Under Article 226 of The Constitution of Republic of Shalvak

TC - 14P
The NHRC – RGNUL HUMAN RIGHTS NATIONAL MOOT COURT

COMPETITION, 2023
IN THE HIGH COURT OF BHANU PRADESH
WRIT PETITION(Civil) No. 22/2022
UNDER ARTICLE 226 OF THE CONSTITUTION OF
REPUBLIC OF SHALVAK
IN THE MATTER BETWEEN
CENTRE FOR THERAPEUTIC LEGAL HEALING
…. Petitioners
versus
STATE OF BHANU PRADESH AND OTHERS
…. Respondents
MEMORIAL ON BEHALF OF THE PETITIONER
Page | II
MEMORIAL for PETITIONERS TABLE OF CONTENTS
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ................................................................................................ III
INDEX OF AUTHORITIES ................................................................................................... V
STATEMENT OF JURISDICTION .................................................................................... XII
STATEMENT OF FACTS ................................................................................................. XIII
STATEMENT OF ISSUES .................................................................................................. XV
SUMMARY OF ARGUMENTS .......................................................................................... XVI
ARGUMENTS ADVANCED.................................................................................................... 1
I. THE PRESENT CASE IS MAINTAINABLE IN THE HIGH COURT OF BHANU

PRADESH. ................................................................................................................................ 1
A. REPUBLIC OF SHALVAK IS BOUND TO FOLLOW INTERNATIONAL

OBLIGATIONS. .................................................................................................................. 1
B. PETITIONER HAVE AN ENFORCEABLE LEGAL AND FUNDAMENTAL

RIGHT................................................................................................................................... 3
C. HIGH COURT OF BHANU PRADESH IS THE MOST APPROPRIATE

FORUM TO HEAR THE PRESENT DISPUTE. ............................................................. 4
i. The Petitioner has the locus standi to file the Petition. ......................................................................... 4
ii. High Court can issue a writ if the cause of action arises within its territorial jurisdiction. ................... 5
iii. There is no alternate remedy available for the Petitioner. ..................................................................... 5
II. THE HIGH COURT OF BHANU PRADESH CAN DIRECT FOR

FORMULATION OF MENTAL HEALTH REGULATION RELATED LAWS AND
POLICY GUIDELINES. .......................................................................................................... 6
A. RIGHT TO MENTAL HEALTH IS A HUMAN RIGHT. ................................... 7
B. HIGH COURT CAN DIRECT FOR THE FORMULATION OIF

GUIDELINES WHEN THERE IS A LACUNA. .............................................................. 8
Page | II
III. THE US BASED E-COMMERCE PLATFORM ‘FLIPDEAL’ IS LIABLE FOR
FACILITATING THE SALE OF UNPRESCRIBED MEDICINE. .................................... 10
A. ‘FLIPDEAL’ IS NOT ENTITLED TO ‘SAFE HARBOUR’ PROTECTION

FOR INTERMEDIARIES U/S 79 OF IT ACT. .............................................................. 10
B. FLIPDEAL IS IN CONTRAVENTION OF CONSUMER PROTECTION (E-

COMMERCE) RULES, 2020 AND CONSUMER PROTECTION ACT, 2019 .......... 12
IV. THE PHARMACEUTICAL COMPANY ‘MOON PHARMACEUTICAL PVT.

LTD.’ IS LIABLE FOR MANUFACTURING THE DRUG WHICH IS CONTENDED TO
BE DANGEROUS FOR HEALTH. ....................................................................................... 13
A. THE MANUFACTURING OF MEDICINE ‘CALIOREGAMANTLE’

VIOLATES RIGHT TO HEALTH ENSHRINED UNDER ARTICLE 21. ................. 14
B. THE MANUFACTURING OF MEDICINE ‘CALIOREGAMANTLE' IS

AGAINST THE PROVISIONS OF DRUGS AND COSMETICS ACT ....................... 15
C. THE MANUFACTURING OF MEDICINE ‘CALIOREGAMANTLE'

CONTRAVENES THE CONSUMER PROTECTION ACT, 2019 .............................. 16
PRAYER ............................................................................................................................ XVIII
Page | II
LIST OF ABBREVIATIONS
ABBREVIATIONS EXPANSION
% Percentage
(C) Civil
§ Section
¶ Paragraph
A.P. Andhra Pradesh
AIR All India Reporter
ALR Analytical Ledger Review
Anr. Another
Co. Company
CONSTI. Constitution
Corpn. Corporation
DB Division Bench
Deptt. Department
HC High Court
Hon’ble Honourable
Page | III
MEMORIAL for PETITIONERS LIST OF ABBRIEVIATIONS
Id. Ibid
IT Information Technology
Ltd. Limited
M.P. Madhya Pradesh
No. Number
Noti. Notification
Ors. Others
Pvt. Private
SC Supreme Court
SCC Supreme Court Cases
U.P. Uttar Pradesh
UOI Union of India
US United States
v. Versus
Vol. Volume
W.P. Writ Petition
WHO World Health Organisation
Page | IV
MEMORIAL for PETITIONERS LIST OF ABBRIEVIATIONS
INDEX OF AUTHORITIES
INDIAN CASES PAGE NO.
Alchemist Ltd. v. State Bank of Sikkim, (2007) 11 SCC 335. 5
Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759 1
Bhim Singh v. Union of India, (2010) 5 SCC 538 9
Bokaro and Ramgur Ltd. v. State of Bihar, 1962 Supp (3) SCR 831. 3
Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B., 1962 Supp (3) SCR 3
Chimanlal Jagjivan Das Sheth v. State of Maharashtra, 1963 Supp (1)

SCR 344 15
Christian Louboutin Sas v. Nakul Bajaj, 2018 SCC OnLine Del 12215 12
Consumer Education and Research Centre v. Union of India, (2010) 15

SCC 699 7
DDA v. Joint Action Committee, Allottee of SFS Flats, (2008) 2 SCC

672. 5
Devilal Modi v. STO, (1965) 1 SCR 686 9
Dr. Zaheer Ahmed v. The Union of India & Ors., W.P.(C) No.
11711/2018 11
Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd.,

(2008) 13 SCC 30. 1, 3
Google India Private Limited v. Visakha Industries and Ors., (2020) 4

SCC 162 10, 13
Gramophone Company of India Ltd. v. Birendrabahadur Pandey, (1984)

2 SCC 534; 1
J. Mohapatra & Co. v. State of Orissa, (1984) 4 SCC 103 4
Page | V
MEMORIAL for PETITIONERS INDEX OF AUTHORITIES
K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1 7
Kalpana Mehta v. Union of India, (2018) 7 SCC 1 9
Kaushal Kishor v. State of U.P., 2023 SCC OnLine SC 6 14
Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 SCC 304 15
Kirloskar Bros. Ltd. v. ESI Corpn., (1996) 2 SCC 682 6
LDA v. M.K. Gupta, (1994) 1 SCC 243 12
LIC v. Consumer Education & Research Centre, (1995) 5 SCC 482 7
Luxottica Group S.P.A. v. Mify Solutions Pvt. Ltd., 2018 SCC OnLine
Del 12307 11
Medley Pharmaceuticals Ltd. v. CCE, (2011) 2 SCC 601 15
Minister for Immigration and Ethnic Affairs v. Teoh, (1995) 128 ALR
353. 3
Mirza Ali Akbar Kashani v. United Arab Republic, (1966) 1 SCR 319. 1
National Legal Services Authority v. Union of India, (2014) 5 SCC 438 1, 9
Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545 7
P.N. Kumar v. Municipal Corpn. of Delhi, (1987) 4 SCC 609 9
Parmanand Katara v. Union of India, (1989) 4 SCC 286 4
Prakash Chandra Tiwari v. State of M.P., 1975 SCC OnLine MP 48 15
Prakash Singh v. Union of India, (2006) 8 SCC 1 9
Rattan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3 SCC 67 6
S.P. Gupta v. Union of India, 1981 Supp SCC 87 4
Secy., ONGC Ltd. v. V.U. Warrier, (2005) 5 SCC 245 5
Shaik Umar Farooq v. Flipkart & Ors., (2022), SCC OnLine NCDRC
519 13
Page | VI
State of H.P. v. Umed Ram Sharma, (1986) 2 SCC 68 7
State of Orissa v. Ram Chandra Dev, AIR 1964 SC 685. 3
T.K. Rangarajan v. Govt. of T.N., (2003) 6 SCC 581. 5
Tamil Nadu Chemists and Druggists Association v. Union of India, 2018

SCC OnLine Mad 3515 11
Tashi Delek Gaming Solutions Ltd. v. State of Karnataka, (2006) 1 SCC

442. 5
Tractor Export v. Tarapore & Co., (1969) 3 SCC 562; 1
Unni Krishnan, J.P. v. State of A.P., (1993) 4 SCC 111. 14
Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647. 3
Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165 14
Vishaka v. State of Rajasthan, (1997) 6 SCC 241 8
INTERNATIONAL CASES PAGE NO.
L’Oréal SA and others v. eBay International AG, (2012) Bus LR 1369 12
Oberdorf v. Amazon.com Inc. - 930 F.3d 136 (3d Cir. 2019) 13
STATUTORY PROVISIONS PAGE NO.
Consumer Protection Act (2019). Section 2(22)(ii). 17
Consumer Protection Act (2019). Section 2(47)(iv). 17
Consumer Protection Act (2019). Section 84(1)(e). 17
Consumer Protection Act (2019). Section 2(9)(ii). 16
Page | VII
Consumer Protection Act, 2019, § 2(17), No. 35, Acts of Parliament, 12
2019 (India).
Consumer Protection Act, 2019, § 2(7), No. 35, Acts of Parliament, 2019 12
(India).
Consumer Protection Act, 2019, § 47(iv), No. 35, Acts of Parliament, 13

2019 (India).
Consumer Protection Act, 2019, § 65(2), No. 35, Acts of Parliament, 12

2019 (India).
Drug Rules (1945). Part XV(A). 16
Drug Rules (1945). Rule 16, Part I, Schedule M. 16
Drug Rules (1945). Rule 16.6, Part I, Schedule M 16
Drug Rules (1945). Rule 71(2). 15
Drug Rules (1945). Rule 74(o). 16
Drug Rules (1945). Rule 79. 16
Drug Rules (1945). Rule 96(7)(xi). 16
Drug Rules (1945). Rule 97. 16
Drug Rules, (1945). Rule 124 11, 15
Drugs and Cosmetics Act, (1940) Section 16(1)(a). 11, 15
Information Technology Act, 2000, § 79(1), No. 21, Acts of Parliament, 10

2000.
Information Technology Act, 2000, § 79(2)(c), No. 21, Acts of 11

Parliament, 2000.
Page | VIII
Information Technology Act, 2000, § 87, No. 21, Acts of Parliament, 11
2000
Ministry of Consumer Affairs, Food and Public Distribution, E- 12

Commerce Rules, Rule 2(2) (2022).

Commerce Rules, Rule 6(5)(d) (2022).


The Information Technology, Intermediary Guidelines and Digital 11

Media Ethics Code Rules, Rule 3(1)(b)(v), (2021).
The Information Technology, Intermediary Guidelines and Digital 11

Media Ethics Code Rules, Rule 7 (2021)
Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of 9

Parliament, 2019
BOOKS PAGE NO.
3rd, P. Ramnatha Aiyar, Advanced Law Lexicon, LexisNexis (2017). 3
12TH, P J Fitzgerald, Salmond on Jurisprudence, (Pg. 446) Universal Law 3

Publishing Co. (2010).
6th, M.P. Jain, Indian Constitution Law, (Pg. 429), LexisNexis (2010) 4
Lord Denning, “Freedom under the Law”, The Hamlym Lectures (1949). 8
Justice Kurian Joseph, Judicial Legislation, (2016) 2 SCC J-18. 8
Page | IX
7th, Vol. 1, V.G. Ramachandran, Law of Writs, Eastern Book Company 10
(2022).
IP Massey, Administrative Law, Eastern Book Company, (2020). 11
ONLINE SOURCES PAGE NO.
Cambridge Dictionary, Cambridge University Press, Health, 14

https://dictionary.cambridge.org/dictionary/english/health.
Constitution of World Health Organization, Basic Documents, Forty-fifth 14
edition, Supplement, October (2006),
https://apps.who.int/gb/bd/PDF/bd47/EN/constitution-en.pdf.
Taxguru, Stop discriminate selling of medicines by e-commerce 13

companies: CAIT, Taxguru (Feb 2022, 01:59AM), Stop discriminate
selling of medicines by e-commerce companies: CAIT (taxguru.in).
World Health Organization, About us (who.int) (last visited Feb. 14, 2023). 1
World Health Organization, Guidelines on mental health at work, (2022), 2

Guidelines on mental health at work (who.int).
CONSTITUTIONAL PROVISIONS PAGE NO.
INDIA CONST. art. 51. 1
INDIA CONST. art. 21 4,6
INDIA CONST. art. 226. 4, 9
Page | X
INTERNATIONAL COVENANTS PAGE NO.
World Health Organization, Guidelines for the regulatory assessment of 2

medicinal products for use in self-medication, (Pg. 16-25) (2000),
WHO_EDM_QSM_00.1_eng.pdf.
Mental health law and the UN Convention on the Rights of Persons with 2
Disabilities, Volume 37, Issue 3 (International journal of law and
psychiatry), Pg. 245-252 (2014).
World Health Organisation, Principles for the protection of person with 7
mental illness and protection of mental health care, (Principle 6), 1991,
Principles for the protection of persons with mental illness and the
improvement of mental health care | OHCHR.
OTHERS PAGE NO.
Szmukler, George & Daw, Rowena & Callard, Felicity, Mental health law 2
and the UN Convention on the Rights of Persons with Disabilities, Volume
37, Issue 3 (International journal of law and psychiatry), Pg. 245-252
(2014).
Convention on the Rights of Persons with Disabilities, December 13, 2

2006, 2515 U.N.T.S
Ministry of Electronics and Information Technology, Intermediary 7

Guidelines and Digital Media Ethics Code GSR 139(E) (Feb 2021).
Universal Declaration of Human Rights (1948). Article 25. 14
Page | XI
STATEMENT OF JURISDICTION
THE PETITIONER HUMBLY SUBMITS THIS MEMORANDUM BEFORE THE HON’BLE HIGH COURT OF
BHANU PRADESH UNDER ARTICLE 226 OF THE CONSTITUTION OF REPUBLIC OF SHALVAK.
It sets forth the facts, contentions, and arguments in the present case in the jurisdiction of
the Petitioner.
PAGE | XII
MEMORIAL for PETITIONERS STATEMENT OF JURISDICTION

STATEMENT OF FACTS
REPUBLIC OF SHALVAK.
State of Bhanu Pradesh is a province in Republic of Shalvak. Among other six fundamental
rights, Article 21 of the Constitution is Right to life. The country enacted Health Act in 1956,
which has been amended only once in 1996. The present incident occurred in the Chandrikapur
district of State of Bhanu Pradesh.
ANTI-DEPRESSANT
Nandavan was suffering severe depression due to continuous harassment, and pressure at
workplace. He was the sole breadwinner of the family and was tensed that if he loses his job
due to office politics his family would have to go through tremendous hardships. Consequently,
he felt the need to treat his depression and tried finding anti-depressant medicines that were
available in the market without prescription, He purchased the same online from Flipdeal.
Consequently, he started taking ‘Calioregamantle’ tablet manufactured by Moon
Pharmaceuticals Pvt. Ltd. as anti-depressant.
THE INCIDENT
On 4th December 2022 he had some altercations with his supervisor at office. It included
physical and verbal confrontations between him and his supervisor. He was told that strict
actions will be taken against him. Which meant that his job was in danger. He had no resort
because there were no policies in the workplace regarding organisational behaviour related
training and no counsellor was available to whom he could share about his mental health.
After the altercation he returned home and had dinner with family, and within two hours of it
all the family members died due to heavy dose of Calioregamantle medicine. In his suicide
note he did not hold anybody responsible for his death and it was due to extreme pressure he
was compelled to take this step. Only one suicide note was recovered and that was from
Nandavan, therefore, the Police assumed that Nandvan had secretly mixed the Calioregamantle
medicine in the dinner food that was consumed by the rest of the family members.
CHARGESHEET
The F.I.R was filed on 6Th December 2022. Police registered the case of unnatural death. The
chargesheet included the names of the supervisor and some colleagues of Nandavan’s office
PAGE | XIII
MEMORIAL for PETITIONERS STATEMENT OF FACTS

who were present at the time when altercation happened. It also included the names of
pharmaceutical company ‘Moon Pharmaceutical Pvt. Ltd'. and the e-commerce platform
‘Flipdeal’ that was selling the Calioregamantle medicine. The matter was listed in the Sessions
Court.
FLIPDEAL
It is the e-commerce platform which facilitates the sale of the Calioregamantle medicine and it
is based in the United States of America. The medicine is listed as ‘available’ when the
investigation was being done. The web portal contained information about the medicine and
stated some imprecise precautions about it. It also mentioned that it will not cause much side
effects and will not cause any harm to nervous system. It also mentioned that the medicine can
be taken after food twice in a day and will cause a calming and relaxing effect on the body.
But the e-commerce platform does not have any nodal officer or grievance redressal
officer/office situated in the said country. There are no restrictions on the buyer on purchasing
the medicine in any quantity as it is available in larger stock.
MOON PHARMACEUTICAL PVT. LTD
Pharmaceutical company named ‘Moon Pharmaceutical Pvt. Ltd.’ is the manufacturer of this
medicine Calioregamantle, which is a restricted medicine in other jurisdictions as unprescribed
doses could cause heart attack. This pharmaceutical company did not carry out the necessary
tests and hence it was made easily available for the market for anyone.
PRESENT CASE
The ‘Centre for Therapeutic Legal Healing’ is petitioner in the present case. The petitioner
filed the present Writ Petition {W.P.(Civil) No. 22 of 2022} referring to the death of Nandvan
and his family and wanted the High Court to consider directing (i) for a policy guideline for
workplace mental health regulation and (ii) for making the e-commerce platform liable for
misleading general consumers about the availability of the “dangerous” drug.
PAGE | XIV
MEMORIAL for PETITIONERS STATEMENT OF FACTS

STATEMENT OF ISSUES
ISSUE 1
WHETHER THE PRESENT CASE IS MAINTAINABLE IN THE HIGH COURT OF BHANU PRADESH OR
NOT?
ISSUE 2
WHETHER THE HIGH COURT OF BHANU PRADESH CAN DIRECT FOR FORMULATION OF MENTAL
HEALTH REGULATION RELATED LAWS AND POLICY GUIDELINES?
ISSUE 3
WHETHER THE US BASED E-COMMERCE PLATFORM ‘FLIPDEAL’ IS LIABLE FOR FACILITATING

THE SALE OF UNPRESCRIBED MEDICINE?
ISSUE 4
WHETHER THE PHARMACEUTICAL COMPANY ‘MOON PHARMACEUTICAL PVT. LTD.’ IS LIABLE

FOR MANUFACTURING THE DRUG WHICH IS CONTENDED TO BE DANGEROUS FOR HEALTH?
PAGE | XV
MEMORIAL for PETITIONERS ISSUE RAISED

SUMMARY OF ARGUMENTS
I. THE PRESENT WRIT PETITION IS MAINTAINABLE IN THE HIGH COURT

OF BHANU PRADESH.
The present Writ Petition is maintainable in the Hon’ble High Court because the
Republic of Shalvak is under international obligations for construing a domestic law
when there is no inconsistency between them and there exists a void in domestic law.
The Republic of Shalvak has ratified UNCRPD and WHO, thus it becomes obligatory
for it to formulate a domestic on the basis of international guidelines. Further, the
Petitioner has an enforceable legal and fundamental right which is being violated and
to seek justice for the same the Hon’ble Court is the most appropriate forum to hear this
present Writ Petition.
II. THE HIGH COURT OF BHANU PRADESH CAN DIRECT FOR

FORMULATION OF MENTAL HEALTH REGULATION RELATED LAWS
AND POLICY GUIDELINES.
Health does not only refer to Physical health but also social and mental wellbeing. Right
to mental health is a fundamental human right guaranteed under Article 21 of the
Constitution of Shalvak. And the said right is being violated and there is no legislation
prevailing which governs Mental Health regulations or Mental Health regulations at
work place. Further, the High Court can recommend for the formulation of mental
health related and policy guidelines since there exists a lacuna between the needs of the
society and legislations.

FACILITATING THE SALE OF UNPRESCRIBED MEDICINE.
The e-commerce platform ‘Flipdeal’ hosted by US, is liable for facilitating the sale of
unprescribed medicine in the Republic of Shalvak because Flipdeal is not entitled to
‘safe harbour’ protection for intermediaries’ u/s 79 of IT Act as it violates the
Intermediary Guidelines, 2021 and is not a mere conduit but much more than an
intermediary. Moreover, Flipdeal is in contravention of Consumer Protection (E-
PAGE | XVI
MEMORIAL for PETITIONERS SUMMARY OF ARGUMENTS

Commerce) Rules, 2020 and Consumer Protection Act, 2019 as it has not appointed
any nodal officer as well as is engaged in unfair trade practice.

LTD.’ IS LIABLE FOR MANUFACTURING THE DRUG WHICH IS
CONTENDED TO BE DANGEROUS FOR HEALTH.
The company ‘Moon Pharmaceutical Pvt. Ltd.’ is liable for manufacturing the medicine
‘Calioregamantle’ because it violates the most essential part of human life i.e., Right to
Health by not conducting necessary tests before manufacturing the medicine for sale.
The pharmaceutical company while manufacturing the medicine did not comply to Part
XV(A) of the Drug Rules in manufacturing the said medicine. The manufacturing for
sale of the said medicine also contravenes the Consumer Protection Act as it did not
give adequate information about the medicine to consumers so that they could make an
informed choice.
PAGE | XVII
MEMORIAL for PETITIONERS SUMMARY OF ARGUMENTS

ARGUMENTS ADVANCED
I. THE PRESENT CASE IS MAINTAINABLE IN THE HIGH COURT OF BHANU

PRADESH.
1. It is humbly submitted before the Hon’ble High Court of Bhanu Pradesh that the Writ
Petition [hereinafter ‘Petition’] filed by the Centre for Therapeutic Legal Healing [hereinafter
‘the Petitioner’] is maintainable before the High Court of Bhanu Pradesh as firstly, the
Republic of Shalvak [hereinafter ‘State’] is bound to follow international obligations [A];
Secondly, the Petitioner has an enforceable legal and fundamental right [B]; Thirdly, the High
Court of Bhanu Pradesh is the appropriate forum to enforce the legal right of the Petitioner [C].
A. REPUBLIC OF SHALVAK IS BOUND TO FOLLOW INTERNATIONAL

OBLIGATIONS.
2. In order to fulfil the spirit of international obligations which State has entered into,
when they are not in conflict with the existing domestic law, the Hon’ble Supreme Court of
Shalvak [hereinafter ‘Hon’ble SC’] has extensively made use of international law.1 The
Constitution of Shalvak [hereinafter ‘Constitution of Republic of Shalvak’] directs the State
that it shall endeavour to foster respect for international law and treaty obligations in the
dealings of organized peoples with one another.2 Domestic Courts are under an obligation to
give due regard to the international conventions and norms for construing the domestic laws,
more so, when there is no inconsistency between them and there is a void in domestic law.3
3. The State is a member state of WHO and became party to its Constitution on 12 January
1948.4 As per its guidelines the clinical trials and investigations of a new active pharmaceutical
substance should as much as possible reflect the self-medication situation, and subsequent
1
Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30.
2
INDIA CONST. art. 51.
3
Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759; National Legal Services Authority v.
Union of India, (2014) 5 SCC 438; Gramophone Company of India Ltd. v. Birendrabahadur Pandey, (1984) 2
SCC 534; Tractor Export v. Tarapore & Co., (1969) 3 SCC 562; Mirza Ali Akbar Kashani v. United Arab
Republic, (1966) 1 SCR 319.
4
World Health Organization, About us (who.int) (last visited Feb. 14, 2023).
PAGE | 1
MEMORIAL for PETITIONERS ARGUMENTS ADVANCED

collections of post-marketing data on long-term safety and efficacy may be necessary. These
data must be sufficient to meet the criteria for self-medication.5 Careful assessment is necessary
when introducing a medicinal product in a new form without prescription. Moreover, the safety
and benefit/risk of a medicinal product in the new circumstances should be evaluated.6
4. The State ratified CRPD in the year 2007. Article 27 of the UNCRPD recognizes the
promotion of “vocational and professional rehabilitation, job retention and return-to-work
programmes for persons with disabilities”.7 Application of UNCRPD was noted as a necessary
prerequisite to prevent fears of seeking support for mental health in professions where there is
a concern that the victim might lose their job.8 Long working hours are associated with
symptoms of depression.9 The obligations include, a duty to provide concrete programmes to
assist people with disabilities and their caregivers to recognise and combat exploitation,10 and
overarching duties on states to raise awareness of disability issues,11 and to combat
discrimination.12
5. In the present facts after referring to aforementioned international guidelines, neither
any clinical trials have been conducted for the medicine “Calioregamantle” nor any assessment
has been done by the e-commerce company before making it available without prescription on
its platform publicly.13 Also there are no concrete programmes formulated by the Stae which
support mental health of the workers at workplace and resist long working hours. Thus, the
medicine does not meet the criteria of a self-medicated medicine i.e., it is not safe to be
consumed independently and without any prescription. Hence, it is humbly submitted that the
State is under international obligation to adhere to the guidelines of the Covenant to which
State has ratified and regulate the sale of such medicines without prescription which are
5
World Health Organization, Guidelines for the regulatory assessment of medicinal products for use in self-
medication, (Pg. 16-25) (2000), WHO_EDM_QSM_00.1_eng.pdf.
6
Id.
7
Convention on the Rights of Persons with Disabilities, December 13, 2006, 2515 U.N.T.S Pg-19.
8
World Health Organization, Guidelines on mental health at work, (Pg. 64-67) (2022), Guidelines on mental
health at work (who.int).
9
Id.
10
Convention on the Rights of Persons with Disabilities, December 13, 2006, 2515 U.N.T.S Pg-12.
11
Convention on the Rights of Persons with Disabilities, December 13, 2006, 2515 U.N.T.S. Pg-8.
12
Szmukler, George & Daw, Rowena & Callard, Felicity, Mental health law and the UN Convention on the
Rights of Persons with Disabilities, Volume 37, Issue 3 (International journal of law and psychiatry), Pg. 245-
252 (2014).
13
Moot Proposition ¶ Para (9(b)).
PAGE | 2

dangerous to public health and formulate laws on Mental health based on international
guidelines.
B. PETITIONER HAVE AN ENFORCEABLE LEGAL AND FUNDAMENTAL

RIGHT.
6. The existence of a right is the foundation of a petition enshrined in the Constitution.14

The right alleged may be a fundamental right,15 or an ordinary legal right.16 Legal Right means
legally enforceable right or an ascertainable claim.17 Obligation in its popular sense is merely
a synonym for duty.18 When the law recognizes an act as a duty, it commonly enforces the
performance of it, or punishes the disregard of it.19 Every duty must be a duty towards some
person or persons, in whom therefore, a correlative right is vested. Thus, obligation is a
corollary to duty and duty is a corollary to right.20
7. It is a settled proposition of law that the rules of customary international law which are
not contrary to the municipal law shall be followed by the Courts of law.21 The rules laid down
in the aforementioned International Instruments casts an obligation upon the State the
following of which is their duty. This duty is directed towards the Petitioner for the reason that
the failure of this internationally casted duty would wrong the Petitioner and hence the
Petitioner has a title, that is to say, certain facts or events by reason of which the right has
become vested in them.
8. International law can be used to provide a relief contained in a covenant but not in
national law.22 State is a ratified party of these conventions it creates a legitimate expectation
amongst the people with regard to its observance. This rule of legitimate expectation of an
international rule has been recognized in the case of Minister for Immigration and Ethnic
Affairs v. Teoh.23 For the aforementioned reasons, the Petitioner has a legal right which is
14
State of Orissa v. Ram Chandra Dev, AIR 1964 SC 685.
15
Bokaro and Ramgur Ltd. v. State of Bihar, 1962 Supp (3) SCR 831.
16
Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B., 1962 Supp (3) SCR 1.
17 rd
3 , P. Ramnatha Aiyar, Advanced Law Lexicon, (Pg. 2688), LexisNexis (2017).
18
12TH, P J Fitzgerald, Salmond on Jurisprudence, (Pg. 446) Universal Law Publishing Co. (2010).
19
20
21
Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647.
22
Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30.
23
Minister for Immigration and Ethnic Affairs v. Teoh, (1995) 128 ALR 353.
PAGE | 3

enforceable and this legal right flows from the ‘enforceable public duty’ that is casted upon the
State.
9. Also, the Petitioner has Right to Life under Article 21, which is a Fundamental Right
guaranteed by the Constitution,24 which includes within it the Right to Health.25 It is majorly
affected by the sale of dangerous, untested and non-prescribed medicines on e-commerce
platforms publicly without any restrictions and in absence of any grievance redressal officer.
Hence, it is humbly submitted that the Petitioner has an enforceable legal and fundamental
rights and the same are being violated by the State of Bhanu Pradesh.
C. HIGH COURT OF BHANU PRADESH IS THE MOST APPROPRIATE FORUM

TO HEAR THE PRESENT DISPUTE.
10. It is humbly submitted that the High Court of Bhanu Pradesh is the most appropriate
forum to hear the present dispute as Firstly, the Petitioner have the locus standi to file the
Petition [i.]; Secondly, High Court can issue a writ if the cause of action arises within its
territorial jurisdiction [ii.]; Thirdly, there is no alternate remedy available for the Petitioner.
[iii.]
i. The Petitioner has the locus standi to file the Petition.
11. The law with respect to locus standi is considerably advanced.26 Whenever there is a
public wrong caused by an act or omission of the State or a public authority, any member of
the public acting bona fide and having sufficient interest can maintain an action for redressal
of such wrong or public injury.27 In the instant case, not making the e-commerce platform liable
for misleading general consumers about the availability of the “unprescribed drug” would lead
to a public wrong. Further, the Petitioner has sufficient interest to maintain an action of public
injury and pray for the observance of constitutional law. Hence, the NGO has the Locus Standi
to file the instant writ petition.
24
25
Parmanand Katara v. Union of India, (1989) 4 SCC 286.
26
J. Mohapatra & Co. v. State of Orissa, (1984) 4 SCC 103.
27
S.P. Gupta v. Union of India, 1981 Supp SCC 87.
PAGE | 4

ii. High Court can issue a writ if the cause of action arises within its territorial jurisdiction.
12. High Court can issue a writ if the cause of action either wholly or partly arises within
the High Court’s territorial jurisdiction.28 The Cause of action implies a right to sue.29 In the
instant case, the State of Bhanu Pradesh is one of the 27 states of the Republic of Shalvak and
the incident occurred at the Chandrikapur district of Bhanu Pradesh.30 Thus the cause of action
is wholly arising in the State of Bhanu Pradesh and the High Court of Bhanu Pradesh is
competent vide Article 226 (2) to accept the said petition as the writ is well within its territorial
jurisdiction.
iii. There is no alternate remedy available for the Petitioner.
13. It is submitted that access to justice is a human right.31 Authority vested under Article
226 can be exercised by High Courts to reach injustice whenever it is found. 32 In the present
case, the Petitioner cannot approach any Consumer Forum as the e-commerce platform
‘Flipdeal’ does not have any nodal officer or grievance redressal officer/office situated in the
said country.33 The present petition is filed in Public Interest and not on complaint of any single
customer, hence in public interest the matter can only be heard through a Public Interest
Litigation. Also, the petitioner cannot approach elsewhere other than Hon’ble Court to direct
for a policy guideline for workplace mental health regulation. The High Court is empowered
to exercise its extra ordinary jurisdiction under Article 226 to meet unprecedented
extraordinary situations with no parallel34 and it can even subject a policy decision to judicial
review if it is unconstitutional.35 It is humbly submitted that the High Court of Bhanu Pradesh
is the most appropriate Forum for the NGO to approach and seek justice.
14. Therefore, it is humbly submitted before Hon’ble High Court, that the present Writ
Petition is maintainable before the High Court of Bhanu Pradesh.
28
29
6th, M.P. Jain, Indian Constitution Law, (Pg. 429), LexisNexis (2010);
Alchemist Ltd. v. State Bank of Sikkim, (2007) 11 SCC 335.
30
Moot Proposition ¶ Para 5.
31
Tashi Delek Gaming Solutions Ltd. v. State of Karnataka, (2006) 1 SCC 442.
32
Secy., ONGC Ltd. v. V.U. Warrier, (2005) 5 SCC 245.
33
Moot Proposition ¶ Para 9(d).
34
T.K. Rangarajan v. Govt. of T.N., (2003) 6 SCC 581.
35
DDA v. Joint Action Committee, Allottee of SFS Flats, (2008) 2 SCC 672.
PAGE | 5

II. THE HIGH COURT OF BHANU PRADESH CAN DIRECT FOR FORMULATION
OF MENTAL HEALTH REGULATION RELATED LAWS AND POLICY
GUIDELINES.
15. The counsel on behalf of the Petitioner humbly submits before the Hon’ble high Court
of Bhanu Pradesh that firstly, Right to Mental Health is a Human Right which is being violated
in absence of Mental Health related laws and policy guidelines [A] and Secondly, High Court
of Bhanu Pradesh can give recommendations and frame guidelines for formulation of work
place Mental Health regulations. [B]
16. Article 21 of the Constitution mandates that “no person shall be deprived of his Right
to life and personal liberty except in accordance with the procedure established by law. 36 The
scope of Article 21 has been widened from time to time as per the needs of the society so as to
include even Mental health of a person in its ambit.37 The Mental Health Act, 2017, An Act to
provide for mental healthcare and services for persons with mental illness and to protect,
promote and fulfil the rights of such persons during delivery of mental healthcare and services
and for matters connected therewith or incidental thereto.38 But is imperative to note that the
Act is unable to performs its functions to reduce mental health related problems at work place.
17. Moreover, there exists a gap between the needs of the society and legislations. The
hon’ble Supreme Court in the case of Rattan Chand Hira Chand v. Askar Nawaz Jung,39
has held that, “The legislature often fails to keep pace with the changing needs and values nor
is it realistic to expect that it will have provided for all contingencies and eventualities”. It is,
therefore, not only necessary but obligatory on the Courts to step in to fill the lacuna.
18. The immediate cause for filing this petition is an incident of alleged suicide committed
by a family in a district of Chandrikapur.40 That incident is the subject matter of a separate
criminal action and no further mention of it, by us here is necessary. The incidents reveal the
hazards to which working class people may be exposed and safeguard by an alternative
36
India const. Art. 21.
37
kirloskar bros. Ltd. V. Esi corpn., (1996) 2 scc 682.
38
mental healthcare act, 2017, preamble, no. 10, acts of parliament, 2017.
39
rattan chand hira chand v. Askar nawaz jung, (1991) 3 scc 67.
40
PAGE | 6

mechanism in the absence of legislative measures, the need is to find an effective alternative
mechanism to fulfil this felt social need.
A. RIGHT TO MENTAL HEALTH IS A HUMAN RIGHT.
19. Mental health care in the State is plagued by economic social and cultural barriers. An
estimated 7% of the population suffers from mental health conditions and 80% of them do not
undergo treatment.41 Article 21 of the Constitution guarantee Right to Life and Personal
Liberty.42 The expression “life” guaranteed under Article 21 does not connote mere animal
existence or continued drudgery through life, it has much wider meaning which includes right
to livelihood, better standard of life, hygienic conditions in work place and leisure43 and
opportunities to eliminate sickness and physical disability of the workmen.44 It includes the
quality of life as understood in richness and fullness by the ambit of the constitution45 and
every person with a mental illness shall have the right to live and work, as far as possible,
in the community.46
20. “Right to health, medical aid to protect the health and the vigor of a worker while in
service or post retirement is a fundamental right under Article 21 read with Articles 39 (e), 41,
43, 48-A of the Constitution of Shalvak and fundamental human right to make the life of
workmen meaningful and purposeful with dignity of persons”. Security against sickness
and disablement is a fundamental right wider Article 25 of the Universal Declaration of Human
Rights and Article 7 (b) of International Convention of Economic, Social and Cultural Rights
and under Articles 39 (e), 38 and 21 of the Constitution of India”.47 The right to mental integrity
comprises the right to personal honour and image and includes the Right to Privacy.48
21. Mental Health is generally considered as taboo in the State and because of this people
often left untreated. Even on work place culture people are ill-treated and there are high chance
41
Mental Health Policy in India: Challenges and Suggestions, Special Issue 13 NSLR (2019) 39.
42
Supra, 36.
43
Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545.
44
Consumer Education and Research Centre v. Union of India, (2010) 15 SCC 699.
45
State of H.P. v. Umed Ram Sharma, (1986) 2 SCC 68.
46
World Health Organisation, Principles for the protection of person with mental illness and protection of mental
health care, (Principle 6), 1991, Principles for the protection of persons with mental illness and the improvement
of mental health care | OHCHR.
47
LIC v. Consumer Education & Research Centre, (1995) 5 SCC 482.
48
K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1.
PAGE | 7

that they may be subjected to mental harassment. Health is not only mean physical well-being
but also social and mental wellbeing, and right to health therefore, is a fundamental right of the
workmen.49
B. HIGH COURT CAN DIRECT FOR THE FORMULATION OIF GUIDELINES

WHEN THERE IS A LACUNA.
22. It is humbly submitted before the High of Bhanu Pradesh that despite having the Health
Act, 1956,50 the State of Bhanu Pradesh does not have any legal framework for regulating
Mental Health regulations at work place. There have been instances wherein workers are
subjected to mental harassment at workplace51 which in case results in deprivation of right to
life and personal liberty guaranteed under the Constitution.
23. Further, the legislature often fails to keep pace with the changing needs and values nor
is it realistic to expect that it will have provided for all contingencies and eventualities. It is,
therefore, not only necessary but obligatory on the Courts to step in to fill the lacuna.52 The
judge-made law can be validated when there is serious lacuna or vacuum which has to be
filled and left unattended by the legislature, as even “judges cannot timorous souls. They
cannot remain impotent, incapable and sterile in the face of injustice. 53 Moreover, it is
constitutional obligation of the Court to ensure justice is delivered. It is only the tradition
that judges “find” and do not “make” law 54 but through interpretative technique the judges
not only make law and state what the law is but they also assert what it ought to be. 55
24. Further in Vishaka and Ors. v. State of Rajasthan and Ors.56 the Hon’ble Supreme
Court framed guidelines and held that the guidelines and norms would be strictly observed in
all workplaces for the preservation and enforcement of the working women. The Court further
held that these directions would be binding and enforceable in law until suitable legislation is
enacted to occupy the field. Also, in the case of National Legal Services Authority v. Union
49
Supra, 33.
50
51
52
Supra, 35.
53
Lord Denning, “Freedom under the Law”, The Hamlym Lectures (1949).
54
Justice Kurian Joseph, Judicial Legislation, (2016) 2 SCC J-18.
55
Id.
56
Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
PAGE | 8

of India,57 the Court directed the Union and State Governments to grant recognition to third
gender in the eye of the law and later the Transgender Persons (Protection of Rights) Act,
2019,58 is enacted by the legislature. In Prakash Singh v. Union of India,59 seven directives
were issued by the Supreme Court in this regard, namely, setting up of State Security
Commission (SSC) and directed the Central Government, State Government and union
Territories for compliance till the framing of the appropriate legislations.
25. Furthermore, it is submitted that the Hon’ble Apex Court discussed the nuances of
Separation of powers. The Court held that, for understanding the concept of Separation of
powers, two aspects must be borne in mind. Firstly, that the separation of power is an essential
feature of the constitution and secondly, that in modern governance, a strict separation of power
is neither possible nor desirable.60 There can be no straightjacket approach in the sphere of
separation of powers when issue involve democracy, the essential morality that flows from the
Constitution, interest of the citizens in certain spheres like environment, sustenance of social
interest, etc.61 There can be many examples where this Court has issued directions to the
executive and also formulated guidelines for facilitation and in furtherance of fundamental
rights and sometimes for the actualisation and fructification of statuary rights.62
26. Moreover, Article 226 empowers every High Court to issue writs, directions or orders
for the enforcement off (a) fundamental rights; and (b) for any other purpose.63 Thus, the scope
of the powers of the High Court under Article 226 of the constitution is wider than the scope
of the powers of the Supreme Court under Article 32 of the constitution64 also in case of
violation of any right, like Supreme Court the High Court is also bound to grant relief.65
27. In the present case at hand there is no legislation or policy guideline till date to regulate
mental health related issues at work place which in turn violates the fundamental right to life
and personal liberty guaranteed under Article 21 of the Constitution of the State.66 Further, the
57
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
58
Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019.
59
Prakash Singh v. Union of India, (2006) 8 SCC 1.
60
Bhim Singh v. Union of India, (2010) 5 SCC 538.
61
Kalpana Mehta v. Union of India, (2018) 7 SCC 1.
62
Id.
63
64
P.N. Kumar v. Municipal Corpn. of Delhi, (1987) 4 SCC 609.
65
Devilal Modi v. STO, (1965) 1 SCR 686.
66
Supra, 36.
PAGE | 9

jurisdiction of High Court while dealing with the writ petition under Article 226 for the
enforcement of fundamental rights is substantially similar to the jurisdiction of the Supreme
Court in entertaining such petitions under Article 32.67 In lieu of the precedent cited above it
can be assumed that this Hon’ble Court can give directions in form of suggestions to legislature
for the formulation of Mental Health related laws and policy guidelines for work place culture
and also the Hon’ble court may frame guidelines till the time state legislature enact laws and
policy guidelines.

FACILITATING THE SALE OF UNPRESCRIBED MEDICINE.
28. It is submitted that the US based e-commerce platform ‘Flipdeal’ is liable for
facilitating the sale of unprescribed medicine as first, Flipdeal is not entitled to ‘safe harbour’
protection for intermediaries’ u/s 79 of IT Act [A]; and secondly, Flipdeal is in contravention
of Consumer Protection (E-Commerce) Rules, 202068 and Consumer Protection Act, 2019 [B].
A. ‘FLIPDEAL’ IS NOT ENTITLED TO ‘SAFE HARBOUR’ PROTECTION FOR

INTERMEDIARIES U/S 79 OF IT ACT.
29. It is humbly submitted that the e-commerce platforms are included in the definition of
intermediaries under Section 2(1)(w) of the IT Act & also the Hon’ble Supreme Court in many
cases including the case of Visakha Industries69 recognized e-market portals as intermediaries.
The IT Act provides for the safe harbour protection to an intermediary70 while the central
government holds the authority to make rules in accordance with the provisions of the act.71
30. The IT Act also provides for the observance of due-diligence by an intermediary while
discharging its duties.72 Recently in 2021, guidelines73 were issued by the Ministry of
67
7th, Vol. 1, V.G. Ramachandran, Law of Writs, Eastern Book Company (2022).
68
Ministry of Consumer Affairs, Food and Public Distribution, E-Commerce Rules, GSR 462(E) (July 2022).
69
Google India Private Limited v. Visakha Industries and Ors., (2020) 4 SCC 162.
70
Information Technology Act, 2000, § 79(1), No. 21, Acts of Parliament, 2000.
71
Information Technology Act, 2000, § 87, No. 21, Acts of Parliament, 2000.
72
Information Technology Act, 2000, § 79(2)(c), No. 21, Acts of Parliament, 2000.
73
Ministry of Electronics and Information Technology, Intermediary Guidelines and Digital Media Ethics Code
GSR 139(E) (Feb 2021).
PAGE | 10

Electronics and Information Technology in the supersession of the Intermediary Guidelines,
2011.74 The Information Technology (Guidelines for Intermediaries and Digital Media Ethics
Code) Rules, 2021 is a delegated legislation under the Information Technology Act, 2000
which purports to make guidelines in order to achieve the provisions of the Act, 2000.75
31. In the present case, the e-commerce platform Flipdeal violates the present the
Intermediary Guidelines76 as the review of the medicine ‘Calioregamantle’ mentioned on its
platform violates the present Drugs and Cosmetics Act 77 as well as the Drug Rules.78 In
respective cases, the High Court of Judicature at Madras79 & the High Court of Delhi80 ordered
the on-line traders not to proceed with their on-line business in drugs and cosmetics.
32. Moreover, Flipdeal does not have any Nodal Officer or Grievance Redressal Officer81
and thus, it also violates Rule 3(2) of the guidelines. The guidelines also provide that the
provisions of Section 79(1) of the IT Act would not apply to an intermediary who does not
comply with the rules mentioned therein.82
33. In Luxottica Group SpA,83 the Delhi High Court held another e-commerce platform
kaunsa.com as not ‘pure intermediary’. The Court noticed the fact that the e-commerce
platform provided authenticity guarantees and collected payments on behalf of the sellers. The
e-commerce platform Flipdeal also collects payment on behalf of sellers.84
34. Moreover, in the case of L’Oréal v eBay,85 the Court of Justice of the European Union
held that an intermediary can be held liable if it played an active role, such as assistance to the
customers. In the present case, Flipdeal is collecting payment on the behalf of sellers which
does not make it a mere conduit but much more than an intermediary.86 Hence, it is submitted
74
Ministry of Communication and Information Technology, Notice No. 314(E), (April 2011).
75
IP Massey, Administrative Law, Eastern Book Company, (Pg. 5 Note 10) (2020).
76
The Information Technology, Intermediary Guidelines and Digital Media Ethics Code Rules, Rule 3(1)(b)(v),
(2021).
77
Drugs and Cosmetics Act, (1940) Section 16(1)(a).
78
Drug Rules, (1945). Rule 124.
79
Tamil Nadu Chemists and Druggists Association v. Union of India, 2018 SCC OnLine Mad 3515.
80
Dr. Zaheer Ahmed v. The Union of India & Ors., W.P.(C) No. 11711/2018.
81
Id.
82
The Information Technology, Intermediary Guidelines and Digital Media Ethics Code Rules, Rule 7 (2021).
83
Luxottica Group S.P.A. v. Mify Solutions Pvt. Ltd., 2018 SCC OnLine Del 12307.
84
Moot Proposition Clarification, Point 74.
85
L’Oréal SA and others v. eBay International AG, (2012) Bus LR 1369.
86
Christian Louboutin Sas v. Nakul Bajaj, 2018 SCC OnLine Del 12215.
PAGE | 11

that the e-commerce platform ‘Flipdeal’ is not entitled to safe harbour protection under Section
79 of the IT Act.
B. FLIPDEAL IS IN CONTRAVENTION OF CONSUMER PROTECTION (E-

COMMERCE) RULES, 2020 AND CONSUMER PROTECTION ACT, 2019
35. The E-Commerce Rules state that the rules would equally apply to e-commerce
platforms which are not established in the State, but systematically offers goods to consumers
in the State,87 while the term ‘Consumer’ has been defined in the Consumer Protection Act,
2019.88 The word ‘Consumer’ is a comprehensive expression. It extends from a person who
buys any commodity to consume either as eatable or otherwise from a shop, business house,
corporation, store, fair price shop to use of private or public services.89
36. According to the Consumer Protection Act, the definition of consumer covers every
such person who buy goods or avail services for a consideration. This implies that the act will
apply to every such entity from which a consumer buys goods, whether it be situated in the
State or any other country. Also, the explanation provided for the definition of consumer in the
Act expressly includes goods bought through online transactions. Thus, any transaction
between Flipdeal and a consumer of the State would also be governed by the provisions of the
Consumer Protection Act, 2019.
37. The act expressly includes any online market place into the ambit of electronic service
provider.90 The act requires every electronic service provider to designate a nodal officer to
accept and process such notices as required by the act.91 Moreover, it is the duty of an
intermediary to appoint a nodal officer or an alternate senior designated functionary who is
resident of the State, to ensure compliance with the provisions of the act or the rules made
thereunder.92 Flipdeal has not designated any such nodal officer as required by the act or the
rules.93
87
Ministry of Consumer Affairs, Food and Public Distribution, E-Commerce Rules, Rule 2(2) (2022).
88
Consumer Protection Act, 2019, § 2(7), No. 35, Acts of Parliament, 2019 (India).
89
LDA v. M.K. Gupta, (1994) 1 SCC 243.
90
91
92
93
Moot Proposition. ¶ Para 9.
PAGE | 12

38. Permitting the sale or supply of goods knowing or having reason to believe that the
goods do not comply with the standards prescribed by the competent authority is regarded as
an unfair Trade Practice.94 On 26th July 2022, the District Consumer Disputes Redressal
Commission at Nalgonda, Telangana ordered Flipkart and a seller to pay compensation to a
consumer for deficiency in service and unfair trade practice.95 The said medicine was permitted
for sale on its platform disregard of the fact that the manufacturer of the medicine did not carry
out the necessary tests.96
39. It is also the liability of every e-commerce platform to ensure that descriptions, images,
and other content pertaining to goods or services on their platform is accurate and corresponds
directly with the appearance, nature, quality, purpose and other general features of such good
or service, through an undertaking by the sellers.97 E-Commerce platforms should keep track
of the sellers and exercise due diligence before allowing the sellers on their platform.98 In the
present case, Flipdeal did not observe the necessary due diligence.
40. The immunity under Section 79 of the IT Act is limited to exemption to intermediary
from any liability under IT Act, 2000 but not extend to criminal liability under general law.99
Recently, an application was made by the CAIT to Minister of Health and Family Welfare
requesting for prohibition of marketplace e-pharmacies in the State.100 Hence, it is submitted
that the e-commerce platform Flipdeal is in contravention of E-Commerce Rules and the
Consumer Protection Act.

LTD.’ IS LIABLE FOR MANUFACTURING THE DRUG WHICH IS
CONTENDED TO BE DANGEROUS FOR HEALTH.
41. It is submitted that the pharmaceutical company ‘Moon Pharmaceutical Pvt. Ltd.’ is
liable for manufacturing the medicine ‘Calioregamantle’ as first, it violates Right to Health
94
Consumer Protection Act, 2019, § 47(iv), No. 35, Acts of Parliament, 2019 (India).
95
Shaik Umar Farooq v. Flipkart & Ors., (2022), SCC OnLine NCDRC 519.
96
97
98
Oberdorf v. Amazon.com Inc. - 930 F.3d 136 (3d Cir. 2019).
99
Google India Private Limited vs. Visakha Industries and Ors., (2020) 4 SCC 162.
100
Taxguru, Stop discriminate selling of medicines by e-commerce companies: CAIT, Taxguru (Feb 2022,
01:59AM), Stop discriminate selling of medicines by e-commerce companies: CAIT (taxguru.in).
PAGE | 13

enshrined under Article 21 [A]; secondly, it is against the provisions of Drugs and Cosmetics
Act [B]; and lastly, it contravenes Consumer Protection Act, 2019 [C].
A. THE MANUFACTURING OF MEDICINE ‘CALIOREGAMANTLE’ VIOLATES

RIGHT TO HEALTH ENSHRINED UNDER ARTICLE 21.
42. It is humbly submitted that health of a human being is most important ingredient of
human life. In the case of Vincent v/s UOI,101 it was emphasized that a healthy body is the very
foundation of all human activities. The Cambridge Dictionary* defines health as the ‘condition
of being well or free from disease’.102 There is no fixed legal definition of health. WHO defines
health as ‘a state of complete physical, mental and social well-being and not merely the absence
of disease or infirmity’.103
43. The Right to Health has been internationally recognised. Universal Declaration on
Human Rights in Article 25104 states that ‘Everyone has the right to a standard of living
adequate for the health and well-being of himself and of his family, including food, clothing,
housing and medical care’. Article 12(1)105 of International Covenant on Economic and
Cultural Rights, ‘States Parties recognize the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health’.
44. Moreover, Article 21 has come to be regarded as the heart of Fundamental Rights.106
The Hon’ble Supreme Court recently in the case of Kaushal Kishor107 held that the
fundamental right under Article 19/21 can be enforced even against persons other than the State
or its instrumentalities.
45. The articles or goods which are obnoxious and injurious to health, safety and welfare
of the people of general public are not entitled for trade.108 It is the duty of the State to ensure
the welfare of citizens as Republic of Shalvak is a ‘Socialist’109 State. The State also recognises
101
Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165.
102
Cambridge Dictionary, Cambridge University Press, Health,
https://dictionary.cambridge.org/dictionary/english/health.
103
Constitution of World Health Organization, Basic Documents, Forty-fifth edition, Supplement, October
(2006), https://apps.who.int/gb/bd/PDF/bd47/EN/constitution-en.pdf.
104
Universal Declaration of Human Rights (1948). Article 25.
105
International Covenant on Economic and Cultural Rights (1966). Article 12(1).
106
Unni Krishnan, J.P. v. State of A.P., (1993) 4 SCC 111.
107
Kaushal Kishor v. State of U.P., 2023 SCC OnLine SC 6.
108
Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 SCC 304.
109
Indian Constitution (1950). Preamble, Amended by The Constitution(Forty Second Amendment) Act.
PAGE | 14

Right to holistic health as a part of Right to Life.110 Hence, it is submitted that the
manufacturing for sale of medicine ‘Calioregamantle’ by the Moon Pharmaceutical without
conducting necessary tests111 violates Right to Health enshrined under Article 21.
B. THE MANUFACTURING OF MEDICINE ‘CALIOREGAMANTLE' IS AGAINST

THE PROVISIONS OF DRUGS AND COSMETICS ACT
46. The main object of the Drugs and Cosmetics Act, 1940 and the Rules made thereunder
is to regulate manufacture of drugs to maintain standard or quality of drugs for sale and
distribution as a drug.112 The object of the act would certainly be defeated if the necessary
contaminants of medical or surgical treatment were allowed to be diluted, the very same evil
which the act intends to eradicate would continue to subsist.113
47. The Drugs and Cosmetics Rules, 1945, being the rules made under the Drugs and
Cosmetics Act, have full force and effect as if they were part and parcel of the Act itself.114 To
be of standard quality, a drug has to comply with the standard set out in the second schedule of
the act.115 The standard of drugs must be such as envisaged under Rule 124 of the Drug
Rules.116
48. Manufacturer of drugs shall comply to the provisions referred to in Schedule M.117
Manufacturer of drugs specified in Schedule X has to additionally comply with the
requirements of Good Laboratory Practices as laid down in Schedule L-I.118 The manufacturer
of drug also has to Maintain Records as laid down in Schedule U.119
49. Schedule M provides for good manufacturing practices and requirements of premises,
plant and equipment for pharmaceutical products. The pharmaceutical products should not be
released for sale until their quality has been judged to be satisfactory and it shall also be ensured
that all quality control arrangements are effectively and reliably carried out.120
110
Health Act, 1956, Republic of Shalvak.
111
112
Medley Pharmaceuticals Ltd. v. CCE, (2011) 2 SCC 601.
113
Chimanlal Jagjivan Das Sheth v. State of Maharashtra, 1963 Supp (1) SCR 344.
114
Prakash Chandra Tiwari v. State of M.P., 1975 SCC OnLine MP 48.
115
Drugs and Cosmetics Act(1940). Section 16(1)(a).
116
Drug Rules (1945).Rule 124.
117
Drug Rules (1945). Rule 71(2).
118
Drug Rules (1945). Rule 74(o).
119
Drug Rules (1945). Rule 79.
120
Drug Rules (1945). Rule 16, Part I, Schedule M.
PAGE | 15

50. Moreover, no batch of product shall be released for sale or supply until it has been
certified by the authorised person to be in accordance with the requirements of the standards
laid down.121 The quality of the medicine ‘Calioregamantle’ cannot be said to be standard as
Moon Pharmaceutical did not carry out the necessary tests122 i.e., did not comply to Part XV(A)
of the Drug Rules.123
51. Majorly, all the anti-depressants in the State fall within Schedule H or H1.124 Any anti-
depressant manufactured in the State must bear a caution or warning on the inner most
container specifying the drug to be covered under Schedules G, H, H1 or X as the drugs therein,
except Schedule G are prescription drugs.125 Hence, it is submitted that the manufacturing for
sale of medicine ‘Calioregamantle’ without prescription126 by Moon Pharmaceutical is against
the provisions of Drugs and Cosmetics Act.
C. THE MANUFACTURING OF MEDICINE ‘CALIOREGAMANTLE'

CONTRAVENES THE CONSUMER PROTECTION ACT, 2019
52. Every consumer has a right to be informed about the quality, purity and standard of
goods or products.127 This gives information about the product to consumers at prepurchase
stage so that they can make an informed decision.128 The review of the medicine
‘Calioregamantle’ which was written by Moon Pharmaceutical129 did not provide that the
unprescribed doses of the medicine could cause heart attack.130
53. Permitting the sale or supply of goods knowing that the goods do not comply with the
standards prescribed is regarded as an unfair trade practice under the Consumer Protection
121
Drug Rules (1945). Rule 16.6, Part I, Schedule M.
122
123
Drug Rules (1945). Part XV(A).
124
Drug Rules (1945). Rule 96(7)(xi).
125
Drug Rules (1945). Rule 97.
126
127
Consumer Protection Act (2019). Section 2(9)(ii).
128
Ministry of Consumer Affairs, Food and Public Distribution, E-Commerce Rules, Rule 6(5)(d) (2022).
129
Moot Proposition (Clarification). ¶ Point 5.
130
PAGE | 16

Act.131 The review of the medicine that it will not have much side effects except slight
giddiness132 was written by Moon Pharmaceutical without conducting necessary tests.133
54. Moreover, a product manufacturer is liable if the product fails to contain adequate
instructions of correct usage to prevent any harm or any warning regarding improper or
incorrect usage.134 Moon Pharmaceutical failed to inform the consumers about the side effects
of the said medicine as a result of which ‘harm’135 is caused to the general public. Hence, it is
submitted that the manufacturing for sale of medicine ‘Calioregamantle’ by Moon
Pharmaceutical contravenes the Consumer Protection Act, 2019.
131
Consumer Protection Act (2019). Section 2(47)(iv).
132
Moot Proposition. ¶ Para 9
133
134
Consumer Protection Act (2019). Section 84(1)(e).
135
Consumer Protection Act (2019). Section 2(22)(ii).
PAGE | 17

PRAYER
Wherefore, in the light of the issues raised, arguments advanced and authorities cited, the
counsel on behalf of the petitioner humbly pray before this Hon’ble High Court that it may be
pleased to adjudicate and declare that :
1. The present petition is maintainable before the Hon’ble High Court of Bhanu Pradesh.
2. The High Court of Bhanu Pradesh may direct for formulation of Mental Health Regulation
related laws and policy guidelines.
3. The E-Commerce platform ‘Flipdeal’ is liable for facilitating the sale of medicine without
observing necessary due diligence.
4. The ‘Moon Pharmaceutical Pvt. Ltd.’ is liable for manufacturing and selling the medicine
without conducting necessary tests.
AND/ OR
to pass any order which the Court may deem fit in the light of Justice, Equity and Good
Conscience.
Sd/-
All of which is most humbly prayed (Counsel on behalf of the Petitioner)
Page | XVIII
MEMORIAL for PETITIONERS PRAYER

Under Article 226 of The Constitution of Republic of Shalvak

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Under Article 226 of The Constitution of Republic of Shalvak

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TC - 14P

The NHRC – RGNUL HUMAN RIGHTS NATIONAL MOOT COURT

IN THE HIGH COURT OF BHANU PRADESH

WRIT PETITION(Civil) No. 22/2022

UNDER ARTICLE 226 OF THE CONSTITUTION OF

IN THE MATTER BETWEEN

CENTRE FOR THERAPEUTIC LEGAL HEALING

STATE OF BHANU PRADESH AND OTHERS

MEMORIAL ON BEHALF OF THE PETITIONER

LIST OF ABBREVIATIONS ................................................................................................ III

INDEX OF AUTHORITIES ................................................................................................... V

STATEMENT OF JURISDICTION .................................................................................... XII

STATEMENT OF FACTS ................................................................................................. XIII

STATEMENT OF ISSUES .................................................................................................. XV

SUMMARY OF ARGUMENTS .......................................................................................... XVI

I. THE PRESENT CASE IS MAINTAINABLE IN THE HIGH COURT OF BHANU

A. REPUBLIC OF SHALVAK IS BOUND TO FOLLOW INTERNATIONAL

B. PETITIONER HAVE AN ENFORCEABLE LEGAL AND FUNDAMENTAL

C. HIGH COURT OF BHANU PRADESH IS THE MOST APPROPRIATE

iii. There is no alternate remedy available for the Petitioner. ..................................................................... 5

II. THE HIGH COURT OF BHANU PRADESH CAN DIRECT FOR

A. RIGHT TO MENTAL HEALTH IS A HUMAN RIGHT. ................................... 7

B. HIGH COURT CAN DIRECT FOR THE FORMULATION OIF

A. ‘FLIPDEAL’ IS NOT ENTITLED TO ‘SAFE HARBOUR’ PROTECTION

B. FLIPDEAL IS IN CONTRAVENTION OF CONSUMER PROTECTION (E-

IV. THE PHARMACEUTICAL COMPANY ‘MOON PHARMACEUTICAL PVT.

A. THE MANUFACTURING OF MEDICINE ‘CALIOREGAMANTLE’

B. THE MANUFACTURING OF MEDICINE ‘CALIOREGAMANTLE' IS

C. THE MANUFACTURING OF MEDICINE ‘CALIOREGAMANTLE'

PRAYER ............................................................................................................................ XVIII

A.P. Andhra Pradesh

AIR All India Reporter

ALR Analytical Ledger Review

M.P. Madhya Pradesh

SCC Supreme Court Cases

U.P. Uttar Pradesh

UOI Union of India

W.P. Writ Petition

WHO World Health Organisation

INDIAN CASES PAGE NO.

Alchemist Ltd. v. State Bank of Sikkim, (2007) 11 SCC 335. 5

Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759 1

Bhim Singh v. Union of India, (2010) 5 SCC 538 9

Chimanlal Jagjivan Das Sheth v. State of Maharashtra, 1963 Supp (1)

Consumer Education and Research Centre v. Union of India, (2010) 15

DDA v. Joint Action Committee, Allottee of SFS Flats, (2008) 2 SCC

Devilal Modi v. STO, (1965) 1 SCR 686 9

Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd.,

Google India Private Limited v. Visakha Industries and Ors., (2020) 4

Gramophone Company of India Ltd. v. Birendrabahadur Pandey, (1984)

J. Mohapatra & Co. v. State of Orissa, (1984) 4 SCC 103 4

Kalpana Mehta v. Union of India, (2018) 7 SCC 1 9

Kaushal Kishor v. State of U.P., 2023 SCC OnLine SC 6 14

Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 SCC 304 15

Kirloskar Bros. Ltd. v. ESI Corpn., (1996) 2 SCC 682 6

LDA v. M.K. Gupta, (1994) 1 SCC 243 12

LIC v. Consumer Education & Research Centre, (1995) 5 SCC 482 7

Medley Pharmaceuticals Ltd. v. CCE, (2011) 2 SCC 601 15

National Legal Services Authority v. Union of India, (2014) 5 SCC 438 1, 9

Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545 7

P.N. Kumar v. Municipal Corpn. of Delhi, (1987) 4 SCC 609 9

Parmanand Katara v. Union of India, (1989) 4 SCC 286 4

Prakash Chandra Tiwari v. State of M.P., 1975 SCC OnLine MP 48 15