.P., (1964) 1 SCR 332.
55 INDIA CONST. art. 19(1)(g).
56
Moot Proposition, ¶ 12.
57 Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.
58
59
Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353.
60 Binoy Viswam v. Union of India, (2017) 7 SCC 59; Bishambhar Dayal Chandra Mohan v.
State of U.P., (1982) 1 SCC 39.
61 INDIA CONST. art. 19(6).
62
Carpenter v. United States, 138 S.Ct. 2206 (2018).
63 R.C. Cooper v. Union of India, (1970) 1 SCC 248 : AIR 1970 SC 564; Maneka Gandhi v.
Union of India, (1978) 1 SCC 248.
64 Gobind v. State of Madhya Pradesh, (1975) 3 SCR 946; R. Rajagopal v. State of T.N.,
(1994) 6 SCC 632; PUCL v. Union of India, (1997) 1 SCC 301; ‘X’ v. Hospital ‘Z’, (1998) 8 SCC
296; Sharda v. Dharmpal, (2003) 4 SCC 493; Manoj Narula v. UOI, (2014) 9 SCC 1; Asha
Ranjan v. State of Bihar, (2017) 4 SCC 397.
65
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1; 2nd Ed. VINOD DHALL,
COMPETITION LAW TODAY : CONCEPTS, ISSUES, AND THE LAW IN PRACTICE, Oxford
University Press 2019.
67 The Digital Personal Data Protection Act, 2022, § 2(5), No. __, Acts of Parliament, (India).
68 The Digital Personal Data Protection Act, 2022, § 13, No. __, Acts of Parliament, (India).
69 The Digital Personal Data Protection Act, 2022, § 7, No. __, Acts of Parliament, (India).
70 Information Commissioner's Office (Guide), Guide to the GDPR : Principles : Lawfulness,

Fairness and Transparency, https://ico.org.uk/for-organisations/guide-to-data-protection/.
71 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1; District Registrar &
Collector v. Canara Bank, (2005) 1 SCC 496.
72 General Data Protection Regulation, 2016, art. 7 (European Union).
73
Orange România SA v. Autoritatea Naţională, (2020) C-61/19, Court of Justice of the EU;
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Bundesverband v. Planet 49 GmbH, (2019) C-673/17, Court (Grand Chamber).
74 Olly Jackson, Businesses Retreating from Consent Under GDPR, International Financial Law
Review, (2018), https://www.proquest.com/docview/2035197430.
75 Annexure 2, cl. 1.
76 Karmanya Singh Sareen v. Union of India, 2017 SCC OnLine SC 434.
77
Annexure 2, cl. 6.
78 Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, (1986) 3 SCC
156 : AIR 1986 SC 1571.
79 Lilly White v. Mannu Swami, AIR 1966 Mad 13; AGM v. Radhey Shaym Pandey, (2020) 6
SCC 438.
80 M.P., Ram Mohan and Murugavelu, Promode and Ray, Gaurav and Jain, Anmol, Indian Law
on Standard Form Contracts, 62 JILI (2020) 413, http://dx.doi.org/10.2139/ssrn.3892293.
81 Mark Taylor and Jeannie Paterson, Protecting Privacy in India : The Roles of Consent and
Fairness in Data Protection, 16.1 IJLT (2020) 71, https://www.ijlt.in/journal/protecting-
privacy-in-india%3A-the-roles-of-consent-and- fairness-in-data-protection.
82
Annexure 2.
86 Karmanya Singh Sareen v. Union of India, 2017 SCC OnLine SC 434.
88 The Digital Personal Data Protection Act, 2022, § 9(3) & (4), No. __, Acts of Parliament,
(India).
90 Cochin Institute of Science & Technology v. Jisin Jijo, 2019 SCC OnLine Ker 1800; Charles
Katz v. United States, 1967 SCC OnLine US SC 248.
92 The Competition Act, 2002, § 2(r), No. 12, Acts of Parliament, 2003 (India).
93 The Competition Act, 2002, § 19(4), No. 12, Acts of Parliament, 2003 (India).
94 The Competition Act, 2002, § 4, No. 12, Acts of Parliament, 2003 (India).
95 The Competition Act, 2002, § 19(5), No. 12, Acts of Parliament, 2003 (India).
96
The Competition Act, 2002, § 2(t), No. 12, Acts of Parliament, 2003 (India).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
97
United Brands Co. v. Commission, 1978 ECR 207, (ECJ); Hoffmann-La Roche & Co. AG v.
Commission, 1979 ECR 461, (ECJ); US in Berkey Photo v. Eastman Kodak Co., 603 F. 2d 263
(1979).
99 Harshita Chawla v. WhatsApp, 2020 SCC OnLine CCI 32.
100 Exclusive Motors (P) Ltd. v. Automobili Lamborghini SPA, (2014) 121 CLA 230 (CAT); Shri
Pravahan Mohanty v. HDFC Bank Ltd. and Card Services Division of the HDFC Bank, Case No.
17 of 2010 (CCI).
101 Ramakant Kini v. Dr. L.H. Hiranandani Hospital, 2014 SCC OnLine CCI 15; Belaire Owner's
Association v. DLF Limited, 2011 SCC OnLine CCI 89; Manoj K. Sheth v. National Stock
Exchange of India Ltd., 2021 SCC OnLine CCI 38; M/s HNG Stock Exchange of India Ltd. v.
Competition Commission of India, 2014 Comp LR 304.
102
William M. Landes & Richard A. Posner, Market Power in Antitrust Cases, 94 Harv. L. Rev.
937 (1981), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?
article=2551&context=journal_articles.
103 Sponge Iron Manufacturers Association v. National Mineral Development Corporation,

2013 SCC OnLine CCI 19.
104 ABIR ROY, COMPETITION LAW IN INDIA : A PRACTICAL GUIDE (2nd ed. 2016).
105 Sunil Bansal v. Jaiprakash Associates Ltd., 2015 Comp LR 1009 (CCI).
106 DG Competition, Application of Art 82 of the Treaty to exclusionary abuses, (2005),

http://europa.eu.int/comm/competition/antitrust/ others/discpaper2005.pdf.
107 Fast Track Call Cabs (P) Ltd. v. CCI, 2016 SCC OnLine Comp AT 89.
108
109 Kapoor Glass (India) Private Limited v. Schott Glass India Private Limited, 2012 SCC
OnLine CCI 16.
110 Matrimony.com Limited v. Google LLC, 2018 SCC OnLine CCI 1.
111
The Competition Act, 2002, § 4(2)(a)(i), No. 12, Acts of Parliament, 2003 (India).
112 DLF Limited v. Competition Commission of India, 2014 Comp LR 1.
113 Jupiter Gaming Solutions Private Limited v. Government of Goa, (2012) 106 CLA 339
(CCI).
114 Sunil Bansal v. Jaiprakash Associates Ltd., 2015 Comp LR 1009 (CCI).
115 MCX Stock Exchange Ltd. v. NSE India Ltd, Case No. 13/2009 (CCI).
116 MCX Stock Exchange Ltd. v. NSE India Ltd, Case No. 13/2009 (CCI).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
117 Marina Lao, No-Fault Digital Platform Monopolization, 61 Wm. & Mary L. Rev. 755 (2020),
https://scholarship.law.wm.edu/wmlr/vol61/iss3/4.
118 Vinod Gupta v. WhatsApp, Case No. 99 of 2016, (CCI).
120
121 Collis, David, Ashley Hartman and Aakash Mehta, $19B 4 txt app WhatsApp…omg!,
HARVARD BUSINESS SCHOOL Case 715-441, (January 2015),
https://www.hbs.edu/faculty/Pages/item.aspx?num=48458.
123
Vinod Gupta v. WhatsApp, Case No. 99 of 2016, (CCI).
124 The Competition Act, 2002, § 2(r), No. 12, Acts of Parliament, 2003 (India).
125
The Essential Facilities Concept, OECD,
http://www.oecd.org/competition/abuse/1920021.pdf; United States v. Terminal R.R. Ass'n
of St. Louis, 224 US 383 (1912).
126
MCI Communications Corporation v. AT&T, 708 F. 2d 1081, 1132 (7th Cir. 1983).
127 Arshiya Rail Infrastructure Ltd (ARIL) v. Ministry of Railways, (2013) 112 CLA 297 (CCI).
128
Shamsher Kataria (Informant) v. Honda Siel Cars India Ltd, 2014 Comp LR 1 (CCI).
129
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
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SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Monday, January 22, 2024

13th SLCU National Moot, 2023

B. Section 18 is violative of Fundamental 3

13. Harshita Chawla v. WhatsApp, 2020 SCC 16

35. Supreme Court of India v. Subhash Chandra 9

13. Shamsher Kataria (Informant) v. Honda Siel 20

1. Collis, David, Ashley Hartman and Aakash Mehta, $19B 20

Members of Legislative Assemblies (MLAs) to the NPP. Moreover, there

Protection Act, 2022 is violative of Fundamental Rights

update by Bluetick do not violate the provisions of the Competition Act,

raise privacy concerns as individuals may not be aware of how their

1. The instrumentalities of the state should not be exempted

¶19. There ought to be exceptions to this right in light of the

¶39. Howbeit, it is submitted that this activity falls entirely beyond

cameras of their mobile phones and access words typed by them in

¶45. The unfair and arbitrary means of surveillance by the

8 and (3) The policy is compliant of General Obligations.

possibility of the exercise of informed agency. Per se, such ‘take-it-or-

the recent update by bluetick do not violate the provisions of the

market share is a major factor, it cannot be the sole yardstick and a

¶83. Section 4(2)(a)(i)111 of the Act declares that a dominant

3. Acanti has not denied market access

2 Common Cause (A Registered Society) v. Union of India, (1996) 2 SCC 752.

9 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

11 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

12 Personal Data Protection Bill, 2019, cl. 14 (2)(December 11, 2019)(India).

15 Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

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

19 Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

21 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

22 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

24 Union of India v. R Gandhi, (2010) 11 SCC 1.

33 Moot Proposition, ¶ 12.

49 Jeeja Ghosh v. Union of India, (2016) 7 SCC 761.

54 Kharak Singh v. State of U.P., (1964) 1 SCR 332.

55 INDIA CONST. art. 19(1)(g).

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

61 INDIA CONST. art. 19(6).

70 Information Commissioner's Office (Guide), Guide to the GDPR : Principles : Lawfulness,

72 General Data Protection Regulation, 2016, art. 7 (European Union).

Bundesverband v. Planet 49 GmbH, (2019) C-673/17, Court (Grand Chamber).

76 Karmanya Singh Sareen v. Union of India, 2017 SCC OnLine SC 434.

86 Karmanya Singh Sareen v. Union of India, 2017 SCC OnLine SC 434.

89 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

99 Harshita Chawla v. WhatsApp, 2020 SCC OnLine CCI 32.

103 Sponge Iron Manufacturers Association v. National Mineral Development Corporation,

106 DG Competition, Application of Art 82 of the Treaty to exclusionary abuses, (2005),

110 Matrimony.com Limited v. Google LLC, 2018 SCC OnLine CCI 1.

112 DLF Limited v. Competition Commission of India, 2014 Comp LR 1.

118 Vinod Gupta v. WhatsApp, Case No. 99 of 2016, (CCI).

119 Annexure 2, cl. 6.

122 Annexure 2, cl. 1.

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