The primary issues are
Is this a contract governed by Article 299 of the Constitution of India?
Is it a legally valid contract
Will jurisdiction of American courts become a problem?
Will there data protection and privacy issues arise here?
Response :
It is true that Article 299 governs all contracts entered into by the Executive- be it at the Centre or at the State Government level.
However, there is no concluded contract here. There has been an offer to give data and there is an assent to that offer by the American counterpart.where the data will be activated.
This transaction is a typical operational model in this Industrial 4.0 - which is the Fourth Industrial Revolution. The First revolution is the advent of the Steam Engine and Railways. That changed everything about what should be industres.
The Second Revolution 2.0 is the advent of machineries, assembly lines and mass production. How this revolution enabled larger economies of scale and made it feasible for mass production. The Third Revolution in Industry namely 3.0 which is where India companies are at and where we have the mainframe computers and the mini computer and how these interact and result in data getting digitized.. .
As things stand today, the world has moved ahead in Industry 4.0 which is about integrating the physical world with the cyber world. Networked data in the physical form is integrated with data in the digital form through the Internet. It seamless and known as the Internet of Things. Ir creates intelligent network with value chains and finds products that can be part of this value chain.
In this case, Sprinkr typically reeled out the standard printed form of contracts that they send out to any party.
Such as the Master Service Agreement 1.3. This means that this is a newer version of this agreement and is amended twice or thrice.
As far as IT Department of GoK is concerned they have prior experience in this field.They are not naive about this. They know very well what kind of arrangement they are entering into.
What they entered into was not contract... one may term it as a Purchase Order or a seemingly unsigned Master Service Agreement..
This is not a binding contract to attract Article 299 of the Constitution of India...because, When there is no consideration it does not fulfill section 25 of the Contract Act...
Therefore this arrangement is only a premise to a future contract.. and does not attract Article 299 or the due process under Article 299.
The information given by the government is not commercial and has no specific advantage to any third party. Kerala is ahead in teh COVID 19 game.. its ahead of the rest of India... it had the first case of COVID 19 and has experience that resulted in reducing the number of cases, breaking the chain and flattening the statistical curve of pateints affected by COVID 19. The information given is, in effect, the prognosis of the COVID 19 discease and how the discease manifested itself..That information is time sensitive because it is already in public domain through innumerable Webinars... It's about how ICUs' work and about how to intubate patients.. There is no signed document that can be called a concluded contract to attract Arti 299.
All this leads to a situation where it has been wrongly argued argued that the Information Technology Act or the Indian laws or courts cannot act if there is any privacy violation of a citizen...
. Any contract made in India cannot exclude Indian contract law.. The courts in NewYork cannot ignore Indian law and the Courts in India cannot be ousted of jurisdiction.. Time and again Courts have held that just you cannot confer jurisdiction on a court that never had or oust jurisdiction of a court that had it in the first place.. Example of how the Union Carbide case was transferred to India..(
The US court used the ideology of Forum Convenience. Part of cause action arises in India and Indian courts have jurisdiction.
General perception one finds in this case is that Indian law for data protection and data privacy is not applicable. This perception is wrong..Section 43A amd Secion 72 was inserted primarily into the Information Technology Act to primarily protect information of citizens..
As far as data protection is concerned we have a milestone case law in Copyright law from the Kerala High Court. OP (c) 9071 of 2003 (B.N Firoz vs. State of Kerala) in relation to the Friends Software of the Government of Kerala.. Filed by Firoz in the High Court claiming that he was the proprietor of this software called Friends
Our contention in this case was that the software that was developed by Mr. Firos was that it was a "Government Work" under Section 17(d) of the Copyright Act therefore the Government was owner of the data and the software..Also further... under secton 70 of the IT Act , government of Kerala has the right to declare the computer systems and networks using this id a " Protected System". That was what was challenged by Firoz..Court held that there is no dispute between the Copyright Act and the IT Act.. The IT Act prevails.. The government has all the right to declare the system as a "Protected System" The matter went upto Supreme Court and the apex court upheld the judgment of the Kerala High Court. 2018 (9) SCC 220..
Supreme Court held that critical information infrastructure information such as public health , national security... can be protected by government through issuance of this notification..
Public health is also included within the definition of Critical Information Infrastructure of the IT Act.. This makes it clear that not only information provided can be extracted back and also the product can be claimed as Government Work..
Sprinklre is not aware of this important law.They have gone ahead without complying with the basis due diligence.. Indian law provides for Protected System and Data privacy is also provided.
GoK has taken all safeguards to exercise options to take back all the information and have exclusive control over it.. within the framework of Indian law...
Safe harbor clauses on jurisdiction is inoperable in India .. Indian courts can interfere and bring these safely harboured companies to justice..
Conclusion:
Data Privacy is being compromised not in this case but there are serious cases where data is being compromised...Media and publicity seekers are barking up the wrong tree. Media companies are engaging overseas servers to generate Ad revenues and in the process compromising valuable citizen data..How come no one is discussing this ?
Satish Murthi, Adv
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