Respondent p7

11TH NALSAR JUSTICE B.R.
SAWHNY MEMORIAL MOOT COURT COMPETITION, 2017
TEAM CODE: P7
IN THE HONBLE SUPREME COURT OF NATRULAND
WRIT PETITION NO. ________/2017

ORIGINAL WRIT JURISDICTION
IN THE MATTER OF:
MR. GULLA
(PETITIONER)
V.
UNION OF NATRULAND & ORS.

(RESPONDENT)
&
COURT ON ITS OWN MOTION V. UNION OF NATRULAND & ORS.
AS SUBMITTED TO THE HONBLE JUSTICES OF SUPREME COURT OF

NATRULAND
MEMORIAL ON BEHALF THE RESPONDENTS
PAGE 0
-WRITTEN SUBMISSION ON BEHALF OF RESPONDENT-
11TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MOOT COURT COMPETITION, 2017
TABLE OF CONTENTS
THE INDEX OF AUTHORITIES........................................................................................2-5

THE STATEMENT OF JURISDICTION..................................................................................6
THE STATEMENT OF FACTS............................................................................................7-8
THE STATEMENT OF ISSUES.............................................................................................9
THE SUMMARY OF ARGUMENTS.................................................................................10-11
WRITTEN PLEADINGS .........................................................................................................12-32
ON MAINTAINABILITY
I. WHETHER THE WRIT PETITION IN THE PRESENT CASE IS MAINTAINABLE

BEFORE THE HONBLE SUPREME COURT OF UNION OF
NATRULAND.12-15
A. The The Supreme Court of Union of Natruland does not have jurisdiction to
entertain a transfer petition from State of Mullu.13
i. No state action involved with respect to legal injury.....13
B. The Supreme Court does not have the jurisdiction to entertain the writ petition.14
i. Right to property is not a human right14-15
ON MERITS
II. WHETHER THE RESTRICTIONS PLACED ON OUTSIDERS AND THE SPECIAL STATUS
PROVIDED FOR MULLU AND ITS RESIDENTS IS UNCONSTITUTIONAL ?..............16-

23
1. The Union of Natruland under the treaty of the Instrument of Accession has an
obligation under the customary international law to abide by the clauses of the
Instrument of Accession........16-18
A. Customary International law is part of the law of Union of Natruland vis--
vis the Blackstone doctrine of incorporation..16-18
B. Instrument of accession is a treaty between the state of Mullu and Union of
Natruland18
PAGE 1
C. Union of Natruland is bound by customary international law of Pacta sunt

servanda to abide by the obligations under the Instrument of Accession19
D. The States obligation to abide by customary international law will prevail
over the domestic law to protect human rights..20
E. Not abiding by the obligations under the Instrument of Accession in toto
results in violation of the right to self-determination.......21
2. There is no violation of right to equality of Mr. Gulla..22-23
A. The classification between the resident of Mullu and citizens of

Natruland is intelligible differentia.23
B. The classification between the resident of Mullu and citizens of
Natruland is intelligible differentia23-25
III. WHETHER THE REGISTRATION OF MINI DATA ON THE MINI SERVER BY MR.
ABHRISH NATRUKA AND THE SUBSEQUENT PROCUREMENT OF REGISTRATION FORMS
WITH MINI DATA BY MULLUWORKS AMOUNTS TO BREACH OF PRIVACY ?
25-30
1. MINI server as an Open Access model to research output. .25- 28

2. The procurement of MINI data and registration forms by Mulluworks does
not amount to violation of right to privacy..28-32
PRAYER.33
PAGE 2
INDEX OF AUTHORITIES
Case Laws
1. Prasar Bharati Broadcasting Corpn. Of India v. Debjyoti Bose, AIR 43, (Cal. HC 2000).
2. Janta Dal v. H.S. Chowdhary, 4 SCC 305, (SC: 1992).
3. S.P Gupta v. President of India, AIR 149, (SC: 1982).
4. Franz v. United States, 712 F.2d 1428 (D.C Cir.: 1983).
5. Union of India v. T.R. Varama, AIR 882, (SC: 1957)
6. Chiranjit Lal Chowdhuri v. Union of India, AIR 41, (SC: 1951).
7. Buvot v. Barbuit, (1737) Cases t. Talbot 281
8. Triquet v. Bath, (1746) 3 Burr 1478
9. Trendtex Trading Corp. v. Central Bank of Nigeria, 1 QB 529 AT 553-4 (1977).
10. The Newfoundland/Nova Scotia Arbitration Para. 3.15 (2001)
11. The Aegean Sea Continental Shelf case, ICJ Reports, pp. 3. 39; 60 ILR, p. 511 (1978).
12. Nuclear Tests cases, ICJ Reports, pp. 253, 268; 57 ILR; pp. 398, 413 (1974)
13. Nicaragua case, ICJ Reports, pp. 226, 264; 110 ILR, pp. 163, 214 (1996).
14. Gabkovo-Nagymaros Project case, ICJ Reports pp. 7, 78-9; 116 ILR, p. 1, (1997).
15. Qatar v. Bahrain case, ICJ Reports, p. 112; 102 ILR, p. 1 (1994).
16. Netherlands v. Sweden, ICJ Reports, p. 141, (1958) (dissenting Cordova J.).
17. Western Sahara,ICJ Rep 12 ,para.59 (1975).
18. Kumari Chitra Ghosh and Another v. Union of India and Others, 2 SCC 228, (SC: 1969).
19. In re Special Courts Bill, 1SCC 380, (SC: 1979).
20. Laxmi Khandsari v. State of Uttar Pradesh, 2 SCC 600, (SC: 1981).
21. Union of India v. M.V. Valliappan, 6 SCC 259, (SC: 1999).
22. Deepak Sibal v. Punjab University, 2 SCC 145, (SC: 1989).
23. Volker and Markus Schecke GbR v Land Hessen All ER (EC), 127 (2012).
24. Eifert v Land Hessenn All ER (EC), 127 (2012).
25. MacKenzie v.Canada (Department of National Health and Welfare) 88 F.T.R 52, (1994).
26. Clubb v. Saanichn 35 Admin LR, (2d) 309(1996).
27. RJR MacDonald Inc v. Canada (Attorney General) 1 SCR 311, (1994).
28. Edwards v UK, 35 EHRR 487, (2002).
29. Justice K S Puttaswamy (Retd.) v. Union of India & Ors. SCC OnLine SC 996, (2017).
30. Handyside v. the United Kingdom, 5 ECHR (1976).
31. Silver v. the United Kingdom, 5 EHRR 347(1983).
32. Lingens v. Austria, 8 EHRR 407(1986).
33. State of Punjab v Ram Lubhaya Bagga 4 SCC 117, (1998.
34. Paschim Banga Khet Mazdoor Samity & ors v. State of West Bengal & Ors, 4 SCC 37, (1996.
PAGE 3
Statutes
1. International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171.
2. International Covenant on Economic, Social and Cultural Rights, Dec. 19, 1966, 998
U.N.T.S. 3.
3. Vienna Convention on Succession of Treaties, art. 31(1)
4. Vienna Convention 1969, art.26, 27 & 46.
5. Universal Declaration of Human Rights
International Documents
1. G.A. Res. 45/98, U.N. Doc. A/RES/45/98 (1990).
2. Luis Valencia Rodriguez, Independent Expert Report, The Right of Everyone to Own
Property Alone as Well as in Association with Others 90, U.N. Commn on Human Rights,
U.N. Doc. E/CN.4/1994/19 (1993).
3. Third US Restatement of Foreign Relations Law, Washington, vol. I, Page 149 (1987).
4. The Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among States United Nations General Assembly Resolution 2625.
5. Douwe Korff Comparative Study of Different Approaches to EU privacy challenges,
European Commission (2010)
6. European Data Protection Supervisor, Necessity and
Proportionality,https://edps.europa.eu/data-protection/our-work/subjects/necessity-
proportionality_en
7. CESCR General Comment No. 14, The Right to the Highest Attainable Standard of Health
art. 12.
8. Orville G. Jr. Brim, Privacy and Behavioral Research, 65 Colum. L. Rev. (1965).
9. Jeffrey M. Skopek, Reasonable Expectations of Anonymity, 101 Virginia Law Review,
(2015)
Books Referred
1. Asbjorn Eide et al., Economic, Social and Cultural Rights (1995).
2. Mashood A. Baderin & Manisuli Ssenyonjo, International Human Rights Law: Six Decades
after the UDHR and Beyond (2010).
3. Malcolm N. Shaw, International Law, (1997).
4. Martin Dixon and Robert McCorquodale, Cases and Materials on International Law, (1995).
5. E. Lauterpacht, Q.C, International Law, (1975).
PAGE 4
6. W.E Butler, International Law and The International System,. (1987).

7. Stphane Beaulac, Customary International Law in Domestic Courts,(2006).
8. K. Raustiala, Form and Substance in International Agreements, (2005).
9. Thomas Benedikter, The Worlds Modern Autonomy Systems: Concepts and Experiences of
Regional Territorial Autonomy (2009)
10. V. Crni-Groti, D. Kasipovi, The Right to Selfdetermination (1991).
11. H.M. Seervai, Constitutional Law of India, Fourth Edition, Volume 1, Page 439.
Articles
1. Edwin Dickinson,The Law of Nations as Part of the National Law of the United States U.
Pa. L. Rev. 26 at 29 101 (1952).
2. Nishant Kumar Singh, The Indian Constitution and Customary International Law: Problems
and Perspectives, Student Advoc. 12 (2000).
3. Saikrishna Prakash, Constitutional Status of Customary International Law, Vol. 29 Harvard
Journal of Law & Public Policy, Page 67, (2010).
4. Batumi International Conference on Law and Politics, Conference Proceedings, Batumi,
Georgia, International Institute for Academic Development.
5. Hannes Vallikivi, Domestic Applicability of Customary International Law in Estonia, 7
Juridica International Law Review,30(2002).
6. Bartha Maria Knoppers, Consent to 'Personal' Genomics and Privacy, EMBO Reports, (2011)
7. HUGO Ethics Committee, Statement on Human Genomic Databases , Eubios Journal of
Asian and International Bioethics (2003)
8. Budapest Open Access Initiative, Read the Budapest Open Access Initiative, the Budapest
Open Access Initiative (February 14, 2002)
9. Jane Kaye, The Tension Between Data Sharing and the Protection of Privacy in Genomics
Research, Annual Review of Genomics and Human Genetics (2012);
10. E Giglia & A Swan, Open Access to Data for a New, Open Science, European Journal of
Physical and Rehabilitation Medicine (2012)
11. Bevin P Engelward & Richard J Roberts, Open Access to Research Is in the Public Interest,
PLOS Biology (2007)
12. PL Taylor, Research Sharing, Ethics and Public Benefit, Nature Biotechnology 398(2007)
13. National Institutes of Health, Policy on Enhancing Public Access to Archived Publications
Resulting from NIH-Funded Research
14. Kai Moller, Proportionality: Challenging the Critics, 10 Int'l J. Const. Law (2012)
PAGE 5
STATEMENT OF JURISDICTION
The Honble Court has the jurisdiction under Order LV of the Supreme Court Rules, 2013 to
consolidate the two cases before the Constitution Bench. The respondents have been brought
before the Supreme Court of Natruland in pursuance of the same.
PAGE 6
STATEMENT OF FACTS
BACKGROUND OF NATRULAND
Natruland is worlds second largest democracy with a federal republic. It has its capital is in
Putru-Chali governed centrally by the Union Government. There are six other states. There is
no written constitution. The full court of Supreme Court has declared all human rights known
to the civil society as part and parcel of fundamental rights on the soil of Natruland. It has
enforced rights recognized in UDHR and by courts of Australia, Canada, India, South Africa
and United States. Any right recognized at its highest manifestation by any court anywhere in
the world shall apply in case of disharmony or conflict and duty of the state has to be highest
amplitude in protection of such right.
DISCOVERY OF MINI
MINI- Multiplying Innate Nano Inhibitors was a discovery of Mr. Abrish Natruka which
proved that brains of Melanesian humans, after their Brain Axons being triggered, produced
MINI which could be further segregated with pre-injected serum and be put to uses such as
curing cancer and enabling better MRI scans. Use of MINI required onetime registration and
MINI number which captured essential biometric information of the user along with DNA
profile. Registration was done on a standalone server which had information regarding use
and implementation of MINI. The server has not been hacked till date. Licenses were issued
for access to MINI server for the purpose of research. All civilized nations built centres for
research on MINI (CROM). These centres were there in Natruland too, except in the state of
Mullu who believed the idea of injection and segregation to be violative of right to privacy.
Cancer was prevalent in Mullu and MINI was used widely for its detection and cure.
BACKDROP OF MULLU
Mullu, with its own civil and penal codes is the only state in Natruland with a special status
due to historic events with Natruland and Darkistan born out of division of Camistan, both
vying for the territory of Mullu. The historic acrimony flourished due to successive
governments desire to be an ally of Armistan whose foreign policy was dictated by armed
hostilities. An Instrument of Accession was signed wherein an eventual plebiscite was
insisted and this was made one of the clauses. The Instrument also provided special status for
Mullu and its residents, and there were clauses which ousted outsiders from purchasing
PAGE 7
property or allowing them a stay of more than three years. The newly elected President of
Natruland incorporated these clauses.
MULLUWORKS
Mulluworks was a corporation owned by Mr. Gulla, who was from Mullu involved in data
collection, data banking and selling. Its key customers were telecalling companies, banks
and insurance companies. Mr. Gulla being a supporter of right to privacy did not allow names
and identities to be cross-linked with data. The data bank has this information segregated. It
realized the business opportunity in harvesting MINI database and started paying hefty sums
to hospitals in exchange of registration forms of individuals with MINI data prior to its
uploading on the server. Niji, who hailed from Kutru came in contact with Mr. Gulla and they
got married. Mr. Niji then came in contact with Abrish Natruka and filed for divorce. Mr.
Gulla wanted to give part of his property in Mulluworks in form of the alimony sought but
could not do the same because of the laws that existed. Subsequently, he filed a writ petition
challenging the restrictions imposed on outsiders and special status for Mullu.
RESENTMENT AGAINST WRIT PETITION
The entire bar resolved to not represent Mr. Gulla. Mr. Queerish Robedey was provided to
him from the Supreme Court as an amicus. Even he was not allowed to enter the courtroom
by members of the local bar. A transfer petition on seeking transfer of the writ petition out of
Mullu was filed.
OBSERVATION OF JUDGES
During the admission hearing, Justice Wody, noting the cause title had name of Mr. gulla,
shared his plight of getting unsolicited calls asking his name and desire to buy property in
Mullu since he started the cure of his cancer. Justice Kaidu also commented about him being
offered cheap second hand cars and insurance services. The chief Justice directed the CBI to
make an investigation which indicted certain telecaller companies for the calls. It was noted
that each of these companies had paid Mulluworks a hefty amount. In pursuance of this, a suo
moto case was registered with Mulluworks, Union of Natruland and State of Mullu being
party respondents.
PAGE 8
ISSUES
ON MAINTAINABILITY
1. WHETHER THE INSTANT TRANSFER PETITION ALONG WITH THE WRIT PETITION
IS MAINTAINABLE BEFORE THE HON BLE COURT OF NATRULAND ?
ON MERITS
2. WHETHER THE RESTRICTIONS PLACED ON OUTSIDERS AND THE SPECIAL
STATUS PROVIDED FOR MULLU AND ITS RESIDENTS IS UNCONSTITUTIONAL?
3. WHETHER THE REGISTRATION OF MINI ON THE MINI SERVER BY MR.
ABHRISH NATRUKA AND THE SUBSEQUENT PROCUREMENT OF REGISTRATION
FORMS WITH MINI DATA FROM HOSPITALS BY MULLUWORKS AMOUNTS TO
BREACH OF PRIVACY?
PAGE 9
THE SUMMARY OF ARGUMENTS
ON MAINTAINABILITY
1) WHETHER THE INSTANT TRANSFER PETITION ALONG WITH THE

WRIT PETITION IS MAINTAINABLE BEFORE THE HONBLE SUPREME
COURT OF NATRULAND?
It is most humbly submitted before this Honble Court that the instant writ petition that has
been filed is not maintainable, the reasons of which are based on two premises; First, the
petitioner does not have the locus standi to file the writ petition. Secondly, the Supreme Court
does not have the jurisdiction to entertain the writ petition.
The right to property is not available to Mr. Gulla as a human right. The legal injury has been
caused to him in the form of his inability to get a divorce. There is no question of violation of
his legal right or human right as a consequence of state action. Moreover, an alternate remedy
still exists with him in the way of mediation which was originally available to him. He himself
opted out of the same as a result of which he does not have the rightful legal capacity to
invoke the writ jurisdiction of this Honble Court for the enforcement of fundamental rights.
ON MERITS
2) WHETHER THE RESTRICTIONS IMPOSED ON OUTSIDERS AND THE
SPECIAL STATUS PROVIDED FOR MULLU AND ITS RESIDENTS IS
UNCONSTITUTIONAL?
It is contended before this Honble Court that the Instrument of Accession is a binding treaty
between the State of Mullu and the Union of Natruland, under which Mullu and Natruland
have a binding obligation to abide by the obligations given under the treaty, i.e. providing
special status to the state of Mullu, placing the restrictions on outsiders, and conducting an
eventual plebiscite, in good faith with respect to the customary international law of pacta
sunt servanda being a part of the domestic law of Natruland vis--vis the Blackstone doctrine
of incorporation. Furthermore, the domestic application of customary international law and
the States obligation to abide by it will prevail over the duty of the state to protect human
rights. Violation of the binding obligations under the Instrument of Accession also violates
PAGE 10
the right to self-determination of the residents of Mullu and frustrates the scope of conducting
an eventual plebiscite. It has further been submitted that the right to equality of Mr. Gulla has
not been violated because there is reasonable classification between the residents of Mullu
and the citizens of Natruland. The classification is based on intelligible differentia and there
is reasonable nexus to the object sought to be achieved.
3) WHETHER THE REGISTRATION OF MINI DATA ON THE MINI SERVER

BY MR. ABHRISH NATRUKA AND THE SUBSEQUENT PROCUREMENT
OF REGISTRATION FORMS WITH MINI DATA FROM HOSPITALS BY
MULLUWORKS AMOUNTS TO BREACH OF PRIVACY?
MINI server was freely accessible by all and sundry without any restrictions over the
derivation or exploration of its possible uses. MINI was put to multiple uses such as curing
cancer and enabling better MRI scans. The endorsement of open access on the basis of "the
public good" or "the public interest" abounds in policies promoting research A legitimate
interest was involved in collecting and processing of personal data on the MINI server as the
data which was collected gave rise to public benefit therefore open access to MINI data is
justified. Moreover Union of Natruland had a positive obligation to deal with high prevalence
of cancer and promote the spirit of scientific research. Mr. Gulla was a supporter of the right
to privacy and he ensured that data collected was not cross linked with names of the
individuals concerned by Mulluworks making the data unidentifiable and remained
anonymous therefore such collection of data didnt violate the right to privacy. MINI data
was already in public domain to be used for all possible uses which defeats the reasonable
expectation of privacy.
WRITTEN PLEADINGS
PAGE 11
I. WHETHER THE INSTANT WRIT PETITION IS MAINTAINABLE BEFORE THE

HONBLE SUPREME COURT OF NATRULAND .
1. The Supreme Court of Union of Natruland does not have jurisdiction to

entertain a transfer petition from State of Mallu
1. The Supreme Courts power to transfer petition from one high court to another does not
extend to State of Mallu. The Supreme Courts power to transfer civil suits emanate from the
Section 25 of CPC, which empowers to transfer civil cases from one high court to another
for the ends of justice.1 However, in the present instance, the State of Mallu has separate
civil code, which has been recognized as a part of legislative domain of State of Mallu. 2
Therefore, the Supreme Court does not have jurisdiction to entertain the transfer petition of
civil due to non-applicability of CPC in the State of Mallu.
2. Furthermore, there is inadequate information with the specific to the provision of State of
Mallus civil code. Therefore, in the absence of enabling provision empowering the Supreme
Court to invoke direct transfer from one High Court to another, the petitioner has no right to
seek a transfer a writ petition from State of Mallu to another High court.
3. It is most humbly submitted before this Honble Court that the instant writ petition that has
been filed is not maintainable, the reasons of which are twofold:
i. The petitioner has no locus standi to file the writ petition

ii. The Supreme Court does not have the jurisdiction to entertain the writ
petition
A. The petitioner does not have the Locus Standi to file the writ petition
4. In order to file a writ petition, the petitioner must have a legal standing. 3 The requirement of
locus standi of a party to any litigation is mandatory: because the legal capacity of the party
to any litigation whether in private or public action in relation to any specific remedy sought
for has to be primarily ascertained at the threshold.4
1. No state action involved with respect to legal injury
1
Code of Civil Procedure 25 (1908).
2
Factsheet page 2 para 8.
3
Prasar Bharati Broadcasting Corpn. Of India v. Debjyoti Bose, AIR 43, (Cal. HC 2000).
4
Janta Dal v. H.s. Chowdhary, 4 SCC 305, (SC: 1992).
PAGE 12
4. In the case of S.P Gupta v. President of India5, it was held that:
The traditional rule in regard to locus standi is that judicial redress is only available to a
person who has suffered a legal injury by the reason of violation of his legal right or
legally protected interest by the impugned action of the state or a public authority
In the present case, Mr. Gullas legal injury has not been infringed by a state action or a
public authority. State action refers to an action by the government at any level-federal,
state, or local.6 Mr. Gullas legal injury has taken place in the form of his inability to obtain
the dissolution of his marriage with Mr. Niji. There is no involvement of state action in
context of this legal injury. His inability to pay the alimony to get a divorce is not a direct
consequence of a state action. Therefore, there is no reasonable proximity between Mr.
Gullas right to dissolution of marriage and the special status given to the state of Mullu.
Moreover, an alternative remedy for Mr. Gulla to get a divorce still exists in the form of
Mediation which was originally available to him. As is evident from the facts of the case, a
Mediator was to be appointed for the solution to the dispute of divorce between Mr. Gulla
and Mr. Niji. Mr. Gulla voluntarily agreed not to opt for it and decided to settle for the
alimony sought by Mr. Niji. This is a clear implication of the fact that in absence of any legal
mandate by the Court, the parties went outside the scope of a legal remedy that was to be
provided by the Court. Therefore, Mr. Gulla does not have the legal standing to file a writ
petition with regards to a legal injury that is outside the scope of state action and for which an
alternative remedy exists.
5. In the case of Union of India v. T.R. Varama7, it was observed that:
It is well-settled that when an alternative and equally efficacious remedy is open to a

litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of
the High Court to issue a prerogative writ.
Taking into account the remote proximity between Mr. Gulla not being able to get a divorce
and the special status that exists for the state of Mullu, Mr. Gulla has to avail the alternative
remedy that has been originally given to him in form of mediation to resolve the dispute of
divorce between him and Mr. Niji.
5
AIR 149, (SC:1982).
6
Franz v. United States 712 F.2d 1428 (D.C Cir.: 1983).
7
AIR 882, (SC: 1957)
PAGE 13
B. The Supreme Court does not have the jurisdiction to entertain the writ petition
6. The jurisdiction vested in this Honble Court can be invoked only for the enforcement of
fundamental rights. When there is no question of enforcement of a Fundamental Right, writ
jurisdiction has no application.8
i. Right to property is not a human right
7. Article 17 of the Universal Declaration of Human Rights (hereinafter referred to as UDHR)

provides: Everyone has the right to own property alone as well as in association with
others and no one shall be deprived of his property.9 Article 17, however, does not create
a right to property; rather, it simply addresses restrictions on property ownership.10
Moreover, the Universal Declaration was created as nonbinding instrument11 that merely set
forth aspirational goals, not legally enforceable obligations. UDHR, in fact, contains a series
of principles and rights that are based on human rights standards enshrined in other
international instruments that are legally binding such as the International Covenant on
Civil and Political Rights (ICCPR)12 and the International Covenant on Economic, Social
and Cultural Rights (ICESCR)13. Drafting committees working under the aegis of the United
Nations Human Rights Commission negotiated the aforementioned treaties to implement the
Universal Declaration. The right to property is notably absent from both the ICCPR and
ICESCR.
8. The nature of the right to property has its mandatory legal character only to the extent that it
has been included in certain regional human rights conventions and other specialized
treaties.14 A global right to property has not been established because of its lack of
incorporation into the national law of all states and its incapability of being given the same
weight in domestic courts.15 In absence of a universal acknowledgment of the right to
property, it cannot be construed as a human right. Therefore, the right to property is not to be
considered as a part and parcel of Fundamental Rights with respect to the present case.
8
Chiranjit Lal Chowdhuri v. Union of India AIR 41, (SC: 1951).
9
Martin A. Geer, Foreigners in Their Own Land, 38, Virginia Journal of International Law, 370(1997).
10
Asbjorn Eide et al., Economic, social and cultural rights 146(1995).
11
Mashood A. Baderin & Manisuli Ssenyonjo, International Human Rights Law: Six Decades after the UDHR
and beyond 4(2010).
12
International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171.
13
International Covenant on Economic, Social and Cultural Rights, Dec. 19, 1966, 998 U.N.T.S. 3.
14
G.A. Res. 45/98, U.N. Doc. A/RES/45/98 (1990).
15
Luis Valencia Rodriguez, Independent Expert Report, The Right of Everyone to Own Property Alone as Well
as in Association with Others 90, U.N. Commission on Human Rights, U.N. Doc. E/CN.4/1994/19 (1993).
PAGE 14
Therefore, the writ jurisdiction of the Supreme Court cannot be invoked to entertain the
instant writ petition.
II. WHETHER THE RESTRICTIONS IMPOSED ON OUTSIDERS AND THE SPECIAL
STATUS PROVIDED FOR MULLU AND ITS RESIDENTS IS UNCONSTITUTIONAL?
1. The Union of Natruland under the treaty of the Instrument of Accession has an
obligation under the customary international law to abide by the clauses of the
Instrument of Accession.
A. Customary International law is part of the law of Union of Natruland vis-
-vis the Blackstone doctrine of incorporation.
9. Customary international law is a general and consistent practice of states followed by them
16
from a sense of legal obligation. It has acquired a significant space in the Constitution of
16
Edwin Dickinson, The Law of Nations as Part of the National Law of the United States U. Pa. L. Rev. 26
PAGE 15
the Union of Natruland. In the Union of Natruland, the jurisprudence of domestic

application of customary international law is influenced by the Blackstones doctrine of
incorporation. As per Blackstones doctrine of incorporation, the customary principles of
17
international law form part of the law of the land. This common law jurisprudence has
found consistent restatement by the Courts affirming that the Blackstone doctrine of
incorporation incorporates the customary international law in the domestic law. This legal
doctrine was affirmed in Buvot v. Barbuit18 and subsequently restated in the Parliament
Belge19, Solomon v. Commissioners of Customs and Exercise 20, and again in the
International Tin Council case21.
10. As regards customary international law, Lord Talbot declared unambiguously in the case of
Buvot v. Barbuit22 that the laws of nations in its full extent was part of the law of England
and this was reaffirmed in the dictum of Lord Mansfield in Triquet v. Bath23wherein he
stated that the law of nations was part of the law of the land. Lord Denning MR in
Trendtex Trading Corp. v. Central Bank of Nigeria24 held with regard to the doctrine of
incorporation that the rules of international law are incorporated into English law
automatically and considered to be part of English law unless they are in conflict with an Act
of Parliament.
11. With respect to there being an unwritten Constitution, and the judgment of the Supreme
Court in upholding rights at their highest manifestation by any court anywhere in the world
being binding on the Union of Natruland, Union of Natruland is subject to common law
jurisprudence. The case-law precedent of common law countries is equally binding on the
Union of Natruland. The Blackstone doctrine of incorporation ipso facto binds the Union of
Natruland and lays down that customary international law is a part of domestic law
irrespective of any specific adoption or affirmation by the Government. Customary
international law is ipso facto part of the laws of the Union of Natruland and hence part of
the supreme law of the land. If customary international law is part of the supreme Law of
at 29 101 (1952).
17
Nishant Kumar Singh, The Indian Constitution and Customary International Law: Problems and Perspectives,
Student Advoc. 12 (2000).
18
(1737) Cases t. Talbot 281, Malcolm N. Shaw, International Law, 105(1997).
19(1878-79)
Martin Dixon and Robert McCorquodale, Cases and Materials on International Law, 100(1995).
20
2 QB 116 (1967).
21
2 AC 418 (1990).
22
Cas. Temp.Talbot 281 (1737).
23
(1746) 3 Burr 1478, Martin Dixon and Robert McCorquodale, Cases and Materials on International Law, 106
(1995).
24
1 QB 529 AT 553-4 (QB: 1977).
PAGE 16
the Land, the State has a positive obligation under the unwritten Constitution to respect and
enforce customary international law25 and the breach of such an obligation will result in
unconstitutionality.
12. Since Union of Natruland is mutatis mutandis to India, the Indian legal jurisprudence also
affirms that the customary international law is a part of the supreme law of the land. The
A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd. 26) and in PUCL v. Union of India27,
the Supreme Court reaffirmed that principles of Customary International Law are deemed to
be part of the law of the land.
13. The Blackstone doctrine of adoption or incorporation 28had been a once and for all
occurrence.29According to the incorporationist model in British terminology according
to which international customary norms would be automatically part of the law of the
land.30Past, present, and future customary international law have been adopted into Union
of Natruland law, and presumably it would follow that judges of Union of Natruland need no
longer be concerned with the existence of customary international law or the means to
execute the same.31Therefore, the Union of Natruland is bound to abide by the customary
international obligation and courts must keep the norms of customary international
obligation rendering the judgment.
B. Instrument of accession is a treaty between the state of Mullu and Union

of Natruland.
14. Treaties are express agreements and are a form of substitute legislation undertaken by states.
They bear a close resemblance to contracts in a superficial sense in that the parties create
binding obligations for themselves, but they have a nature of their own which reflects the
character of the international system.32
25
Saikrishna Prakash, Constitutional Status of Customary International Law, Vol. 29 Harvard Journal of Law &
Public Policy, Page 67, (2010).
26
2 SCC 62 (SC: 2011) para 10.
27
1 SCC 301 (SC: 1997).
28
E. Lauterpacht, Q.C, International Law, 546 (1975).
29
W.E Butler, International Law and The International System,.68 (1987).
30
Stphane Beaulac, Customary International Law in Domestic Courts, Page 381(2006).
31
Id.
32
Malcolm N. Shaw, International Law, 7ed 67 (2014).
PAGE 17
15. There are no specific requirements of form in international law for the existence of a treaty, 33
although it is essential that parties intend to create legal relations as between themselves by
means of their agreement.34 This was reaffirmed in Qatar v. Bahrain case35 emphasized that
an agreement constituting a binding agreement depend upon the all its actual terms and the
circumstances in which it had been drawn up.36
16. The Union of Natrulands Instrument of Accession with the State of Mullu is an international
treaty. The Instrument of accession fulfils essential legal criteria to constitute an
international treaty such as the express consent of the President of the Union of Natruland
and the King of Mullu, and both of them are obligated to abide by the conditions and norms
provided in the Instrument of Accession. The mere fact that Mullu has acceded to Natruland
does not dissolve the preceding international legal obligation to abide by the Instrument of
accession37. Furthermore, the Instrument of accession was incorporated in domestic law
through the Presidential order. Thus, Union of Natruland has consented to implement the
special status in order to abide by the previous international obligation under the Instrument
of Accession to provide special status to the resident of the state of Mullu.
17. Since the Instrument of accession fulfils the legal definition of treaty, therefore, the State is
not entitled to invoke internal law to override the international legal obligations provided in
the treaty. The State has a positive obligation to fulfil the legal obligation provided in the
treaty in good faith.38
C. Union of Natruland is bound by customary international law of Pacta sunt

servanda to abide by the obligations under the Instrument of Accession.
18. The obligatory nature of treaties is founded upon the customary international law principle
that agreements are binding (pacta sunt servanda).39 The pacta sunda servanda is
recognized as customary international law.The fundamental principle of treaty law is
undoubtedly the proposition that treaties are binding upon the parties to them and must be
33
The Newfoundland/Nova Scotia arbitration para. 3.15 (2001). See also the Aegean Sea Continental Shelf case,
ICJ Reports, pp. 3. 39; 60 ILR, p. 511 (1978). K. Raustiala, Form and Substance in International
Agreements,p. 581,( 2005).
34
Third US Restatement of Foreign Relations Law, Washington, vol. I, Page 149 (1987).
35
ICJ Reports, p. 112; 102 ILR, p. 1 (1994).
36
ICJ Reports, p. 121; 102 ILR, p. 18 (1994), citing the Aegean Sea Continental Shelf case, ICJ Reports, p. 39;
60 ILR, p. 511 (1978).
37
Vienna Convention on Succession of Treaties, art. 31(1)
38
Malcolm N. Shaw, International Law, 7ed. 655 (2014).
39
Id at 67.
PAGE 18
performed in good faith.40 This rule is termed pacta sunt servanda and is arguably the oldest
principle of international law. It was reaffirmed in article 26 of the 1969 Convention, 41 and
underlies every international agreement for, in the absence of a certain minimum belief that
states will perform their treaty obligations in good faith; there is no reason for countries to
enter into such obligations with each other.42 In Netherlands v. Sweden43 it was held that
pactasuntservandais a time honoured and basic principle.
19. One of the main principles of international law is compliance with international treaties vis-
-vis the principle of pactasuntservanda. The Instrument of accession, which was properly
concluded and entered into force, must be abided by a Union of Natruland faithfully and
honestly.44 A strict implementation of the international treaty obligations by the Union of
Natruland assumes the effectiveness of the Instrument of accession, regardless of the
changes in the form of government or the state apparatus, territorial changes, or strikes. The
above-mentioned circumstances cannot influence the implementation of Instrument of
accession even if, the State of Mallu had been acceded to the Union of Natruland.45
20. Therefore, the Union of Natruland is bound by the customary international law of pacta sunt
servanda to abide by the binding norms provided in the Instrument of Accession. Since, the
customary international law is a part of domestic law of Union of Natruland, the State has a
positive obligation to grant special status to Mullu residents and place restriction on the
outsiders.
D.The States obligation to abide by customary international law will

prevail over the domestic law to protect human rights.
21. The domestic application of a rule of customary international law is the application of the
rule in a way that the applied norm is used to derive the rights and obligations of the
parties.46The Union of Natrulands constitutional approach must be such that it is valid as
part of the domestic law of Natruland which seeks to apply it domestically. Also, it must
prevail over all the colliding norms of national law. This means that in the case of conflict of
40
Nuclear Tests cases, ICJ Reports, pp. 253, 268; 57 ILR; pp. 398, 413 (1974); Nicaragua case, ICJ Reports, pp.
226, 264; 110 ILR, pp. 163, 214 (1996).
41
Gabkovo-Nagymaros Project case, ICJ Reports pp. 7,78-9; 116 ILR, p. 1, (1997).
42
Malcolm N. Shaw, International Law, 7ed. 655 (2014).
43
ICJ Reports, p. 141, (1958) ( dissenting Cordova J.).
44
Vienna Convention 1969, art.26, 27 & 46.
45
Batumi International Conference on Law and Politics,Conference Proceedings, Batumi, Georgia, International
Institute for Academic Development.
46
Burr 1478, Martin Dixon and Robert McCorquodale, Cases and Materials on International Law, 106 (1995).
PAGE 19
the customary rule with a domestic rule, be it a constitutional, statutory or secondary law
rule, the customary law rule must be in a position in the normative hierarchy that enables it
to prevail over the conflicting domestic rule.47
22. The customary international law is a part of supreme law of Union of Natruland. The
customary international obligation to provide special status to citizens of Mullu supersedes
the positive obligation of the State to protect human rights. 48In the present instance, the
Supreme Court has concluded that the State has a duty to protect human rights of highest
manifestation49. However, the customary international law to abide by the binding norms of
Instrument of accession would not be ipso facto invalid in case there is a conflict with
human rights, rather common-law jurisprudence mandates to supersede the existing
constitutional or statutory or domestic law in the Union of Natruland.50
23. Therefore, the Supreme Court judgment declaring that the States positive obligation to
protect human right in case of conflict with other provisions is not applicable to the
provision of implementation of customary international law. Hence, the special status
provided in Instrument of Accession later incorporated by the Presidential orders is not
subject to the judicial review of case-law precedent of breach of human rights.
E. Not abiding by the obligations under the Instrument of Accession in

toto results in violation of the right to self-determination.
24. Territorial autonomy is to be understood as a special status granted to a territorial unit that
enables the residents of that territorial unit to regulate their own affairs through autonomous
legislation, government, administration, and in some extent also the judiciary. 51 The right to
self determination has been found to be a part of customary international law, the essence of
which is the need to pay regard to the freely expressed will of peoples. 52 It refers to the
right of a people to determine its own political status.53 All peoples have the right freely to
determine, without external interference, their political status and to pursue their economic,
47
Hannes Vallikivi, Domestic Applicability of Customary International Law in Estonia, 7Juridica International
Law Review,30(2002).
48
Id.
49
50
Hannes Vallikivi, Domestic Applicability of Customary International Law in Estonia, 7 Juridica International
Law Review, 30(2002).
51
id. page 38.
52
Western Sahara, ICJ Rep 12, (1975) para.59.
53
V. CRNI-GROTI, D. KASIPOVI, The Right to Selfdetermination (1991).
PAGE 20
social and cultural development, and every state has the duty to respect this right in
accordance with the provisions of the United Nations Charter.54
25. By means of the Instrument of Accession, a certain level of autonomy was given to the state
of Mullu in the form of a special status consistent with which there was an integration of
Mullu with Natruland. In the proper sense, the term autonomy is used whenever only a
specific part of the territory acquires a special status with specific characteristics. 55
Eliminating the special status and restrictions takes away the territorial autonomy given to
the state of Mullu and violates the binding obligations under the treaty. The occurrence of an
eventual plebiscite was also one of the binding obligations under the Instrument of
Accession wherein the people of Mullu were in a position to decide who they eventually
wanted to be with- Natruland or Darkistan. Violation of the aforementioned binding
obligations under the Instrument of Accession in toto constitutes violation of the customary
international law of self-determination of the residents of Mullu, wherein the State has an
obligation to abide by the customary international law of self-determination.
2. There is no violation of right to equality of Mr. Gulla
26. People are unequal; consequently, a right conferred on persons that they shall not be denied
the equal protection of the laws cannot mean the protection of the same laws for all. It is
here that the doctrine of classification, steps in, and gives content and significance to the
guarantee of the equal protection of the laws.56 To separate persons similarly situated from
those who are not, we must differentiate, 57 that is, act on the basis of a difference between
persons, or observe distinctions carefully between persons who are, and persons who are
not, similarly situated. A law based on a permissible classification fulfills the guarantee of
the equal protection of the laws and is valid.58 Mullu being a sensitive territory, wherein both
Natruland and Darkistan vied for the territory of Mullu, the residents of the state of Mullu
were differently situated from the rest of the citizens of Natruland. In order to provide the
residents of Mullu, equal protection of laws under the fundamental right to equality, because
of them being differently situated differentiation must be made between the residents of
Mullu and the rest of the citizens of Natruland.
54
The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among
States United Nations General Assembly Resolution 2625.
55
Thomas Benedikter, The Worlds Modern Autonomy Systems: Concepts and Experiences of Regional
Territorial Autonomy, (2009).
56
H.M. Seervai, Constitutional Law of India, Fourth Edition, Volume 1, Page 439.
57
Id.
58
Id.
PAGE 21
27. In order to pass the test of permissible classification two conditions must be fulfilled (1)
that the classification is founded on intelligible differentia which distinguishes persons or
things that are grouped together from others left out of the group and (2) that the differentia
must have a rational relation to the object sought to be achieved.59
28. The Presidential order incorporates the special status provided for Mullu and its residents,
and the clauses ousting outsiders from purchasing any property in Mullu or taking
permanent residency in the State.
A. The classification between the resident of Mullu and citizens of Natruland is

intelligible differentia
29. Intelligible differentia distinguishes persons or things that are grouped together from others
that are left out of the group.60 The law can make and set apart the classes according to the
needs and exigencies of the society and as suggested by experience. It can recognise even
degree of evil, but the classification should never be arbitrary, artificial, or evasive. The
classification must not be arbitrary but must be rational, that is to say, it must not only be
based on some qualities or characteristics which are to be found in all the persons grouped
together and not in others who are left out but those qualities or characteristics must have a
reasonable relation to the object of the legislation.61
30. The residents of the state of Mullu are distinguished from the rest of the citizens of
Natruland due to the historic events that preceded Mullus joining of the Union. The
Presidential orders can make and set apart the residents of Mullu from the rest of the citizens
of Natruland according to their need of a special status and restrictions placed on outsiders.
The classification made is rational because of them being residents of a sensitive territory
with respect to the historic events that preceded Mullus joining of the Union. Therefore,
there is intelligible differentia that distinguishes the residents of Mullu from the rest of the
citizens of Natruland.
B. The classification has rational nexus to the object sought to be achieved
59
Kumari Chitra Ghosh and Another v. Union of India and Others, 2 SCC 228, (SC: 1969).
60
Id.
61
In re Special Courts Bill, 1SCC 380, (SC: 1979).
PAGE 22
31. The second essential condition to satisfy differentiation is justified or reasonable is that the
intelligible differentia of the classification must have a rational relation to the object sought
to be achieved.62 In Union of India v. M.V. Valliappan 63 the Supreme Court observed that it is
settled law that differentiation is not always discriminatory. If there is a rational nexus on the
basis of which differentiation has been made with the object sought to be achieved, then
such differentiation is not discriminatory and does not violate the principles of equality.
Further it was held in Deepak Sibal v. Punjab University64 that:
But the circumstances must be such as to justify the discriminatory treatment or the
classification sub serving the object sought to be achieved.
The differentia between the residents of Mullu and the rest of the citizens of Natruland has a
rational relation to the object sought to be achieved.
32. The primary object of the Presidential order granting special status to the state of Mullu
citizens and placing restrictions on outsiders is that of unification between the state of Mullu
and Union of Natruland, provision of territorial autonomy to Mullu, and territorial integrity
of the Union of Natruland. There being historical acrimony between Natruland and
Darkistan, and both of them vying for the territory of Mullu, and there still being continuing
tensions between them, Mullu undisputedly requires a special status to be provided to Mullu,
for there to be a proper unification and peaceful integration of the state of Mullu with the
Union of Natruland. This object cannot be fulfilled without providing territorial autonomy to
the State of Mullu. Furthermore, the special status to Mullu allowing its peaceful integration
with the Union of Natruland would prevent the possibility of any discontent with Natruland
and Mullu disintegrating from Natruland. Therefore, there is permissible classification
because the differentia has rational nexus to the object that is sought to be achieved, and
removal of such classification will affect the very existence and the future of the state of
Mullu.
33. Therefore, in light of the above, the right to equality of Mr. Gulla has not been violated
because there is permissible classification under the fundamental right to equality as there is
intelligible differentia to differentiate the residents of Mullu and the rest of the citizens of
Natruland, and the differentia has reasonable nexus to the object of peaceful integration
between Mullu and Natruland sought to be achieved.
62
Laxmi Khandsari v. State of Uttar Pradesh, 2 SCC 600, (SC: 1981).
63
6 SCC 259, (SC: 1999).
64
2 SCC 145, (SC: 1989).
PAGE 23
III. W HETHER THE REGISTRATION OF MINI ON THE MINI SERVER BY MR.
ABHRISH NATRUKA AND THE SUBSEQUENT PROCUREMENT OF REGISTRATION
FORMS WITH MINI DATA FROM HOSPITALS BY MULLUWORKS AMOUNTS TO
BREACH OF PRIVACY .
34. The right of data protection is not an absolute right; it must be considered in relation to its
function in society and be balanced against other rights65. Limitations of this right - i.e., rules
allowing the collecting, disclosure or use of personal data other than on the basis of this self-
determination must be based on a law and the law in question must clearly and specifically
set out the conditions under which such processing may take place. Such limitations (special
permissions of processing of personal data without consent) are moreover only permissible
if there is a manifestly overriding public interest that justifies them; and the limitation must
be limited to what is necessary and proportional to achieve this public interest.66
1. MINI server as an Open Access model to research output.
35. The free availability permitting any users to read, download, copy, distribute, print, search,
or link to the full text of these articles, crawl them for indexing, pass them as data to
software or use them for any other lawful purpose, without financial, legal or technical
barrier other than those inseparable from gaining access to the internet itself is defined as
Open Access.67In the context of genetic research, the foundation of the Open Access model
can be traced back to the Human Genome Project (HGP), which provided free public access
to all human genomic sequence information generated from the project with the aim of
promoting research and development and maximizing societal benefits. 68 The HGP approach
emphasized that "human genomic databases are global public goods," 69 and should be
65
Volker und Markus Schecke GbR v Land Hessen: Eifert v Land Hessen, All ER (EC), 127 (ECJ: 2012)
para. 48.
66
Douwe Korff, Comparative Study of Different Approaches to EU privacy challenges, EUROPEAN
COMMISSION, 2(2010).
67
Budapest Open Access Initiative, Read the Budapest Open Access Initiative, THE BUDAPEST OPEN ACCESS
INITIATIVE (February 14, 2002) http://www.budapestopenaccessinitiative.org/read.
68
HUGO Ethics Committee, Statement on Human Genomic Databases (2002); Bartha Maria Knoppers, Consent
to 'Personal' Genomics and Privacy (2011); Jane Kaye, The Tension Between Data Sharing and the Protection
of Privacy in Genomics Research, 13 Annual Review of Genomics and Human Genetics (2012); E Giglia & A
Swan, Open Access to Data for a New, Open Science, 48 European Journal of Physical and Rehabilitation
Medicine 713(2012).
69
HUGO Ethics Committee, Statement on Human Genomic Databases (2002).
PAGE 24
accessible to everyone. Where the public interest in disclosure clearly outweighs any
invasion of privacy that could result from the disclosure the information may be disclosed.70
36. In the context of the present case, MINI was freely accessible by all and sundry without any
restrictions over the derivation or exploration of its possible uses. 71 The same has to be
treated as an Open Access model in cognizance of the fact that MINI as a bi-product was put
to multiple uses such as curing cancer and enabling better MRI scans 72. This is a clear
evidence of the fact that the collection of essential information of the users was done to
execute a greater public good, therefore involving maximization of a social benefit.
37. The prevalence of Open Access in effect has four-fold implications:-

1. Open access promotes the intuitively appealing notion that research funded by the
public should be accessible to the public.73
2. It facilitates faster and wider dissemination of research results, thus allowing
researchers to mine and re-use research data to produce new knowledge without
the need to spend more money or time on data collection.74
3. Open access promotes equal and just distribution of the benefits of research by
encouraging sharing of research outputs and data among "economically and
geographically diverse"75 scientists and publics.76
38. The endorsement of open access on the basis of "the public good" or "the public interest"
abounds in policies promoting this research trend. NIH policy, for example, encourages
"sharing of ideas, data, and research findings to help accomplish its important public mission
to uncover new knowledge that will lead to better health for everyone. 77Likewise, the MINI
server promotes research in the use and implementation of MINI which subsequently serves
in the greater interest of the society in terms of achieving an advanced and nuanced
understanding of nano-sciences along with curing cancer and executing better MRI scans as
is evident from the facts of the case.
i. Registration of MINI data on the MINI server was proportional to the

aim and object sought to be achieved
70
MacKenzie v. Canada (Department of National Health and Welfare), 88 F.T.R 52, (SCC: 1994).
71
Factsheet page 2 7
72
Factsheet page 1 5
73
Bevin P Engelward & Richard J Roberts, Open Access to Research Is in the Public Interest, PLOS Biology
48(2007).
74
E Giglia & A Swan, Open Access to Data for a New, Open Science, 48 European Journal of Physical and
Rehabilitation Medicine 714(2012).
75
PL Taylor, Research Sharing, Ethics and Public Benefit, Nature Biotechnology 398(2007).
76
Ibid.
77
National Institutes of Health, Policy on Enhancing Public Access to Archived Publications Resulting from
NIH-Funded Research,http://grants.nih.gov/grants/guide/notice-files/NOT-OD-05-022.html.
PAGE 25
39. Proportionality is a test to determine whether an interference with a prima facie right is
justified.78
The policy interfering with the right must pursue a legitimate goal.
There must be a rational connection between the policy and the achievement
of the goal.
The law must be necessary in that there is no less intrusive but equally
effective alternative
The law must not impose a disproportionate burden on the right-holder
The principle of proportionality requires that advantages due to limiting the right are not
outweighed by the disadvantages to exercise the right. The limitation on the right must be
justified. Safeguards accompanying a measure can support the justification of a measure.79
40. In the instant case all states approved the establishment of centres for research on MINI
except the state of Mullu. Therefore the collection of MINI data was approved by the Union
of Natruland. The collection and use of MINI data didnt violate the right to privacy making
the action in accordance with law.
ii. Overriding public interest in collection MINI data
41. The public interest can be invoked to allow the disclosure of information about risk of
significant harm to public safety, public health, or the environment. In Clubb v Saanich 80 it
was held that "The public is, however, truly 'interested' in matters that may affect the health
or safety of children. 'Public interest' includes both the concerns of society generally and
the particular interests of identifiable groups.81
42. Data sharing is not, in human rights terms, objectionable in itself. Indeed, the sharing of
personal data may sometimes be positively required in order to discharge the States duty to
take steps to protect certain human rights, such as the right to life 82, and it is also in principle
capable of being justified by sufficiently weighty public interest considerations.
43. MINI could be put to multiple uses such as curing cancer and enabling better MRI scans 83
which would prove to be highly beneficial for the welfare of the public i.e. citizen of
Natruland. Mr. Abhrish Natruka who discovered MINI (Multiplying Innate Nano Inhibitors)
78
Kai Moller, Proportionality: Challenging the Critics, 10 Int'l J. Const. L. 709, 731 (2012).
79
European Data Protection Supervisor, Necessity and Proportionality,https://edps.europa.eu/data-
protection/our-work/subjects/necessity-proportionality_en
80
35 Admin LR, (2d) 309(District: 1996), para. 33
81
RJR MacDonald Inc v Canada (Attorney General), 1 SCR 311, (SCC: 1994) para 344.
82
Edwards v UK, 35 EHRR 487, (ECHR: 2002).
83
Factsheet page1 para 5.
PAGE 26
established a standalone server for the registration of MINI number which captured essential
biometric information of the user along with DNA profile 84. Procedural safeguard existed in
the form that the security metric and layer protection of the server was so high that no one
had been able to breach or hack into the system. 85 In the instant case a legitimate interest was
involved in collecting and processing of personal data on the MINI server as the data which
was collected gave rise to public benefit arising from scientific research based on data
collected and processed86
iii. Medical care benefits and advancement of scientific research
44. In Mr X v. Hospital Z87 Supreme Court of India observed that where there is a clash of
two fundamental rights as in this case right to privacy of one party as part of right to life and
right to lead a healthy life of another party which is also a fundamental right under the right
to life and liberty, the right which would advance the morality or public interest would alone
be enforced through the process of court, for the reason that moral considerations cannot be
kept at bay.
45. Restrictions of the right to privacy are justifiable when it is considered in relation to its
functions in society. It must be balanced against other fundamental rights.88In the instant
case MINI could be put to multiple uses from curing cancer to enabling better MRI scans.
There existed a pressing social need89 to approve the use of MINI as Mullu had a high
prevalence of cancer and it was being used widely for its detection and cure.90
46. Right to health and medical care is a fundamental human right 91. It is indispensable for the
exercise of other human rights. Every human being is entitled to the enjoyment of the
highest attainable standard of health conducive to living a life in dignity92. In the case of
Vincent Panikulangara v. Union of India 93 it was held, It is the obligation of the state to
ensure the creation and sustaining of conditions congenial to good health. Maintenance and
improvement of public health have to rank high as these are indispensable to the very
84
85
86
Justice K S Puttaswamy (Retd.) v. Union of India & Ors . SCC OnLine SC 996, (SC: 2017) (Sanjay Kaushal
J.) para 70 and 73.
87
8 SCC 296 (SC: 1998).
88
Justice K S Puttaswamy (Retd.) v. Union of India & Ors. SCC OnLine SC 996, (SC: 2017) (Sanjay Kaushal
J.) para 73.
89
Handyside v. the United Kingdom, 5 ECHR (ECHR: 1976), para 48-50; Silver v. the United Kingdom, 5
EHRR 347(ECHR: 1983), para 97-98; Lingens v. Austria, 8 EHRR 407(ECHR: 1986), para 37-41.
90
91
UDHR art. 25; ICSCR art. 12.
92
CESCR General Comment No. 14, The Right to the Highest Attainable Standard of Health art. 12.
93
AIR SC 990, (SC:1987).
PAGE 27
physical existence of the community Attending to public health, is therefore of high

priority- perhaps the one at the top. It is for the state to secure health to its citizens as its
primary duty. It is one of the most sacrosanct and valuable rights of a citizen, and an equally
sacrosanct and sacred obligation of the state, thus the state must look towards performing
this obligation with top priority94. This in turn will not only secure the rights of its citizens to
their satisfaction, but will benefit the Union of Natruland in achieving its social, political and
economic goals. Therefore the Union of Natruland had a positive obligation to advance
medical care and scientific research in MINI.
47. Instances where large public interest is involved society will accept the invasion of privacy
for scientific research purposes as permissible and reasonable. Thus, where the general
welfare such as social welfare work in the protection of the public health requires it and due
process is observed, society permits the taking personal information. 95Therefore the
registration of MINI data on the MINI server was done with a legitimate aim and the extent
of interference in data privacy was proportional to the need of such interference as the
collection and use of MINI data serves an overriding public interest.
2. The procurement of MINI data and registration forms by Mulluworks does

not amount to violation of right to privacy.
48. Secrecy of someones personal information can be maintained by either hiding the
information or hiding what makes it personal i.e. anonymity 96. Mr. Gulla, the owner of
Mulluworks was a supporter of the right to privacy. He never allowed names or identities to
be cross linked with the data.97 Data are anonymised if all identifying elements have been
eliminated from a set of personal data. No element may be left in the information which
could, by exercising reasonable effort, serve to re-identify the person(s)
concerned.98Therefore the collected data was anonymised. Where data has been successfully
anonymised, they are no longer personal data.99
94
State of Punjab v Ram Lubhaya Bagga 4 SCC 117, (SC: 1998) para 26; Paschim Banga Khet Mazdoor
Samity & ors v. State of West Bengal & Ors, 4 SCC 37, (1996) para 9.
95
Orville G. Jr. Brim, Privacy and Behavioral Research, 65 Colum. L. Rev. 1184, 1201-1211 (1965).
96
Jeffrey M. Skopek, Reasonable Expectations of Anonymity,101 Virginia Law Review, 751 (2015).
97
98
European Union Agency for Fundamental Rights, Handbook on European data protection, 44 (2014).
99
id.
PAGE 28
49. Since the data collected was not cross linked with names of the individuals concerned by
Mulluworks making the data unidentifiable and remained anonymous therefore such
collection of data didnt violate the right to privacy.
50. In the instant case Mr. Abrish Natruka wanted MINI to be freely available for research by all
and sundry and therefore did not seek any intellectual property restrictions over the
derivation and exploration of MINI and its possible uses. He freely issued licenses for access
to the MINI to anyone who sought it for the purpose of research making the data available in
public domain. Public domain is defined as an intellectual property, such as a creative work,
invention or logo that is not or no longer protected by copyright and available to be used
without permission or authorization from its owner.100 ). Once personal data are lawfully and
officially in the public domain, individuals can have no reasonable or realistic expectation of
any restrictions on their use. Therefore MINI data was such information that was
unencumbered by intellectual property rights. Mulluworks procured the MINI data which
was already in public domain to be used for all possible uses.
100
Public domain, Black's Law Dictionary (2nd. 2014).
PAGE 29
PRAYER
IN THE LIGHT OF THE ARGUMENTS ADVANCED , CASES AND AUTHORITIES CITED ABOVE ,
THE RESPONDENT HUMBLY REQUESTS THE HONBLE SUPREME COURT OF NATRULAND
TO HOLD , A DJUDGE AND/OR D ECLARE THAT:
I. THE TRANSFER PETITION ALONG WITH THE WRIT PETITION FILED IS NOT
MAINTAINABLE .
II. THE RESTRICTIONS IMPOSED ON OUTSIDERS AND THE SPECIAL STATUS PROVIDED FOR
MULLU AND ITS RESIDENTS IS NOT UNCONSTITUTIONAL .
III. THE REGISTRATION OF MINI DATA ON THE MINI SERVER BY MR. ABHRISH NATRUKA
AND THE SUBSEQUENT PROCUREMENT OF MINI DATA AND REGISTRATION FORMS OF
INDIVIDUALS FROM THE HOSPITALS BY MULLUWORKS DOES NOT AMOUNT TO BREACH
OF PRIVACY .
AND/ OR PASS ANY OTHER ORDER, DIRECTION OR RELIEF THAT IT MAY DEEM FIT IN
THE BEST INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE .
FOR THIS ACT OF KINDNESS , THE RESPONDENT SHALL DUTY BOUND FOREVER PRAYS.
Place: Putru
Date: 14th October, 2017
PAGE 30
THE RESPONDENT
Sd/-
..............................
(COUNSEL FOR THE RESPONDENT )
PAGE 31

Respondent p7

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Respondent p7

Transféré par

Droits d'auteur :

Formats disponibles

11TH NALSAR JUSTICE B.R.

SAWHNY MEMORIAL MOOT COURT COMPETITION, 2017

IN THE HONBLE SUPREME COURT OF NATRULAND

WRIT PETITION NO. ________/2017

IN THE MATTER OF:

UNION OF NATRULAND & ORS.

COURT ON ITS OWN MOTION V. UNION OF NATRULAND & ORS.

AS SUBMITTED TO THE HONBLE JUSTICES OF SUPREME COURT OF

MEMORIAL ON BEHALF THE RESPONDENTS

THE INDEX OF AUTHORITIES........................................................................................2-5

I. WHETHER THE WRIT PETITION IN THE PRESENT CASE IS MAINTAINABLE

PROVIDED FOR MULLU AND ITS RESIDENTS IS UNCONSTITUTIONAL ?..............16-

C. Union of Natruland is bound by customary international law of Pacta sunt

A. The classification between the resident of Mullu and citizens of

ABHRISH NATRUKA AND THE SUBSEQUENT PROCUREMENT OF REGISTRATION FORMS

WITH MINI DATA BY MULLUWORKS AMOUNTS TO BREACH OF PRIVACY ?

1. MINI server as an Open Access model to research output. .25- 28

6. W.E Butler, International Law and The International System,. (1987).

IS MAINTAINABLE BEFORE THE HON BLE COURT OF NATRULAND ?

2. WHETHER THE RESTRICTIONS PLACED ON OUTSIDERS AND THE SPECIAL

STATUS PROVIDED FOR MULLU AND ITS RESIDENTS IS UNCONSTITUTIONAL?

3. WHETHER THE REGISTRATION OF MINI ON THE MINI SERVER BY MR.

ABHRISH NATRUKA AND THE SUBSEQUENT PROCUREMENT OF REGISTRATION

FORMS WITH MINI DATA FROM HOSPITALS BY MULLUWORKS AMOUNTS TO

THE SUMMARY OF ARGUMENTS

1) WHETHER THE INSTANT TRANSFER PETITION ALONG WITH THE

3) WHETHER THE REGISTRATION OF MINI DATA ON THE MINI SERVER

I. WHETHER THE INSTANT WRIT PETITION IS MAINTAINABLE BEFORE THE

1. The Supreme Court of Union of Natruland does not have jurisdiction to

i. The petitioner has no locus standi to file the writ petition

1. No state action involved with respect to legal injury

4. In the case of S.P Gupta v. President of India5, it was held that:

5. In the case of Union of India v. T.R. Varama7, it was observed that:

It is well-settled that when an alternative and equally efficacious remedy is open to a

i. Right to property is not a human right

7. Article 17 of the Universal Declaration of Human Rights (hereinafter referred to as UDHR)

II. WHETHER THE RESTRICTIONS IMPOSED ON OUTSIDERS AND THE SPECIAL

STATUS PROVIDED FOR MULLU AND ITS RESIDENTS IS UNCONSTITUTIONAL?

the Union of Natruland. In the Union of Natruland, the jurisprudence of domestic

B. Instrument of accession is a treaty between the state of Mullu and Union

C. Union of Natruland is bound by customary international law of Pacta sunt

D.The States obligation to abide by customary international law will

E. Not abiding by the obligations under the Instrument of Accession in

2. There is no violation of right to equality of Mr. Gulla

A. The classification between the resident of Mullu and citizens of Natruland is

B. The classification has rational nexus to the object sought to be achieved

III. W HETHER THE REGISTRATION OF MINI ON THE MINI SERVER BY MR.

ABHRISH NATRUKA AND THE SUBSEQUENT PROCUREMENT OF REGISTRATION

FORMS WITH MINI DATA FROM HOSPITALS BY MULLUWORKS AMOUNTS TO

1. MINI server as an Open Access model to research output.

37. The prevalence of Open Access in effect has four-fold implications:-

i. Registration of MINI data on the MINI server was proportional to the

ii. Overriding public interest in collection MINI data

iii. Medical care benefits and advancement of scientific research

physical existence of the community Attending to public health, is therefore of high

2. The procurement of MINI data and registration forms by Mulluworks does

MULLU AND ITS RESIDENTS IS NOT UNCONSTITUTIONAL .

INDIVIDUALS FROM THE HOSPITALS BY MULLUWORKS DOES NOT AMOUNT TO BREACH

Vous aimerez peut-être aussi