BEFORE HIGH COURT

UNDER ARTICLE 226 OF THE CONSTITUTION

-In the matter of-

SUNANDA …………Petitioner

VERSUS

1. HAPPY IS HEALTHY …………Respondent

2. MARY

MEMORIAL MOST HUMBLY AND RESPECTFULLY SUBMITTED ON

BEHALF OF THE RESPONDENT

Counsel for the Respondent:

Astha Mishra

Section B

Roll No. 565

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TABLE OF CONTENTS

1. ABBREVIATIONS……………………………………………………………………….3
2. INDEX OF AUTHORITIES……………………………………………………………3-4
i. Statutes………………………………………………………………………………….4
ii. Books Referred…………………………………………………………………………4
3. STATEMENT OF JURISDICTION………………………………………………………..5
4. STATEMENT OF FACTS………………………………………………………………...6
5. STATEMENT OF ISSUES………………………………………………………………..7
6. SUMMARY OF ARGUMENTS…………………………………………………………...7
7. ARGUMENTS ADVANCED…………………………………………………………08-13
8. PRAYER………………………………………………………………………………14

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 TABLE OF ABBREVIATIONS

1. AO - Adjudicating Officer
2. AIR - All India Reporter
3. Cal. - Calcutta
4. Ltd. - Limited
5. Ors. - Others
6. Pg. - page number
7. Punj. - Punjab
8. S. - Section
9. S.C. - Supreme Court
10. S.C.R. - Supreme Court Record
11. SOT - Select Order of Tribunals
12. V. - Versus
13. Vol. - Volume

AUTHORITIES CITED

Books referred :
 P.M. Bakshi, The Constitution of India, 1950, Bare Act, Universal Law Publishing Co.
 H. M. Seervai, Constitutional Law of India, Volume I, 4th Edition, Universal Law
Publishing & Co.
 M.P. Jain, Indian Constitutional Law, 7th Edition, LexisNexis.
 Dr. Durga Das Basu, Shortest Constitution of India, Volume I, 15th Edition, LexisNexis
Butterworths Wadhwa Nagpur.
 Dr. Durga Das Basu, Introduction to the Constitution of India, 20th Edition Reprint 2010,
LexisNexis Butterworths Wadhwa Nagpur.

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  V.N.Shukla’s, Constitution of India, 12the Edition by Mahinder P.Singh, Eastern Book
Company.

Websites:
 www.manupatra.com
 www.westlaw.in
 www.lawyersclubindia.com

Statutes:
 Constitution of India, 1950
 Information Technology, 2000
 Mental HealthCare Act, 2017

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 STATEMENT OF JURISDCTION

The counsel for the respondent most humbly submits this memorandum in response to the petition
filed by the petitioners under Article 2261 of the Constitution. The Respondent submits that the
present petition is not maintainable before this court.

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226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation
to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part
III and for any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person
may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause
of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government
or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is
made on, or in any proceedings relating to, a petition under clause ( 1 ), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order;
and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such
order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel
of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it
is received or from the date on which the copy of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High
Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as
the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the
Supreme court by clause ( 2 ) of Article 32

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 STATEMENT OF FACTS

Albert was having a great life. He had recently proposed marriage to a his childhood sweetheart,
Mary. This would be his second marriage, so all fingers crossed that things would work out. The
only thorn in his side was his first marriage which was not yet annulled. His (ex-)wife, Sunanda,
had so far refused to sign the divorce papers for an amicable dissolution of their marriage.
Nimesh, a lawyer friend of Albert’s, suggested that if Albert wanted to really get out of the
marriage, he could give the court some proof that Sunanda was insane. ‘Anyway,’ Nimesh joked,
‘she has to be crazy to want to stay married to you!’ Albert appreciated that since their separation
Sunanda had been responsibly getting help for fighting depression and he did not want to air her
dirty laundry in public. He relayed this little incident to his now fiancé, Mary.

Mary, unsympathetic towards the woman who had made Albert’s life difficult, did not find
Nimesh’s jocular suggestion as preposterous as Albert had. Taking matters into her hands, she
called up her sister, Sarah, who was a receptionist-cum-data entry operator at the Psychiatist’s
clinic, Happy is Healthy, that Sunanda visited twice a month. Sarah was as excited by her sister’s
scheme to be rid of this little hurdle and get married to the love of her life. She logged into the
patient information database and printed out Sunanda's prescription and doctor’s notes regarding
the patient’s response to those medications. Sarah handed this to Mary, who gave it to Albert’s
lawyer, who filed a petition for a contested divorce. During mediation proceedings, Mary came
to know that Albert had submitted her prescription etc. to the court. She was exceedingly hurt.
Finally deciding that she did not wish to stay married to such a man, she agreed to sign the
papers for divorce by mutual consent. Albert, consequently, agreed to withdraw the petition for
contested divorce.

While these petitions were being resolved, Albert was shocked to discover that Mary, along with
Happy is Healthy Clinic, had been sued by Sunanda for breach of data privacy under the IT Act
and associated punitive provisions.

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 STATEMENT OF ISSUE

1. Whether the present petition filed before the Hon’ble High Court is maintainable ?
2. Whether there has been a breach of data privacy under the IT Act?

SUMMARY OF ARGUMENTS

1. Whether the present petition filed before the Hon’ble High Court is maintainable ?
It is humbly submitted before this court that the present petition is not maintainable under
Art. 226 of the Indian constitution, as an alternative remedy exists. Rather the court may
refer the matter back to the AO was evaluation.
2. Whether there has been a breach of data privacy under the IT Act?
2.1 That the psychiatric clinic Happy is health is not liable under the IT act.
2.2 That Mary is also not liable under the IT Act.

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 ARGUMENT ADVANCED

THAT THE PRESENT COMPLAINT IS NOT BEFORE THE HIGH COURT

It is humbly contended before this court that the present petition filed under section 226 of the
Indian Constitution is not maintainable before this court. The IT provides the Authority to hear
complaints for the breach or violation of IT Act to the Adjudicating Officer under section 46 of
the IT Act.

Section 46 of the Act grants the Central Government the power to appoint an adjudicating officer
to hold an enquiry to adjudge, upon complaints being filed before that adjudicating officer,
contraventions of the Act. The adjudicating officer may be of the Central Government or of the
State Government [see section 46(1) of the Act], must have field experience with information
technology and law [see section 46(3) of the Act] and exercises jurisdiction over claims for
damages up to `5,00,00,000 [see section 46(1A) of the Act]. For the purpose of adjudication, the
officer is vested with certain powers of a civil court [see section 46(5) of the Act] and must
follow basic principles of natural justice while conducting adjudications [see section 46(2) of the
Act]. Hence, the adjudicating officer appointed under section 46 is a quasi-judicial authority.

In addition, the quasi-judicial adjudicating officer may impose penalties, thereby vesting him
with some of the powers of a criminal court [see section 46(2) of the Act], and award
compensation, the quantum of which is to be determined after taking into account factors
including unfair advantage, loss and repeat offences [see section 47 of the Act]. The adjudicating
officer may impose penalties for any of the offences described in section 43, section 44 and
section 45 of the Act; and, further, may award compensation for losses suffered as a result of
contraventions of section 43 and section 43A.

It is clear that the adjudicating officer is vested with significant judicial powers, including the
power to enforce certain criminal penalties, and is an important quasi-judicial authority.

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THAT THE PSYCHIATIST’S CLINIC, HAPPY IS HEALTHY AND MARY IS LIABLE
FOR THE BREACH OF PERSONAL DATA

It is humbly submitted by the counsel for the Respondent that under the present circumstances,
the clinic is not liable for the breach of data privacy. The counsel shall be relying on the
following arguments in order to justify the same. Firstly, the clinic which is an intermediary,
took necessary measures to protect the data. Secondly, even if the contrary is proved the counsel
argues that the Mental Healthcare Act, 2017 allows the depositor to disclose in order to balance
the rights with the competing rights and interests.

1. The clinic which is an intermediary, took necessary measures to protect the data as per
the IT Rules2.
It is humbly submitted that Happy is health, is an intermediary3.
A data controller shall secure personal information that they either collected or have in their
custody, by reasonable security safeguards against loss, unauthorized access, destruction,
use, processing, storage, modification, or unauthorized disclosure [ either accidental or
incidental] or other reasonable foreseeable risks.
The security principles ensures that data controllers put in place the necessary technical,
administrative and physical safeguards for protecting personal information in their custody
from unauthorized use, destruction, modification, access, and retention.
The counsel submits that as per S. 43A of the IT Act4, 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 any person,

2
Information Technology (Reasonable security practices and procedures and sensitive personal data or information)
Rules, 2011 available at http://www.mit.gov.in/sites/upload_files/dit/ files/RNUS_CyberLaw_15411.pdf (last visited
February 18, 2012) (‘Information Technology Rules, 2011’).
3
Section 2 (w) of the Information Technology Act,2000 (IT Act, 2000) defines Intermediaries as - “intermediary”,
with respect to any particular electronic records, means any person who on behalf of another person receives, stores
or transmits that record or provides any service with respect to that record and includes Telecom service providers,
network service providers, internet service providers, web-hosting service providers, search engines, online payment
sites, online-auction sites, online-market places and cyber cafes
4
43A. Compensation for failure to protect data.–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 any person, such body corporate shall be liable to pay damages by way of compensation to the
person so affected.

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 such body corporate shall be liable to pay damages by way of compensation to the person so
affected. Rules 6, 7 and 8 of the IT Rules, outline disclosure and security requirements in
handling sensitive personal data (‘SPD’).5
In the present matter, Happy is health had a detailed privacy protocol which was issued to its
staff. They conducted Privacy and Confidentiality Workshops in order to ensure that staff
understands the importance of maintaining client confidentiality.
Further, the breach of Data took place at a time when Sarah was on leave and thus was not in
the course of employment of the Clinic. Thus for the act of Sarah, the Clinic cannot be made
liable.
Moreover, as and when the clinic came to know that the breach of confidentiality and privacy
could have been done by Sarah, they fired her from her job.
As stated in the IT Act u/s. 79 (2)(C)6 of the Act mandates the intermediary to observe due
diligence while discharging its duties under the Act and to observe such other guidelines as
prescribed by the Central government in this behalf.
Moreover, as per the Intermediaries Rules 2011, Rule 3 provides that the intermediary must
observe due diligence while discharging his duties.
Rule 3 (3) The intermediary shall not knowingly host or publish any information or shall not
initiate the transmission, select the receiver of transmission, and select or modify the
information

5
Information Technology (Reasonable security practices and procedures and sensitive personal data or information)
Rules, 2011 available at http://www.mit.gov.in/sites/upload_files/dit/ files/RNUS_CyberLaw_15411.pdf (last visited
February 18, 2012) (‘Information Technology Rules, 2011’).
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S. 79. Exemption from liability of intermediary in certain cases.–(1) Notwithstanding anything contained in any
law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be
liable for any third party information, data, or communication link made available or hosted by him. (2) The
provisions of sub-section (1) shall apply if– (a) the function of the intermediary is limited to providing access to a
communication system over which information made available by third parties is transmitted or temporarily stored
or hosted; or (b) the intermediary does not– (i) initiate the transmission, (ii) select the receiver of the transmission,
and (iii) select or modify the information contained in the transmission; (c) the intermediary observes due diligence
while discharging his duties under this Act and also observes such other guidelines as the Central Government may
prescribe in this behalf. (3) The provisions of sub-section (1) shall not apply if– (a) the intermediary has conspired
or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act; (b)
upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any
information, data or communication link residing in or connected to a computer resource controlled by the
intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable
access to that material on that resource without vitiating the evidence in any manner. Explanation.–For the purposes
of this section, the expression ―third party information‖ means any information dealt with by an intermediary in his
capacity as an intermediary.

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 Rule 3 (8) The intermediary shall take all reasonable measures to secure its computer
resource and information contained therein following the reasonable security practices and
procedures as prescribed in the Information Technology (Reasonable security practices and
procedures and sensitive personal Information) Rules, 2011.

Balancing the Right with Competing Rights and Interests

2. Mental healthcare Act, 2017 allows the depositor to disclose in order to balance the
rights with the competing rights and interests.

THE MENTAL HEALTHCARE ACT, 2017

Section 25. (1) All persons with mental illness shall have the right to access their basic medical
records as may be prescribed. (2) The mental health professional in charge of such records may
withhold specific information in the medical records if disclosure would result in,––

(a) serious mental harm to the person with mental illness; or

(b) likelihood of harm to other persons.7

3. Processing for the purpose of legal proceedings is a valid ground for unauthorized access
to sensitive personal data.

Non-disclosure provisions in the data protection law will be inapplicable to disclosure of

personal data necessary for enforcing any legal right or claim, for seeking any relief, defending
any charge, opposing any claim, or obtaining legal advice from an advocate in an impending
legal proceeding.

The rationale for exempting the disclosure of personal data in the pursuance of legal claims is to
allow data principals to effectively exercise their legal rights under general law, including the
ability to take legal advice from advocates. Applying the obligations under the proposed data
protection law may obstruct the realisation of such rights.

7
https://www.prsindia.org/uploads/media/Mental%20Health/Mental%20Healthcare%20Act,%202017.pdf

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Further, processing of personal data by any court or tribunal in India necessary for the exercise
of any judicial function will be exempted. This is to cover instances of processing by courts in
the performance of their judicial function of resolving disputes brought before it.

Scope

Under the Indian data protection law, disclosure of personal data and sensitive personal data in
pursuance of a legal claim would occur if it is required to be produced in connection with any
legal proceeding (including in preparation for a legal proceeding to be initiated in the future), or
where required to establish, exercise or defend legal rights; or where it is required to be brought
to the attention of an advocate for seeking legal advice for an impending legal proceeding.
Additionally, processing of personal data by any court or tribunal necessary for the exercise of
judicial function shall be exempted.

(c) Application of Obligations

For both disclosure of personal data in pursuance of legal claims and seeking legal advice, as
well as processing by any court or tribunal in India for the exercise of any judicial function, the
data protection obligations of consent, notice, data principal rights and accuracy will not apply as
they may hamper the meaningful exercise of legal rights. However, general obligations with
regard to security safeguards and fair and reasonable processing will continue to apply. 8

The Amit Patwardhan9 complaint was filed against the complainant’s ex-employer – the
respondent, for illegally obtaining copies of the complainant’s bank account statement. The
complainant had left the employ of the respondent to work with a competing business company
but not before colluding with the competing business company and diverting the respondent’s
customers to them. For redress, the respondent filed suit for a decree of compensation and lead
the complainant’s bank statements in evidence to prove unlawful gratification. Since the bank
statements were obtained electronically by the respondent without the complainant’s consent, the
jurisdiction of the Adjudicating Officer was invoked. In his order of 15.04.2013, Shri Rajesh
Aggarwal, the Adjudicating Officer, found that the respondent had, by unlawfully obtaining the

8
A Free and Fair Digital Economy Protecting Privacy, Empowering Indians Committee of Experts under the
Chairmanship of Justice B.N. Srikrishna, Committee Report on Draft Data Protection Bill, 2018.
9
Amit D. Patwardhan v. Rud India Chain, 2013 This case and statistics may be viewed here –
http://it.maharashtra.gov.in/1089/IT-Act-Judgements.

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complainant’s bank account statements which constitute sensitive personal data, violated the
complainant’s privacy.

The final order found that the respondent had violated the privacy of the complainant by her
unauthorised access. However, the Adjudicating Officer found that the intent of the unauthorised
access – to obtain evidence to support a criminal proceeding – was mitigatory and hence ordered
the respondent to pay only a small token amount in compensation, not to the complainants but
instead to the State Treasury.10

3. That there has been no violation of Privacy

The Supreme Court has on several occasions emphasized that the right to privacy is not an
absolute right. Instead, the Court has chosen to adopt a case-by-case approach in the
interpretation of the right to privacy.11

“The Right to privacy is not treated as absolute and is subject to such action as may be lawfully
taken for the prevention of crime or disorder or protection of health or morals or protection of
rights and freedoms of others.”12

In the UK, there are now several statutory obligations placed on doctors to disclose information
based on the threat of harm. In the USA, there is a prima facie duty to breach confidentiality and
13
warn an identifiable victim where there is a risk of harm from a patient, In the UK, greater
evidence is likely to be required, but doctors may be found negligent for failure to disclose
confidential information when others are at potential serious risk.14

10
Vinod Kaushik v. Madhvika Joshi, 2011.
11
See Govind v. State of Madhya Pradesh, AIR 1975 SC 1378 (The Court stated that, “The right to privacy in any
event will necessarily have to go through a process of case-by-case development”)
12
Mr. X v. Hospital Z, Supreme Court of India ,[64] (1998 and 2002)
13
Tarassoff v The Regents of the University of California[1976] 17 Cal 3d 358.
14
W v Edgell [1990] 1 All ER 835.

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 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare that
1. To uphold that this form does not have the jurisdiction to entertain the present matter.
2. To refer the matter to AO.
3. To declare that Happy is Health and Mary is not liable under the IT Act and other
punitive provisions.
And/or pass any other order as the court may deem fit in the light of justice, equity and good
conscience.

And for this the Appellant may remain duty bound ever.

Counsel on behalf of Respondent

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