3rd Intra College Moot Court Competition,2016

IN THE HONBLE HIGH COURT OF DELHI

WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF

INDIA

IN PETITIONNO:-______________/2016

IN THE MATTER OF

Mrs. Sangh Mitra

PETITIONER
V.

Hilton International

RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS

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TABLE OF CONTENTS
a)
b)
c)
d)
e)
f)
g)

Statement of jurisdiction..................................................................................3
Index of Authorities .........................................................................................4
Statement of facts.5
Statement of Issues ... 6
Summary of arguments....................................................................................7
Arguments advanced8
Prayer13

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STATEMENT OF JURISDICTION

The Honble High Court of Delhi has the inherent jurisdiction to try, entertain and dispose off
the present case by virtue of Article 226 of the Constitution of India.

INDEX OF AUTHORITIES
(A) CASES CITED
1) Ujjammbai v. State of U.P. AIR 1962 SC 1621

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2) Federal bank v. Sagar Thomas , (2003) 10 SCC 733
3) M.C Mehta v. Shri ram Fertilizers Ltd1987 AIR 1086, 1987 SCR (1) 819
4) Som Prakash v. Union of India AIR 1981 SC 212
5) Star Enterprises v. C.T.D.C of Maharashtra Ltd., (1990) 3 SCC 280
6) Anandi Mukti Sadguru Shree Mukta... v. V.R. Rudani & ors1989 AIR 1607, 1989
SCR (2) 697
7) Harendra Chandra Das v. Guhati University1953 CWN 54
8) Virendra Kumar Srivatsava v. U.P. Rajya Karmachari Kalyan Nigam,
(2005) 1 Supreme Court Cases 149
9) Pradeep Kumar Biswas [(2002) 5 SCC 111]
10) Munn v. Illinois (1877) 94 U. S. 113
11) Smt. Maneka Gandhi v. Union of India & Anr. 1978 AIR 597, 1978 SCR (2) 621
12) R. Rajagopal vs. State of T.N 1995 AIR 264, 1994 SCC (6) 632

(B) Books Reffered

a) Indian Constitutional Law- By professor M.P Jain
b) Constitution of India V.N shukla
c) Constitutional Law- J.N Pandey
(C) Other Sites
a) https://indiankanoon.org
b) www.lawnotes.in/
c) http://www.commonlii.org/in/journals/INJlConLaw/2007/12.pdf
d) http://www.legalservicesindia.com/article/article/right-to-privacy-under-article21-and-the-related-conflicts-1630-1.html
e) http://cis-india.org/internet-governance/publications/limits-privacy.pdf
f) http://nalsarijcl.in/wp-content/uploads/2012/06/13.-The-Fundamental-Right-toPrivacy-A-Case-by-Case-Development-Sans-Stare-Decisis.pdf
STATEMENT OF FACTS
1) The petitioner, Mrs. Sangh Mitra , a 38 year old married lady is working in a
multinational company , HILTON INTERNATIONAL , the respondent in the

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following case as a software engineer. The company is specialized in making
electronic goods and is situated in Delhi.
2) The petitioner works from 9:30 in the morning till 5:30 P.M and the weekends are
off. When she joined the company on 26th October 2015, she provided the
respondent party with some of the personal details which included her contact
number ..
3) Mrs. Sangh Mitra, the petitioner was having Mr. Siddharth as her immediate boss
and as described he can be termed as workoholic. His age is 60, unmarried and
contributes more hours to the company than the requisite working hours and he
hardly goes on leave.
4) On 17th March 2016, the petitioner, Mrs. Sangh Mitra received a call from her boss
i.e ; Mr. Siddharth at 11:30 P.M related to work matter but that can't be termed as
urgent and this was the 5th time he has called him despite various warnings from
the petitioner. The petitioner being a married lady, was disturbed by such calls from
his boss and has made several complaints to the company. She even met the
managing director of the company and requested him to look into the matter, but it
happened like the company turned a deaf ear to my client , Mrs. Sangh Mitra's
complaints and even warned them that she would approach the court.
5) The petitioner's personal life has been ruined by repeated calls from Mr.
Siddharth, as there are strains in her relationship with her husband. The
petitioner, Mrs. Sangh Mitra lives in a civilized family and she has got some
personal time apart from the fact that she is employee to the the company and has
some certain obligations.
6) The petitioner did gave her contact number but that was in the case of urgencies and
as a employer, the respondent " Hilton International" had a moral a well as legal
duty to hear her complaints and take action but they did not.
7) Mrs. Sangh Mitra, the petitioner has therefore filed a writ petition under the
Article 226 of the constitution of India.
STATEMENT OF ISSUES
1) WHETHER

THE

MULTINATIONAL

COMPANY,

"HILTON

INTERNATIONAL" FALLS UNDER THE STATE WITH RESPECT TO

ARTICLE 12 OF CONSTITUTION OF INDIA OR NOT?

2) WHETHER THE WRIT PETITON IS MAINTAINABLE OR NOT?

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3) WHETHER THERE IS INFRINGEMENT OF RIGHT TO PRIVACY OF THE

PETITIONER OR NOT?

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SUMMARY OF ARGUMENTS
1) WHETHER THE MULTINATIONAL COMPANY, "HILTON
INTERNATIONAL" FALLS UNDER THE STATE WITH RESPECT TO
ARTICLE 12 OF CONSTITUTION OF INDIA?
It is emphatically contended that, according to functional and control test
enunciated by the supreme court in previous cases, the respondent "Hilton
International" comes under the state amid of article12 of constitution of India.
2) WHETHER THE WRIT PETITON IS MAINTAINABLE OR NOT?
Yes, with respect to Article 226 of the constitution of India, there is the violation
of a fundamental right of the petitioner Mrs.Sangh Mitra and the respective high
court is surely having the jurisdiction to handle this case and this writ petition is
maintainable.
3) WHETHER THERE IS INFRINGEMENT OF RIGHT TO PRIVACY OF
THE PETITIONER OR NOT?
Yes, there is infringement of the right to privacy with respect to Article 21 of the
constitution. The petitioner Sangha Mitras fundamental right of living her
personal life without any interference has been infringed by the employer
Mr.Sidhharth.

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ARGUMENTS ADVANCED
1) WHETHER THE MULTINATIONAL COMPANY, "HILTON
INTERNATIONAL" FALLS UNDER THE STATE WITH RESPECT TO
ARTICLE 12 OF CONSTITUTION OF INDIA?
A) NATURE, SCOPE AND EXTENT OF ARTICLE 12
Article 12 states that, unless the context otherwise requires, "the state"
includes
i) the Government and parliament of India and the government and
ii) the legislature of each of the states and
iii)
all local or other authorities within the territory of India or under control
of the Government of India.
According to the facts, Hilton international falls under the "other authorities"
clause of article 12 of constitution of India. It do states that it could only
mean authorities exercising governmental or sovereign functions but in the
preview of few case laws the scope of article 12 do takes the respondent "
Hilton International " within its ambit.
B) THE RESPONDENT COMES WITHIN THE AMBIT OF ARTICLE 12
1) In the famous case law Ujjammbai v. State of U.P.1 the court rejected
this restrictive interpretation of the expression ' other authorities' given by
the madras high court and held that the ejusdem generis rule could not be
restored to interpreting this expression.
2) Hilton international is a private corporation but based on many
judgements from the hon'ble supreme court taking in regard with of the
case Federal bank v. Sagar Thomas2. The Federal Bank, saying that it is
a private bank and not a State or its agency or instrumentality, within the
meaning of Article 12 of the Constitution of India , therefore there can be
no charges against the bank. The learned single Judge, however, found
that the Federal Bank performs public duty. The activities carried on by
the bank are vital to public interest and have potential to affect the socioeconomic development and growth of the nation and hence the federal
1 AIR 1962 SC 1621
2 (2003) 10 SCC 733

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bank being a private corporation still comes under the state. Therefore
same comes for the Hilton International it renders electronic goods and
thus imparts a public duty and has potential to affect the socio- economic
development and growth of nation therefore Hilton International comes
within the ambit of state.
3) It is to be submitted that in M.C Mehta v. Shri ram Fertilizers Ltd3 the
Court expanded the ambit of Art.12 primarily due to the social
consequences of our corporate structure. The Court stressed that the
ambit of Art.12 needs to be enlarged so as to bring private companies also
under the discipline of fundamental rights. And Court was fully convinced
that Shri ram was State within the ambit of Art. 12 so as to prevent the
Company from infringing the fundamental Right to Life of many people
4) In Som Prakash v. Union of India4 , the court held that the expression
'other authorities' would include all constitutional or statutory authorities
on whom powers were conferred for the purpose of carrying commercial
activities or bodies created for the purpose of promoting economic
activities. The expression ' other authorities' was not confined only to
statutory corporations alone but would include a government company, a
registered society, or bodies which have some nexus to the government.5
(2) WHETHER THE WRIT PETITON IS MAINTAINABLE OR NOT?
NATURE, SCOPE AND EXTENT OF ARTICLE 226.
Article 226 provides that notwithstanding anything in Article 32 , every
High Court shall have power, throughout the territorial limits in relation
to which it exercises jurisdiction to issue to any person or authority
including the appropriate cases, any Government ,within those
territories ,directions, orders of writs ,including writs in the nature of

3 1987 AIR 1086, 1987 SCR (1) 819

4 AIR 1981 SC 212
5 Star Enterprises v. C.T.D.C of Maharashtra Ltd., (1990) 3 SCC 280

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habeascorpus,mandamus,prohibition, quo warranto and certiorari or any
of them:(a)for the enforcement of fundamental rights conferred by Part III and
(b)for any other purpose.
Thus the jurisdiction of High Court is not limited to the protection of the
fundamental rights but also other legal rights as is clear from the words
any other purpose.
In Anandi Mukti Sadguru Shree Mukta... v. V.R. Rudani & ors6 the
hon'ble Supreme Court stated that Article 226 confers power on the High
Courts to issue writs for enforce- ment of the fundamental rights as well
as non fundamental rights. The words "Any person or authority" used
in Article 226 are, therefore, not to be confined only to statutory
authorities and instrumentalities of the State. They may cover any other
person or body performing public duty. The form of the body concerned
is not very much relevant. What is relevant is the nature of the duty
imposed on the body. The duty must be judged in the light of positive
obligation .owed by the person or authority to the affected party. No
matter by what means the duty is imposed. If a positive obligation exists
mandamus cannot be denied.

6 1989 AIR 1607, 1989 SCR (2) 697

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2) Hence the writ petition by Mrs. Sangh Mitra is maintainable.
In Harendra Chandra Das v. Guhati University7, the judgement by Sarjoo
Prosad, C.J. read like" ordinarily,

however, a Court would be most reluctant to

interfere with the internal discipline of the University and its autonomous
working under the Statute. An august body of such importance is entitled to all
the reasonable latitude which its position deserves. I was, therefore, anxious that
the authorities themselves would realise their mistake and would rectify the
wrong which they had done to the petitioner, but I understand that, in spite of my
having given them sufficient opportunity to do so, they have consistently refused
to consider the claim of the petitioner. As I have said above, the University is a
creature of the Statute and must obey the rules and regulations by which it
professes to be bound, If it acts in violation of those rules and thereby adversely
affects the rights of others, its conduct Is open to question. I have, therefore, no
other alternative but to direct that the rules and regulations framed by the
University should be strictly followed."
In Virendra Kumar Srivatsava v. U.P. Rajya Karmachari Kalyan Nigam,
reported in (2005) 1 Supreme Court Cases 149, the sole point that arose for
decision before the Supreme Court was, whether U.P. Rajya Karmachari Kalyan
Nigam (Corporation) was covered by the definition of 'State' under Article 12 of
the Constitution and was amenable to writ jurisdiction of the High Court
under Article 226 of the Constitution. In that case the services of the petitioner
had been terminated from the post of salesman in one of the stores of the
Corporation, against which he had approached the High Court, Allahabad. A
preliminary objection was raised by the Corporation to the maintainability of the
writ petition on the ground that the Corporation does not fall in the definition of
"State" under Article 12 of the Constitution. The writ petition filed by the
petitioner in the High Court was dismissed as not maintainable, against which the
petitioner has preferred the appeal to the Supreme Court. After analysing the
factual materials and various factors, ultimately Their Lordships have concluded
thus: ( para 27) "27. On detailed examination of the administrative, financial and
functional control of the Corporation, we have no manner of doubt that it is
nothing but an "instrumentality" and agency of the State" and the control of the
State is not only "regulatory" but it is "deep and pervasive" in the sense that it is
7 1953 CWN 54

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formed with the object of catering to the needs of the government employees as a
supplement to their salaries and other perks. The top executives of the
government department ex officio are members and office-bearers of the
Corporation. The Corporation is fully supported financially and administratively
by the State and its authorities. Even day-to-day functioning of the Corporation is
watched, supervised and controlled by the various departmental authorities of the
State particularly the Department of Food and Civil Supplies. The multiple test
indicated to be applied both by the majority and minority view in Pradeep
Kumar Biswas [(2002) 5 SCC 111] is fully satisfied in the present case for
recording a conclusion by us that the Corporation is covered as an " agency and
instrumentality of the State" in the definition of "State" under Article 12 of the
Constitution. It is, therefore, amenable to the writ jurisdiction of the High Court
under Article 226 of the Constitution."
Therefore with view of the above caselaws , the writ petition filed by Ms. Sangh
Mitra is maintainable and mandamus can be guaranteed .

3) WHETHER THERE IS INFRINGEMENT OF RIGHT TO PRIVACY OF

THE PETITIONER OR NOT?
(A) NATURE, SCOPE AND EXTENT OF ARTICLE 21
Article 21 of the constitution of India states that No person shall be deprived of his
life or personal liberty except according to procedure established by law. After
reading the Article 21, it has been interpreted that the term life includes all those
aspects of life which go to make a mans life meaningful, complete and worth
living. The right to life enshrined in Article 21 has been liberally interpreted so as to
mean something more than mere survival and mere existence or animal existence.
The expression "life" used in that Article cannot be confined only to the taking away
of life, i.e., causing death. In Munn v. Illinois8, Field, J., defined "life" in the
following words: "Something more than mere animal existence. The inhibition
against its deprivation extends to all those limbs and faculties by which life is
8 (1877) 94 U. S. 113

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enjoyed. The provision equally prohibits the mutilation of the body by the
amputation of an arm or leg, or the putting out of an eye, or the destruction of any
other organ of the body through which the soul communicates with the outer
world." The expression "liberty" is given a very wide meaning in America. It takes
in all the freedoms. In Bolling v. Sharpe (2), the Supreme Court of America
observed that the said expression was not confined to mere freedom from bodily
restraint and that liberty under law extended to the full range of conduct which the
individual was free to pursue.
In the Nakheeran case [R. Rajagopal vs. State of Tamil Nadu (1994) 6 SCC
632], the court said:
The right to privacy is implicit in the right to life and guaranteed to the citizens of
this country by Article 21. It is a right to be left alone'. A citizen has a right to
safeguard the privacy of himself, his family, marriage, procreation, motherhood,
child-bearing and education, among other matters.
Article 12 of the Universal Declaration of Human Rights (1948) defines privacy in
the following terms: "No one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence or to attacks upon his honour and
reputation. Everyone has the right to the protection of the law against such
interference or attacks.

(B) PETITIONERS RIGHT TO PRIVACY IS INFRINGED

Sangha Mitra who works at Hilton International gets her fundamental right to
privacy infringed because of the calls after the working hours from her immediate
boss Mr.Sidhharth. After the working hours gets over the employee is not obliged to
work for the company.
Once the working hours gets over then the employee has a right to live his personal
life without any disturbance except in the case of emergencies. According to the
companies policy the working hours of the petitioner Sangh Mitra are 9:30am to
5:30pm, therefore, she is obliged for the companies work only till the working hours

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not after that and disturbing her after the working hours simply implies that her
fundamental right of rihjt to privacy has been infringed.
In Smt. Maneka Gandhi v. Union of India & Anr.9, in this case SC 7 Judge Bench
said personal liberty in article 21 covers a variety of rights & some have status of
fundamental rights and given additional protection under article 19.
The Court observed:The law must therefore now be settled that Article 21 does not
exclude Article 19 and that even if there is a law prescribing a procedure for
depriving a person of personal liberty, and there is consequently no infringement of
the fundamental right conferred by Article 21 such a law in so far as it abridges or
takes away any fundamental right under Article 19 would have to meet the
challenges of that Article.
The case is considered a landmark case in that it gave a new and highly varied
interpretation to the meaning of life and personal liberty under Article 21 of the
Constitution. Also, it expanded the horizons of freedom of speech and expression to
the effect that the right is no longer restricted by the territorial boundaries of the
country. In fact, it extends to almost the entire world. Thus the case saw a high
degree of judicial activism, and ushered in a new era of expanding horizons of
fundamental rights in general, and Article 21 in particular.
Also considering the R. Rajagopal vs. State of T.N10 honble Supreme Court said
that, A citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child bearing and education among many other matters. In
this case right of a prisoner to privacy recognized. Similarly, in the present case the
constant calls from Mr.Sidhharth were creating problems in the married life of the
petitioner. Despite of the warnings given by the Sangha Mitra the calls were still
continued and the Company high officials also did not paid attention to her
complaints.

1978 AIR 597, 1978 SCR (2) 621

10 1995 AIR 264, 1994 SCC (6) 632

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Petitioners right to privacy has been infringed and she has a right to seek justice
from the High Court through the petition.

PRAYER

Wherefore in the lights of facts stated, issue raised, arguments advanced and
authorities cited, it is most humbly prayed this Honble High Court that it may
graciously be pleased to:
1. Your Lordship may be pleased to entertain the writ petition.
2. Keeping in the view the case of Som Prakash v. Union of India, kindly consider
the Hilton international Company a State under the ambit of Article 12 of the
Constitution of India.
3. The petitioner prays that a direction in the form of a writ of mandamus or any
other appropriate writ be issued and the right to privacy of petitioner is ensured.

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It is further prayed that the respondent be burdened with costs. And for this act of
kindness, The Petitioner shall remain obliged as in duty bound.
COUNSELS FOR THE PETITIONER.