Petitioner Memorial

JUSTIFIED 2018, 3rd NATIONAL MOOT COURT COMPETITION
TEAM CODE :TC-01P

JU-07
BEFORE THE HON’BLE SUPREME COURT OF INDICA
IN THE MATTER OF
GAZ FOUNDATION & ORS.

(PETITIONERS)
v.
UNION OF INDICA
(RESPONDENT)
WRIT PETITION NO. ****/2018
Upon Submission to the Hon’ble Supreme Court of Indica
MEMORANDUM ON BEHALF OF THE PETITIONERS DRAWN

AND FILED BY THE COUNSELS FOR THE PETITIONERS
1
MEMORIAL ON BEHALF OF PETITIONERS
TABLE OF CONTENTS
List of Abbreviations ..............................................................................................................iv
Index of Authorities .................................................................................................................v
Statement of Jurisdiction .......................................................................................................ix
Statement of Facts ....................................................................................................................x
Statement of Issues ............................................................................................................... xii
Summary of Arguments ...................................................................................................... xiii
Arguments Advanced ..............................................................................................................1
[1]. That the Special Leave Petition is mainatainable............................................................1
[1.1]. The matter involves Question of Law of General Public Importance......................1
[1.2] The matter involves Substantial Question of Law and Gross Injustice has been
done ....................................................................................................................................2
[1.2.1] Substantial Question of Law is involved............................................................2
[1.2.2] Gross Injustice has been done ............................................................................3
[1.2.3] Finding of Facts may give rise to Substantial Question of Law. .......................3
[2]. That the Pehchaan Policy and the Pehchaan Act, 2014 brought by the
Government are not Constitutional ...................................................................................4
[2.1] The Act was brought by the Legislature of the State ................................................4
[2.2] The Pehchaan Policy and the Pehchaan Act, 2014 brought by the Government
violate the Fundamental Rights of the People ...................................................................4
[3]. That the Pehchaan Project of the Government is violative of the Fundamental
Rights of the People provided by the Constitution ...........................................................5
[3.1] Violation of the Fundamental Right to Privacy of the People ..................................5
[3.2] Mandia’s Commitment under International Law ......................................................6
[3.1.1] Pehchaan Project of the Government is not in accordance with the ‘Procedure
2
Established by Law’ as per Art. 21 of the Constitution .................................................8
[3.1.2] The Pehchaan Project of the Government is in violation of Art. 19 of the

Constitution ....................................................................................................................9
[3.1.2.1] Restriction on the Right to Remain Silent by the Government does not fall
within the ambit of Security of State .......................................................................10
[3.1.3] The Pehchaan Project of the Government is in violation of Art. 14 of the

Constitution ..................................................................................................................10
[3.1.3.1] Test of Reasonable classification ..............................................................11
[3.1.3.1.1] Information sought from the people of Mandia for the of making
Pehchaan Cards is unreasonable ..........................................................................12
[3.1.3.2] Test of Arbitrariness ..................................................................................12
[3.1.3.2.1] Disclosure of Religion ........................................................................13
[3.1.4] Pehchaan Project of the government of Mandia is not just, fair and reasonable
13
[3.1.4.1] Pehchaan Project of the government violates the dignity of the People of
Mandia .....................................................................................................................14
[3.1.4.1.1] Deprivation of choice .........................................................................15
[3.1.4.1.2] Constant State Surveillance ................................................................15
[3.1.4.2] The restrictions imposed by the Government on the Fundamental Right of

Privacy of the People is not Proportional to objectives of the Act. .........................16
[3.1.4.2.1] Narrow Tailoring Test ........................................................................17
[3.3] Conflict between Fundamental Rights and Directive Principles of State Policy ....17
[4]. That the Government has not taken adequate measures to Secure the Data
collected for the purpose of making Pehchaan Cards ....................................................18
[4.1] Lack of Security measures to prevent Leakage of Data ..........................................19
[4.1.1] Prevalence of Identity Theft .............................................................................19
[4.1.2] De-duplication of Identities ..............................................................................19
3
[4.2] There are no adequate safeguards against misuse of Pehchaan Database...............20
[4.3] Delegation of Authority to Private Entities and Private Vendors ...........................20
Prayer for Relief .....................................................................................................................21
4
LIST OF ABBREVIATIONS
Abbreviations Full Form

& And
v. Verses
AIDS Acquired Immunodeficiency Syndrome
A.I.R All India Report
Cr.LJ Criminal Law Journal
ed. Edition
ECHR European Commission Human Rights
ECOSOC Economic and Social Council
HC High Court
HCHR High Commission Human Rights
HIV Human Immunodeficiency Syndrome
ICCPR International Convents Council of Political
Rights
IPC Indian Penal Code
ISBN International Standard Book Number
LGBT Lesbian Gay Bisexual Transgender
LGBTQI Lesbian Gay Bisexual Transgender Queer
Intersex
MANU Manupatra
MSM Man having sex with Man
SC Supreme Court
SCR Supreme Court Reporter
Sec. Section
UK United Kingdom
UN United Nation
UNHRC United Nation Human Right Commission
UNGA United Nation General Assembly
US United States
Vol. Volume
5
INDEX OF AUTHORITIES
CASE LAWS CITED
Name of Case Citation

Bowers v. Hardwick 478 U.S. 186 (1896)
Dudgeon v. United Kingdom Appl.No. 7525/76
Fitzpatrick v. Sterling Housing (1999) UKHL 42; (1999) 4 All ER

Association ltd. 705; (1999) 3 WLR 1113
Francis Coralie Mullin v. Administrator, 1981 AIR 746, 1981 SCR (2) 516
Union Territory of Delhi and others
Goodridge v. Department of Public Health 798 N.E.2d 941
Government v. Bapoji Bhatt (1884) (7) Mysore LR 280
Grace Jeyaramani v. EP Peter AIR 1982 Karnataka 46
Karner v. Australia No. 40016/98

Khanu v. Emperor 1925 Sind. 28
Krishna v. State of Madras 1975 AIR 297, 1956 SCR 399
Law v. Canada (1991) 1 S.C.R 497

Lewis v. Harris 188 N.J. 415 (2006)
Loving v. Virginal 388 U.S 1 (1967)
Menka Gandhi v. Union of 1978 AIR 597, 1978 SCR (2) 621
India
Modinos v. Cyprus 7/1992/325/426
Naz Foundation v. 2010 CrLJ 94 (Del.)
Government of NCT of Delhi
Noris v. Republic of Ireland (1988) no. 1051/83
R. Rajgopal V. State of Tamil (1995) AIR 264, 1994 SCC (6)

Nadu 632
Salgueiro Da Silva Mouta v. 33290/97
Portugal
Suresh Kumar Kaushan v. Naz MANU/SC/1278/2013
Foundation and ors.
Sutherland v. UK Application No. 25186/94
6
The National Coalition for Gay and (1998) ZACC 15

Lesbian Equality v.
The Minister of Justice
Noshirwan V. Emperor AIR 1935 Sind. 78
Queen Emprise v. Khairati 1884 ILR 6 ALL 204
Toonen v. Australia Communication No. 488/1992,

U.N. Doc. CCPR/c/50/D/488/1992
FOREIGN CASES
1. Griswold v. Connecticut, [381 US 479 (1965)]…………………………………………19
2. Munn v. Illinois, [94 US 113 (1877)]……………………………………………..……..25
3. Roe v. Wade, [410 US 113 (1973)]………………………………………………..…….19
INDIAN CASES
1. Anuj Garg v. Hotel Assn. of India, AIR (2008) 3 SCC 1 (SCC p.15 para 34-35)…….....24
2. Aruna Ramachandra Shanbaug v. Union of India & ors., AIR (2011) 4 SCC 454….…..25
3. Arunchalam v. Sethuratnam, AIR 1979 SC 1284.………………………………….……14
4. CCE v. Venus castings (p) ltd., AIR 2000 SC 1568 : (2000) 4 SCC 206.…………….…15
5. District Registrar and Collector v. Canara Bank AIR 2005 SC 186……………….…….19
6. Durga Shankar v. Raghu Raj; AIR 1954 SC 520 : (1955) 1 SCR 267…………………..14
7. Gobind Singh v. State of M.P. AIR 1975 SC 1378……………………………………...18
8. Haripada dey v. State of West Bengal, AIR 1956.………………………………………14
9. Jamshed Hormusji Wadia v. Board of trustees, port of Mumbai, (2004) 3 SCC 214.…..14
10. Justice K.S.Puttaswamy v. Union of India AIR 2015 SC 3081…………………...……..17
11. K.L.D. Nagasree v. Government of India AIR 2007 AP 102:……………………….…..19
12. Kerala State Electricity Board v. Kurien E. Kalathil, (2000) 6SCC 293 : AIR 2000 SC
2573….……………………………………………………………………………………….15
7
13. Keshvanand Bharti v. State of Kerala (1973) 4 SCC 225…………………………….…26

14. Kharak Singh v. State of U.P, AIR 1963 SC 1295………………………………………26
15. Matru v. State of U.P, AIR 1971 SC 1050………………………………………………14
16. Mohammad Khalil Chisti v. State of Rajashtan, 2013 CrLJ 637 (649) (SC) : (2012) 12
SCALE 254; …………………………………………………………………………………14
17. Mr CJ Karira v. Planning Commission, Government of New Delhi…………………….26
18. Mr. X v. Hospital Z, AIR (1995) SC 95…………………………………………………18
19. N.Suriyakala v. A. Mohandoss, (2007) 9 SCC 196 : (2007) 3JT 266…………….……. 14
20. Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666………………….....14
21. National Legal Services Authority v. Union of India………………………………..,,…24
22. Parmanand Katara v. Union Of India & Ors, 1989 AIR 2039, 1989 SCR (3) 997.....…..21
23. People’s Union for Civil Liberties v. Union of India AIR 1997 SC 568…………...…...18
24. R. M. Malkani v. State of Maharashtra AIR 1973 SC 157………………………....……19
25. R. Rajagopal v. State of T.N. AIR 1995 SC 264…………………………………....…...18
26. Ram Pirari v. Bhagwant, AIR 1990 SC 1742: (1990) 3 SCC 364…………………….…15
27. Sambhu Das v. State of Assam, (2010) 10 SCC 374: (2010) 3 SCC (Cri) 1301…….…..14
28. Sanwat Singh v. State of Rajashtan, AIR 1961 SC 715: (1961) 3 SCR 120……....……14
29. Selvi v. State of Karnataka, AIR 2010 SC 1974…………………………………..….…19
30. Sharda v. Dharmpal, AIR (2003) SC 3450………………………………………...…….26
31. Shreya Singhal v. Union of India, (2015) 5 SCC 1……………………………………...19
32. State of Sikkim v. Dorjee, AIR 1991 SC 1933 ; (1991) 4 SCC 243…………….……….15
33. State of U.P v. Indian Hume Pipe Co. ltd, AIR 1977 SC 1132 : (1977) 2 SCCC 724......15
34. Suchitra Srivastava v. Chandighar Administration AIR 2010 SC 235………….……….26
35. Vishaka v. State of Rajasthan, AIR 1997 SC. 3011……………………………….…..…19
36. Western Indian Plywood Ltd. v. P. Ashokan, AIR (1997) 7 SCCC 638………………...15
STATUTES AND ACTS
1. Constitution of India
2. Indian Penal Code, 1860
BOOKS REFERRED
8
1. M.P. Jain, Indian Constitutional Law (7th ed. 2016)

2. Basu, D.D.; Commentary on the Constitution of India (8th ed. 2009 vol. 2, 3 & vol.5)
3. Serrvai, H.M.; Constitutional Law of India (4th ed. 2008)
4. Singh, M.P.; Shukla V.N.; Constitution of India (11th ed. 2008)
5. Singhvi, L.M.; Swarup, Jagdish; Constitution of India (3rd ed. 2013)
WEBSITES REFERRED
1. Manupatra, (www.manupatra.com)
2. SCC Online, (www.scconline.com)
3. Westlaw, (www.westlawindia.com)
4. Lexis Nexis Academica, (www.lexisnexis.com/academica)
5. Lexis Nexis Legal, (www.lexisnexis.com/in/legal)
6. SCC Online, (www.scconline.co.in)
7. Hein Online, (heinonline.org)
8. onward.justicia.com
TREATISES
1. European Convention on Human Rights, Article 8

2. International Covenant on Civil and Political Rights, Article 17
3. International Covenant on Civil and Political Rights, Article 19(2)
4. United Declaration on Human Rights, Article 12
5. United Declaration on Human Rights, Article 19
CONSTITUTIONAL PROVISIONS
1. Article 14
2. Article 15
3. Article 16
4. Artice 19 (1) (a)

5. Article 21
9
6. Article 25
7. Article 26
8. Article 38
9. Article 372
JOURNAL REFERRED
1. “The Right to Privacy with era of smart governance – concern raised by the introduction
of biometric – enabled national id cards in India” by Sheetal Asrani; Damm – Legal
Associates, World Bank - Journal of Indian Law Institute, vol 47, ed. 2005
DICTIONARIES REFERRED
1. Black’s Law Dictionary, 7th Ed. (1999)
10
STATEMENT OF JURISDICTION
The Petitioners humbly submit this written submission in response to the writ petition
filed before this Hon’ble Supreme Court.
The petition invokes its jurisdiction under Article 32 of the Constitution of Indica.
It sets forth the facts and the laws on which the claims are based.
11
STATEMENT OF FACTS
1) The gov. of Mandia formulated a policy named Pehchaan for profiling its citizens and to
provide them with a card called Pehchaan. It was provided free of cost by establishing various
cyber cells throughout the country. It was meant for various benefits given by the government
and to check duplicity of identity, illegal immigration, leakages in gov. schemes, corruption,
tax evasion, terrorism and hawala transactions
2) The gov. of Mandia constituted NUIA for making of Pehchaan cards who further assigned this
task to private vendors and further to private entities having expertise in this field. The
Pehchaan card required the basic details like finger prints of both the hands, scanning of iris of
the eyes, blood group, spouse and children details, education qualifications, number of spouses,
religion to which the spouses belong, laws under which marriage is solemnized, life threatening
diseases if any, permanent infertility both in male in females, civil/criminal cases pending in
any court and gov. loan or any other liability
3) Mr. Satish Dhankar challenged this policy in the HC of Nehli through a PIL contending that
the Pehchaan policy violates the right to life including the Right to Privacy and right to speech
and expression especially the right to remain silent and not to part with basic info. about
oneself. He also contended that the info. asked under this scheme is very intimate and integral
to one’s personality and hence making it mandatory to provide basic and intimate info. is
unconstitutional and violative of his FR. He also challenged the policy as there is no
law/statutory support for backing the mandatory making of Pehchaan cards by the gov.
4) The gov. of Mandia made the Pehchaan compulsory for seeking benefits under different social
welfare schemes of the gov. to which the petitioner contended that during the pendency of case
gov. cannot make Pehchaan cards mandatory. On this the HC passed an interim order directing
the gov. not to make Pehchaaan card mandatory. The next day the gov. filed an application to
make a plea that Pehchaan card be allowed to made mandatory for non- benefit schemes like-
making PAN card, applying for gas connection and opening of bank accounts
5) Gov. of Mandia enacted a law called the Pehchaan Act, 2014 making the Pehchaan card
mandatory for all benefit and non-benefit schemes. The law gave statutory basis to the NUIA
and it had a whole chapter on data protection and penalties and punishments for data leakages.
To this the petitioner filed a fresh application in the HC to amend his petition by allowing
12
challenging the Pehchaan Act along with the original prayer for quashing the whole Pehchaan
project.
6) Gov. of Mandia issued a notification making it mandatory for every scheme and programme
and made it mandatory for issuing PAN card, DL, Passport, opening bank account and also
fixed March, 2016 as a deadline for linking Pehchaan cards with bank accounts and PAN cards
failing which penal actions would be initiated.
7) The petitioner contented in the HC of Nehli that-
i) Pehchaan Act, 2014 was violative of Right to Privacy. Data demanded under Pehchaan
scheme is most intimate info. and is integral to personality and hence violation of right
to life under Art 21.
ii) Data collected by the gov. is not safe and it can be leaked to private entities and be
threatening to life and liberty of citizens. 13 crore data of citizens was leaked from
Pehchaan database and is now in the hands of private companies. Recently an IIT
passed graduate hacked into Pehchaan database to use its data for his online payment
App.
iii) Data can be used by majoritarian gov. for communal profiling and hence depriving
citizens of the basic rights and amenities provided by the gov.
8) The Respondent argued in HC of Nehli that- There is no Right to Privacy provided in any
provision of the Constitution of Mandia and gov. will soon bring a substantive law for the
protection of data.
9) The HC of Nehli after hearing both sides rejected the PIL and held that-
i) Pehchaan Act, 2014 is constitutional and the gov. can make it mandatory.
ii) Right to Privacy is a common law right and right to deny info. to the gov. cannot be
held to be FR to protect the state from security and other security problems.
iii) Making Pehchaan mandatory is essential for the benefits to reach to citizens as it will
eradicate problems of duplicity of identities.
10) The Petitioner came to SC of Mandia under SLP praying for quashing the judgement of the
Hon’ble HC of Nehli and to declare Pehchaan Act, 2014 and previous policy of providing
Pehchaan cards as violative of various provisions of the constitution.
13
SUMMARY OF ISSUES
ISSUES RAISED:
The counsels on behalf of petitioner want to raise these issues in front of Hon’ble Supreme Court
of Indica:
I. Whether the Special Leave Petition filed under Article 136 of the Constitution of Mandia
is maintainable or not?
II. Whether the citizens of Mandia have a Fundamental Right to Privacy?
III. Whether the maintenance of a record of biometric data violates the Right to Privacy under
Art.21 of the Constitution?
IV. Whether the Pehchaan card can be made mandatory for the residents of Mandia?
14
SUMMARY OF ARGUMENTS
ISSUE-I
1. WHETHER SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE

CONSTITUTION OF MANDIA IS MAINTAINABLE OR NOT?
It is humbly submitted before this Hon’ble Court that the special leave petition filed by the
petitioner under the provisions of Constitution of Mandia is maintainable on the ground that
there is a grave substantial question of law as it deals with the bodily integrity of the citizens
of Mandia which infringes there Right to Privacy which comes under Art.21, Right to life and
personal liberty. It also puts massive public interest at stake just to facilitate government
interest and this act itself violates the public interest at large. Hence, the petition should be
maintainable under Art.136 of the Constitution of Mandia.
ISSUE-II
2. WHETHER THE CITIZENS OF MANDIA HAVE A FUNDAMENTAL RIGHT TO

PRIVACY?
It is humbly submitted before Hon’ble Court that Right to Privacy is a Fundamental Right as
evolved by the Court in its various pronouncements and by the International treaties of which
Mandia is a signatory and the new privacy policy of Pehchaan card is in violation of the
fundamental right, that is, Right to Privacy, provided to the people under the ambit of Article
21 of the Constitution of Mandia.
Therefore it is humbly submitted before the Hon’ble Court that “Right to Privacy” is an integral
part of right to life and personal liberty guaranteed under article 21.
15
ISSUE-III
3. WHETHER THE MAINTENANCE OF BIOMETRIC DATA VIOLATES THE RIGHT TO

PRIVACY UNDER ARTICLE 21 OF THE CONSTITTION?
It is humbly submitted before this Hon’ble court that the finger prints or the retina scan or any
other biometric method of storing one’s personal information and then using it without the
consent of individual is totally violative of the fundamental right of Right to Privacy envisaged
in Right to life under Art.21 as every individual or citizen in this country had complete control
over his/her body and State cannot insist any person for giving his/her finger tips or iris of eyes,
as a condition precedent to enjoy certain rights and the maintenance of biometric data violates
citizens Right to Privacy.
ISSUE-IV
4. WHETHER THE PEHCHAAN CARD CAN BE MADE MANDATORY FOR ALL

RESIDENTS OF MANDIA?
It is humbly submitted before this Hon’ble court that since the government does not have any
comprehensive law to secure the Pehchaan data and by imposing the Pehchaan card the
government is imposing the duty on the citizens which is giving the state much more rights
that it required for a democratic country. So in the light of above submission the Pehchaan card
should be not be made mandatory to the citizens of Mandia.
16
ARGUMENTS ADVANCED
1. WHETHER SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE

CONSTITUTION OF MANDIA IS MAINTAINABLE OR NOT?
It is humbly submitted and requested before the Hon’ble Court that petition shall be allowed
as substantial question of law of general public importance is involved in this case, which needs
to be finally laid at rest by it for the entire country.
1.1 Special or exceptional circumstances where leave is granted:

1. The powers given under Art.1361 of the constitution are in the nature of special or residuary
powers which are exercisable outside the purview of ordinary law, in cases where the needs of
justice demand interference by the Supreme Court of the land. It vests in the Supreme Court a
plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special
leave, against any kind of judgment or order made by the court or tribunal in any cause or
matter.2
2. It is an exceptional power to be exercised sparingly, with caution and care and to remedy
extraordinary situation or situations occasioning gross failures of justice.3
3. Supreme Court grants special leave to appeal in exceptional circumstances 4, such as when a
question of general importance arises or a decision shocks the conscience of the court5; where
grave and substantial injustice has been done by disregard to the forms of legal process, or
violation of the principles of natural justice, or otherwise.6
1
Art.136, Constitution of Mandia
2
Durga Shankar v. Raghu Raj; AIR 1954 SC 520 : (1955) 1 SCR 267
3
Narpat Singh v. Jaipur Development Authority; (2002) 4 SCC 666, at 674 : AIR 2002 SC 2036. N. Suriyakala v.
A. Mohandoss, (2007) 9 SCC 196 : (2007) 3JT 266; Mohammad Khalil Chisti v. State of Rajashtan, 2013 CrLJ 637
(649) (SC) : (2012) 12 SCALE 254; Sambhu Das v. State of Assam, (2010) 10 SCC 374: (2010) 3 SCC (Cri) 1301
4
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214; Narpat Singh v. Jaipur
Development Authority, (2002) 4 SCC 666.
5
Arunchalam v. Sethuratnam, AIR 1979 SC 1284; Haripada Dey v. State of west Bengal, AIR 1956; Matru v. State
of U.P., AIR 1971 SC 1050
6
Sanwat Singh v. State of Rajashtan, AIR 1961 SC 715: (1961) 3 SCR 120
17
4. Special Leave is granted when:

 There is miscarriage of justice,7
 The question is raised is a pure question of law,8
 There is uncertainty in law so far as the high courts are concerned.9
 The lower court’s findings are recorded by erroneous application of principle of law,
which consequently results in miscarriage of justice.10
5. It is humbly submitted before the Hon’ble Court of Law that the special leave petition which
is filed by the petitioner under the provisions of Constitution of Mandia is maintainable on the
ground that there is a grave substantial question of law as it deals with the bodily integrity of
the citizens of Mandia which infringes there Right to Privacy which comes under Art.21 Right
to life and personal liberty.
6. As Art 21,11 bestows upon an individual right to personal liberty which will be infringed if
Pehchaan cards will be linked with all the personal as well as biometric details of the
individuals, setting an individual in an apprehension that further data may be leaked by the
government as already stated in the fact sheet that the data of 13 crore citizens is leaked. It is
not mere an apprehension but backed by the action which has been taken place.
7. Therefore, it is a substantial question of law because it is a Fundamental Right of crores of
people which is getting violated through this Pehchaan policy.
8. The Special leave petition has to be exercised sparingly and only in furtherance of the cause of
justice and when special circumstances shown to exist. Petition should be allowed as it is a
gross miscarriage of justice and it is gravely infringing the fundamental rights of citizen of
Mandia by collecting there:
 Biometric detail like finger prints of both hands, scanning of iris of eyes, blood group;
7
Kerala State Electricity Board v. Kurien E. Kalathil, (2000) 6SCC 293 : AIR 2000 SC 2573; State of Sikkim v.
Dorjee, AIR 1991 SC 1933 ; (1991) 4 SCC 243; State of U.P. v. Harish Chandra, (1996) 9 SCC 309 : AIR 1996 SC
2173
8
State of U.P v. Indian Hume Pipe Co. Ltd, AIR 1977 SC 1132 : (1977) 2 SCCC 724; Western Indian Plywood Ltd.
V. P. Ashokan, (1997) 7 SCCC 638
9
CCE v. Venus Castings (p) Ltd., AIR 2000 SC 1568 : (2000) 4 SCC 206; CIT V. P.J. Chemicals ltd., AIR 1994 SC
2727 : 1994 (Supp-3) SCC 535
10
Ram Pirari v. Bhagwant, AIR 1990 SC 1742 : (1990) 3 SCC 364.
11
Article 21, Constitutional of Mandia
18
 Personal information such as religion to which both the spouses belong, no. of
spouses, educational qualifications, laws under which marriage is solemnised, details
of life threatening diseases e.g., AIDS and cancer, infertility in males and females,
criminal and civil cases pending in any court of law, governmental loan, liability on the
citizen.
9. Here massive public interest is put at stake just to facilitate government. This very act itself
violates the public interest at large.
10. If data is leaked then it will be used for multiple purposes as data is in hand of private
companies which can use this data for telemarketing, making the life of consumers’ hell by
selling all sorts of products to them.
11. As all this integrated personal information will put the citizens in a very vulnerable state of
threat.
12. Thus the Hon’ble Supreme Court should allow the petition for restoring bodily integrity, right
to remain silent and not to reveal personal information so that they can completely enjoy their
personal liberty.
19
2. WHETHER THE CITIZENS OF MANDIA HAVE A FUNDAMENTAL RIGHT TO

PRIVACY?
It is submitted before this Hon’ble court, that Right to Privacy is a Fundamental Right,
incorporated in the Constitution under the aegis of Art. 21. The right has been implicitly provided
to the people, by way of various pronouncements and interpretation of Art. 21.
2.1 Meaning of Right to Privacy
13. Right to Privacy is vested within Right to life and personal liberty under Art.21. The definition
of the phrase “personal liberty” given by Prof. Dicey, according to whom personal liberty
means freedom from physical restraint and coercion which is not authorized by law. An
unauthorized intrusion into a person’s home and the disturbance caused to him is the violation
of the personal liberty of the individual12. Therefore, Right to life enshrined in Art.21 has been
liberally interpreted so as to mean something more than mere survival and mere existence or
animal existence. It therefore includes all those aspects of life which go to make a man’s life
meaningful, complete and worth living. The Right to Privacy is not just a common law right,
not just a legal right, not just a Fundamental Right under the constitution. It is a natural right
inherent in every individual.
14. Right to Privacy is not just an elitist concern, not just a modern myth, nor entirely irrelevant in
the internet age. The court has rejected any notion that the Right to Privacy is an impediment
to social welfare in any way, and the idea that those who seek socio-economic security do not
care about their civil and political rights.
15. Privacy with its attendant values assures dignity to the individual and it is only when life can
be enjoyed with dignity can liberty be of true substance. As stated in recent judgment of Right
to Privacy13, “To live is to live with dignity.” The Right of Privacy is defined as an
individual's legal right, not explicitly provided in the United States Constitution, to be left
alone and live life free from unwarranted publicity. Privacy rights are considered
12
Kharak Singh v. State of U.P. AIR 1963 SC 1295
13
Justice K. S Puttaswamy v. Union of India AIR 2015 SC 3081
20
fundamental rights. Privacy can also extend to other aspects, including bodily integrity,
personal autonomy, informational self-determination, protection from state surveillance,
dignity, confidentiality, compelled speech and freedom to dissent or move or think. In short,
the Right to Privacy has to be determined on a case-by-case basis. Privacy enjoys a robust
legal framework internationally. Article 12 of the Universal Declaration of Human Rights,
1948 and Article 17 of the International Covenant on Civil and Political Rights (ICCPR),
1966, legally protect persons against “arbitrary interference” with one’s privacy, family,
home, correspondence, honour and reputation.
13. “Privacy enables each individual to take crucial decisions which find expression in the human
personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas,
ideologies, preferences and choices against societal demands of homogeneity. Privacy is an
intrinsic recognition of heterogeneity in creating a zone of solitude”. At a time when
individuals are being told what eat, who to love and marry, to respect or oppose, this assertion
of the citizen’s autonomy sends out an important message to both society and the state. Privacy
with its attendant values assures dignity to the individual and it is only when life can be enjoyed
with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a
core value which the protection of life and liberty it intended to achieve. The dignity of the
individual, equality between human beings and quest for liberty are the foundational pillars of
the Mandian constitution.
2.2 Implication of Right to Privacy under Article 21
14. In the case of Kharak Singh v. State of U.P.14, privacy was though denied the status of a
fundamental right, but it was affirmed by the bench that it indeed is a human right under
common law, while construing the meaning of personal liberty. The dissenting opinion of
SubbaRao J. did impute the Right to Privacy as a fundamental right under the ambit of personal
liberty but the same was not reckoned by the majority.
15. In Gobind Singh v. State of M.P.15, the Supreme Court, through a three judge bench stated
that privacy is a concern for an individual and is a part of the concept of liberty. Furthermore,
14
Supra note at 12, Kharak Singh case
15
Gobind Singh v. State of M.P. AIR 1975 SC 1378
21
in the case of R. Rajagopal v. State of T.N.16, more popular as the Auto Shankar case, the
scope of right to be left alone was widened. The bench of the Supreme Court, decided to give
a constitutional status to Right to Privacy stating that it is “implicit in the right to life and
personal liberty”.
16. In the evolution of the law over Right to Privacy, in the case of People’s union for Civil
Liberties v. Union of India17, it was admitted by the bench that Right to Privacy is a part of
the right to life and personal liberty. Although the bench refused to define privacy, it did
reckon that the infringement of the privacy would depend upon the basis of the facts of the
various cases, considering the concept to be too broad and moralistic in order to define it in a
judicial manner.
17. It is therefore submitted before this Hon’ble Court, that though Right to Privacy has not been
explicitly mentioned as a fundamental right in the Constitution, it still is a part of the same as
it is one of the essential ingredients of personal liberty. Today, the right has become, by
evolution a multifaceted right. For instance, bodily privacy has been affirmed in the case of
‘X’ v. Hospital ‘Z’18, financial privacy in the case of District Registrar and Collector v.
Canara Bank19, communication privacy in the case of R. M. Malkani v. State of
Maharashtra20, et.al. Therefore, Right to Privacy has now been given the status of the
fundamental right.
18. Apart from Right to Privacy being a fundamental right, it is pertinent here to mention about
the importance of the international treaties and laws on privacy which is to be respected
according to Article 5121 of the constitution, in case if there is not a law already made for the
issue which is being dealt with.
19. In the landmark case of Vishaka v. State of Rajasthan22, it was propounded by the bench that
if a fundamental right is being infringed and there is not any domestic legislation to deal with
it then the subject must be construed in line with the provisions in the international treaties
and conventions, to which the country is a party.
16
R. Rajagopal v. State of T.N. AIR 1995 SC 264
17
People’s Union for Civil Liberties v. Union of India AIR 1997 SC 568
18
‘X’ v. Hospital ‘Z’ AIR 1999 SC 495
19
District Registrar and Collector v. Canara Bank AIR 2005 SC 186
20
R. M. Malkani v. State of Maharashtra AIR 1973 SC 157
21
Article 51, Constitution of Mandia.
22
Vishaka v. State of Rajasthan, AIR 1997 SC. 3011.
22
20. This approach was undertaken in the case of Kharak Singh v. State of U.P.23, and, Gobind v.
State of M.P.24. To make the position clear over the use of international treaties, the court in
the Auto Shankar case25 cited Article 8 of the European Convention on Human Rights26
(ECHR) which does not treat privacy as an absolute right but indeed as an imperative right
needed in a democratic society. Article 12 of Universal Declaration of Human Rights27 and
Article 17 of International Covenant on Civil and Political Rights28 asks for the maintenance
of privacy. This was referred to in the case of People’s union for Civil Liberties v. Union of
India case29. To both of these, India is a signatory.
21. Considering the aforementioned treaties and covenants and the provisions therein, which
explicitly states that privacy as an essential right of human being and its violation is non-
congruous to the meaning of life, it is therefore submitted before the court to consider these
international law treaties and jurisprudence while dealing with the case in hand.
22. Any kind of invasion into the privacy of the individual is wrong per se, and this has been
upheld by the court by way of various judgments and pronouncements such as in the auto
Shankar case30, PUCL case31, case of R.M. Mlakaniv. State of Maharashtra32 et.al. Also, the
courts at times have refused to admit the evidences based on such intrusion to privacy of an
individual33.
23. It is pertinent to note that the jurisprudence in the country has not developed much in this
direction unlike the case in Europe and America, and due to such situations the Supreme Court
has at numerous occasions considered the jurisprudence of these places as was done in the
case of Shreya Singhal v. Union of India34. The case of Griswold v. Connecticut35and Roe v.
Wade36 which was dealt in the US Supreme Court was used by the apex court of India in the
23
Supra note at 12, Kharak Singh case
24
Supra note at 14, Gobind case
25
Supra note at 16, Auto Shankar case.
26
European Convention on Human Rights, Article 8, Effective from September 3, 1953.
27
United Declaration on Human Rights, Article 12, adopted on December 10, 1948
28
International Covenant on Civil and Political Rights, Article 17, Signed on December 16, 1966
29
Supra note 17, PUCL case
30
Supra note 16, Auto Shankar case
31
32
Supra note 20, Malakani case.
33
K.L.D. Nagasree v. Government of India AIR 2007 AP 102:
34
ShreyaSinghal v. Union of India, (2015) 5 SCC 1.
35
Griswold v. Connecticut, 381 US 479 (1965)
36
Roe v. Wade, 410 US 113 (1973)
23
auto shankar case to highlight to invasion of government bodies into an individual’s privacy
and the violation of Article 21.
24. In the case of Selvi v. State of Karnataka37, the court held that if an individual is being forced
to give the consent for any purpose then that is a kind of intrusion into personal liberty. Even
in the auto Shankar case, the Supreme Court said that right to be left alone which is a corollary
of Right to Privacy incorporates the principle of consent.
25. The Right to Privacy in any event will necessarily have to go through a process of case -by-
case development. Therefore, even assuming that the right to personal liberty, the right to
move freely throughout the territory of Mandia and the freedom of speech create an
independent Right to Privacy as an emanation from them which one can characteristic as
a Fundamental Right. The right most valued by civilized men, the right to be left alone. But
in our age, the age of internet, the right to be left alone includes also the right to be put out
there, or exposed involuntarily.
 Forced disclosure of the information that comprises our identities in the age of biometric
identification, social profiles, and cashless economic transactions, damages an essential
component of all personal liberties.
 Whether the individual’s information is used on its own, or is analyzed, profiled or linked
in the “social graph” to that of other related persons, forced disclosure of personal
information in today’s society creates power in the state which receives the information.
 Not all of the constitutional right of privacy cases in the age of the internet will involve
forced disclosures. The cases that will matter most, should the court decide in favour of the
fundamental right, will be where the government imposes a form of disclosure that, like
limitations on physical movement, inhibits the ability to be oneself.
 Court would find that the fundamental Right to Privacy is infringed when forced disclosure
of personal information to government interfere with the exercise of any of the freedoms
the Art.19 protects, when you cannot actually have your freedom of movement, or of
37
Selvi v. State of Karnataka, AIR 2010 SC 1974
24
expression, for example, because you are compelled to give information that empowers
government to restrict deny your rights.
26. The liberties guaranteed under Art.21, where, an Aadhar number is required before a patient
can request ambulance service ,as has been ordered recently in UP, the right to medical care
protecting life declared by Supreme court in Parmanad Katara v. Union of India38; in this
case violated by compelled disclosure of identity.
27. Supreme Court decides the present issues fully; it will find that the common factors in all
successful constitutional privacy claims are -
 The forced disclosure of personal information
 Under circumstances adversely affecting an individual’s ability to exercise freedoms

protected by Art.19 or liberties guaranteed by Art.21
 Also the terms of Art.14, that all persons must be equally treated with respect to
requirements of personal information disclosure, without discrimination.
28. The importance of a fundamental right in our system is that it can only be enforced against
the state. Platform social media companies receive voluntary disclosures of personal
information in immense quantities every minute, but they are not subject to constitutional
controls. Moreover, though these corporate are indeed ubiquitous in our lives, they are not
obligatory. In dealing with them, we still have choices only the poor of the state can, in fact,
compel us to expose ourselves more fully than we choose to do.
29. Right to Privacy of the Mandian citizen got more teeth against the arbitrary action the state.
The supreme court’s ruling that the “Right to Privacy” is an integral part of right to life and
personal liberty guaranteed under article 21 of the constitution will be seen in the light of its
immediate context – the Pehchaan case.
30. Therefore, it is submitted before this Hon’ble court by the counsels for the petitioner that the
new privacy policy of Pehchaan card is in violation of the fundamental right, that is, Right to
Privacy, provided to the people under the ambit of Article 21 of the Constitution of Mandia.
38
Parmanad Katara v. Union of India AIR 1989 SCR (3) 997
25
3. WHETHER THE MAINTENANCE OF BIOMETRIC DATA VIOLATES THE RIGHT

TO PRIVACY UNDER ARTICLE 21 OF THE CONSTITTION?
It is to be humbly submitted before the Hon’ble Court of Law that every individual or citizen
in this country had complete control over his/her body and State cannot insist any person from
giving his/her finger tips or iris of eyes, as a condition precedent to enjoy certain rights and the
maintenance of biometric data violates citizens Right to Privacy.
3.1 Biometric Pehchaan Cards are a threat to privacy

31. There are certain things that the State simply cannot do, because the action fundamentally
alters the relationship between the citizens and the State. The wholesale collection of
biometric data including finger prints and storing it at a central depository per se puts the State
in an extremely dominant position in relation to the individual citizen. Biometric data belongs
to the concerned individual and the State cannot collect or retain it to be used against the
individual or to his or her prejudice in the future.
32. Further the State cannot put itself in a position where it can track an individual and engage in
surveillance. The State cannot deprive or withhold the enjoyment of rights and entitlements
by an individual or makes such entitlements conditional on a citizen parting with his/her
biometrics.
33. Being a conscientious person in the society, no one wants to give away his finger tips or iris
to private persons who were engaged as contractors/private enrollers by the Govt. for
undertaking the job of enrolment under the Pehchaan. It is to be submitted that the data given
to such persons are not safe and there was huge possibility that the same maybe leaked.
Further, requirement of giving Pehchaan number for every transaction amounted to
surveillance by the State and the entire profile of such persons would be available to the State.
34. In today’s technology, there was every possibility of copying the fingerprint and even the iris
images. Various cases of fake Pehchaan Card has come to light. There are instances of
Pehchaan leak as well. Even hacking is possible. As the collection of biometrics information
is with the private authorities in a very poorly and unorganized manner which results in
various reports of data breaches and the storage of these biometrics information in large
26
deposits is considerable risk for the security of these information’s and also these data of
private information is stored in central identities data repository from where hacking and
destroying the data is easily assessable. These are the issues within the realm of ‘Right to
Privacy’ which were to be decided by the Constitution Bench.
35. It is to be submitted that a citizen is entitled to enjoy all these rights including social and civil
rights such as the right to receive an education, a scholarship, medical assistance, pensions
and benefits under government schemes without having to part with his or her personal
biometrics.
36. An individual’s biometrics such as finger prints and iris scan are the property and entitlement
of that individual and the State cannot coerce an individual or direct him or her to part with
biometrics as a condition for the exercise of rights or the enjoyment of entitlements.
37. Every citizen has a basic right to informational self-determination and the state cannot
exercise dominion over a citizen’s proprietary information either in individual cases or
collectively so as to place itself in a position where it can aggregate information and create
detailed profiles of individuals or facilitate this process.
38. The Constitution of Mandia is not a charter for a Police State which permits the State to
maintain cradle to grave records of the citizenry. No democratic country in the world has
devised a system similar to Pehchaan which operates like an electronic leash to tether every
citizen from cradle to grave.
39. In National Legal Services Authority v. Union of India & Ors. Article 21, as already indicated,
guarantees the protection of “personal autonomy” of an individual.
40. In Anuj Garg v. Hotel Assn. of India39 this Court held that personal autonomy includes both
the negative right of not to be subject to interference by others and the positive right of
individuals to make decisions about their life, to express themselves and to choose which
activities to take part in. Self-determination of gender is an integral part of personal autonomy
and self-expression and falls within the realm of personal liberty guaranteed under Art.21 of
the Constitution of India.”
39
AIR (2008) 3 SCC 1] (SCC p. 15, paras 34-35)
27
41. In Kharak Singh40 case Subba Rao, J. quoted Field, J. in Munn v. Illinois41 to emphasise the
quality of life covered by Art.21: “Something more than mere animal existence. The inhibition
against its deprivation extends to all those limbs and faculties by which life is 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.”
42. Aruna Ramachandra Shanbaug v. Union of India & Ors42, it was held that in common law it
is the right of every individual to have the control of his own person free from all restraints or
interferences of others. Every human being of adult years and sound mind has a right to
determine what shall be done with his own body. In the case of medical treatment, for
example, a surgeon who performs an operation without the patient's consent commits assault
or battery. It follows as a corollary that the patient possesses the right not to consent i.e. to
refuse treatment. This is known as the principle of self-determination or informed consent.
43. The right to life covers and extends to a person’s right to protect his or her body and identity
from harm. The right to life extends to allowing a person to preserve and protect his or her
finger prints and iris scan. The strongest and most secure manner of a person protecting this
facet of his or her bodily integrity and identity is to retain and not part with finger prints/iris
scan.
44. The right to life under Art.21 permits every person to live life to the fullest and to enjoy
freedoms guaranteed as fundamental rights, constitutional rights, statutory rights and common
law rights. The effect of the impugned provision is to coerce persons into parting with their
finger prints and iris scan and lodging these personal and intimate aspects of an individual’s
identity with the State as part of a programme that is wholly illegitimate.
45. Pehchaan policy violates the Right to Privacy as the scheme is directly interfering with the
physical body of an individual who has to provide his biometric information aforesaid to get
himself registered in the government records.43
40
Supra note 12, Kharak singh case
41
[94 US 113 (1877)]
42
(2011) 4 SCC 454
43
Mr CJ Karira v. Planning Commission, Government of New Delhi.
28
3.2 Providing general information can lead to a proper identification

46. It is to be submitted before the Hon’ble Court that by abolishing the system of biometrics
information and just providing general information can also lead to a proper identification of
an individual and on records of the government also.
47. Looking very deep into the topic the counsel come across a very important aspect of
government’s continuous attempts to amending the fundamental rights as government is
directly affecting an individual’s Right to Privacy and creating a risk to their personal data
which should be kept safe. But it is laid down in the case of Keshavnanda Bharti v. State of
Kerala44 that any part of the constitution can be changed except the basic structure of the
constitution which also counts fundamental right.
48. Biometric system cannot authenticate a person with 100 percent certainty as there are no
safeguards or penalties and no legislative backing for obtaining personal information.
49. When tapping of telephonic conversation45, disclosure of dreadful disease46, Right to Privacy
and subjecting to medical tests47, women’s right to make reproductive choices48 can be
considered as Right to Privacy then how giving our biometric details49 cannot be considered
as infringement of Right to Privacy.
50. NUIA is definitely violative of the fundamental right of privacy as it misuses the personal
information for a variety of purposes not only by government organization but also private
institutions.
51. It is to be submitted before the Hon’ble court that the finger prints or the retina scan or any
other biometric method of storing one’s personal information and then using it without his
consent is totally violative of the fundamental right of Right to Privacy envisaged in Right to
life under Art.21 forming the heart of fundamental rights.
44
(1973) 4 SCC 225
45
46
Supra note 18, X case
47
Sharda v. Dharmpal, AIR (2003) SC 3450
48
Suchitra Srivastava v. Chandighar Administration AIR 2010 SC 235
49
Supra note13, Puttaswamy case
29
4. WHETHER THE PEHCHAAN CARD CAN BE MADE MANDATORY FOR ALL

RESIDENTS OF MANDIA?
It is humbly submitted before the Hon’ble Supreme Court that Pehchaan Card cannot be made
mandatory for all residents of Mandia because of the following arguments-
4.1 Phechaan card systems lead to function creep and discrimination:
Function creep means- the gradual widening of the use of a technology or system beyond the
purpose for which it was originally intended, especially when this leads to potential invasion of
privacy.
52. Pehchaan Card was introduced for a certain purpose but now is expanded beyond its original
intent. In the case of the unique identification (UID) project, it was promoted as providing the
poor with an identity. Then, it was about de-duplicating the entire population, so that each
person would have one unique number by which they could be identified. Then it was to get
rid of ‘ghosts’ and ‘duplicates’ in welfare systems and to prevent ‘leakages’. Then data as
property and the exploitation of the UID number for making people leave detailed digital
footprints became the game. Then it became a precondition for underserved and socio-
economically vulnerable people to get any manner of state assistance. Then, from denial of
entitlements if a person is not enrolled or does not seed their number, it has reached a point
where not having a UID number will force you to commit an offence because you want to pay
your taxes, but you cannot, because the government will refuse to accept tax payment from
you if you do not give them your UID number. And they will cancel your PAN card and then
levy a penalty because you do not have a PAN card.
53. It has lead to invasion of privacy. Every identity system is made up of a support register
containing personal information parallel to that on the ID card. When this information is
maintained on a central database, the ID number acts as a common identifier for multiple
government agencies. The risks that this poses for individual privacy is monumental.
Centralized information is centralized power. A national identifier contained in an ID card
enables disparate information about a person scattered in different databanks to be easy linked
30
and analyzed through data mining techniques. Moreover, multiple agency access to sensitive
data greatly increases the potential for misuse of personal information, either through corrupt
disclosure or lapses in security.
4.2 Phechaan cards systems shift the balance of power from the individual to the state
54. Pehchaan systems invariably pave the way for the convergence of government services and
the development of a comprehensive linkage between public and private sector information
systems. Such initiatives turn nations into more authoritarian societies50. This profound
impact in inevitable because the Phechaan card is a component of complex web of technology
that fuses the most intimate characteristics of the individual with the machinery of state. In
order to give the card, the necessary legal gravity, its introduction is accompanied by a
substantial increase in police power. Authorities will, after all, want to demand the card in a
wide range of circumstances, and people must be compelled to comply. Government rarely
promotes this sobering outcome. Instead, such initiatives are benignly dressed up as “citizen
cards” guaranteeing entitlement to benefits and services, and streamlining a person’s dealings
with the government.
55. The law leaves too much power in the hands of the executive. For instance, the bill gives the
NUIA powers to determine if it should collect any biological attribute of people too. This
means the government could at a later date mandate that DNA of all Pehchaan numbers too
be collected.
56. The biometrics of citizens are of citizens alone. The government can have no claim over them.
In the Identification of Prisoner's Act, 1920, recognizes the right of a person to protect his or
her finger impressions. These short Act comprising 8 sections requires persons convicted of
offences punishable with rigorous imprisonment for a term of one year or more to allow his
measurements and photographs to be taken by a police officer. A measurement may also be
taken when a person is arrested in connection with such an offence. A magistrate may order
a person to give finger impressions or a photograph for the purposes of investigations.
50
Moot Proposition p.4 para 20
31
57. Resistance is deemed to be an offence under Section 186 of the IPC 51 (Obstructing a public
servant in the discharge of his duty). Where a person is not a repeat offender, his photographs
(negatives and copies) and all measurements are required to be destroyed when he is released
without trial or discharged or acquitted.
58. This pre-constitutional regime, which gave limited rights to the state, is now being turned on
its head with wholesale trawling of fingerprints through an administrative scheme with no
statutory protection to individuals
4.3 No Data protection law in the state of Mandia
59. The question of whether or not the government’s bureaucracy is equipped to handle something
like the Pehchaan database and this is pertinent as the incapability to do so will only make it
easier for hackers to target the Pehchaan system. It is clearly evident from the facts of the case
that hackers and internet users leaked crores of data from Pehchaan database which are now
it is in the hands of the private companies. This shows that bureaucracy is not well equipped
to handle the Pehchaan system currently.
60. Despite the critical importance of the Pehchaan number to all residents of Mandia, especially
the poor, as well as the several doubts raised over the accuracy of the technology, the
government has not provided for a grievance redressal system in the act. It included no
provision for cases where a person has been denied a Pehchaan number or has run into
authentication issues, depriving them of access to a subsidy or service. A system of this scale
would likely require an independent nation-wide, taluk-level grievance redressal mechanism,
but the Pehchaan Act, 2014 does not even hint at such a mechanism. Instead, Clause 23 (2)
(s) of the Pehchaan Act delegates the entire process of setting up grievance redressal
mechanisms to the NUIA. It is not good policy to leave such a vital function to the very agency
that is responsible for the administration of the project.
61. The project is also ultra vires because there is no statutory guidance-
i) on who can collect biometric information
ii) on how the information is to be collected
iii) on how the biometric information is to be stored
51
Sec 186 - Obstructing a public servant in the discharge of his duty
32
iv) on how throughout the chain beginning with the acquisition of biometric data to its
storage and usage, this data is to be protected
v) on who can use the data
vi) on when the data can be used.
4.4 Sharing of one’s integral intimate information with government is imposition of duty on
an individual by state
62. The impugned provision is wholly disproportionate and excessive. The so called state interest
is minuscule compared to the massive invasion on person liberty and freedom of an individual.
63. If a person chooses not to enroll, at the highest, in terms of the Pehchaan Act he or she may
be denied access to certain benefits and services funded through the Consolidated Fund of
India. When the Pehchaan enrolment procedure is supposedly based on informed free consent
and is voluntary a person cannot be compelled by another law to waive free consent so as to
alter the voluntary nature of enrolment that is engrafted in the parent statute.
64. By visiting a conscientious objector (such as the petitioners) or any other person who does
not have a Pehchaan number with severe consequences, the object of the impugned provision
is itself discriminatory and violative of Art.1452. There is no justification for discriminating
against persons who do not wish to part with their sensitive biometric information such as
finger prints and iris scan.
65. The impugned provision in effect treats an individual’s finger prints and iris scan as belonging
to the state, blurring the distinction between the individual and the state. The impugned
provision reduces to a mirage the voluntary nature of enrolment carried out under the
Pehchaan Act. It compels Pehchaan enrolment which is directly in conflict with the Pehchaan
Act.
66. A statutory provision that completely takes away the voluntary nature of Pehchaan and
compels expropriation of a person’s finger prints and iris scan is per se violative of Art.21. In
any event, such coercion cannot be imposed on legitimate tax payers and assesses who are
otherwise willing to and pay income tax. There is no concept of eminent domain of the state
qua a person and his body.
52
Art.14, under Constitution of Mandia
33
67. The state cannot hold an individual citizen hostage, by compelling them to part with
something that does not belong to the state.
68. In a digital world, the right to life includes maintaining personal autonomy through
informational self-determination. An individual must be allowed to limit what he or she wants
to put out because otherwise her personal autonomy could get compromised. The coercion
amounts to compelled speech. The freedom of speech includes the right to remain silent. Here,
the citizen is being compelled to speak or part with his or her demographic information as
well as finger prints and iris scan. The impugned provision violates Art.19(1) (a)53 and is not
saved under Art.19(2)54.
69. Whenever a person voluntarily entrusts his finger prints and iris scan to the state, the
‘property’ and entitlement is retained with that individual throughout his life. The state merely
acts as a trustee or fiduciary. The trustee or fiduciary cannot compel the “beneficiary” to part
with such sensitive person information.
70. The framework of the Pehchaan Act is founded on voluntary enrolment. This is a foundational
premise of the programme. According to the state, “free informed consent” is the essence of
Pehchaan. The state cannot alter this basic premise based on which individuals were asked to
enrol.
71. There is no comparison between the existing PAN system and the proposed or intended
Pehchaan number system as the PAN system does not require parting with the fingerprints
and iris scan of an individual; Expose personal information and data to private enrollers; create
an ecosystem of authentication that potentially could compromise the identity of the
individual.
Therefore, it is humbly submitted by the council before the Hon’ble SC that since the government
does not have any comprehensive law to secure the Pehchaan data and by imposing the Pehchaan
card the government is imposing the duty on the citizens which is giving the state much more
rights that it required for a democratic county. So in the light of above arguments the Pehchaan
card should be not be made mandatory to the citizens of Mandia.
53
Art.19(1)(a), under Constitution of Mandia
54
Art 19 (2), under Constitution of Mandia
34
PRAYER
Wherefore, in the lights of facts stated, issues raised, authorities cited & arguments advanced, it
is most humbly prayed & implored before the Hon’ble Court, that it may be graciously pleased
to adjudge & declare –
35
1. That, the Special Leave Petition filed under Art.136 of the Constitution of Mandia is
maintainable.
2. That, the citizens of Mandia have a Fundamental Right to Privacy.
3. That, the maintenance of a record of biometric data violates the Right to Privacy under
Art.21 of the Constitution.
4. That, the Pehchaan card cannot be made mandatory for the residents of Mandia.
5. That, to declare Pehchaan Act, 2014 unconstitutional.
And pass any other relief, that this Hon’ble Court may deem fit and proper in the interest of
justice, equity and good conscience.
For this act of Kindness, the petitioner shall be duty bound forever pray.
Sd/-
ALL OF WHICH IS RESPECTFULLY SUBMITTED
COUNSELS FOR THE PETITIONER
36

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JUSTIFIED 2018, 3rd NATIONAL MOOT COURT COMPETITION

TEAM CODE :TC-01P

JUSTIFIED 2018, 3rd NATIONAL MOOT COURT COMPETITION

BEFORE THE HON’BLE SUPREME COURT OF INDICA

GAZ FOUNDATION & ORS.

WRIT PETITION NO. ****/2018

Upon Submission to the Hon’ble Supreme Court of Indica

MEMORANDUM ON BEHALF OF THE PETITIONERS DRAWN

List of Abbreviations ..............................................................................................................iv

Index of Authorities .................................................................................................................v

Statement of Jurisdiction .......................................................................................................ix

Statement of Facts ....................................................................................................................x

Statement of Issues ............................................................................................................... xii

Summary of Arguments ...................................................................................................... xiii

Arguments Advanced ..............................................................................................................1

[1]. That the Special Leave Petition is mainatainable............................................................1

[1.1]. The matter involves Question of Law of General Public Importance......................1

[1.2.1] Substantial Question of Law is involved............................................................2

[1.2.2] Gross Injustice has been done ............................................................................3

[3.1] Violation of the Fundamental Right to Privacy of the People ..................................5

[3.2] Mandia’s Commitment under International Law ......................................................6

Established by Law’ as per Art. 21 of the Constitution .................................................8

[3.1.2] The Pehchaan Project of the Government is in violation of Art. 19 of the

[3.1.3] The Pehchaan Project of the Government is in violation of Art. 14 of the

[3.1.3.1] Test of Reasonable classification ..............................................................11

[3.1.3.2] Test of Arbitrariness ..................................................................................12

[3.1.3.2.1] Disclosure of Religion ........................................................................13

[3.1.4.1.1] Deprivation of choice .........................................................................15

[3.1.4.1.2] Constant State Surveillance ................................................................15

[3.1.4.2] The restrictions imposed by the Government on the Fundamental Right of

[3.1.4.2.1] Narrow Tailoring Test ........................................................................17

[4.1] Lack of Security measures to prevent Leakage of Data ..........................................19

[4.1.1] Prevalence of Identity Theft .............................................................................19

[4.1.2] De-duplication of Identities ..............................................................................19

[4.2] There are no adequate safeguards against misuse of Pehchaan Database...............20

[4.3] Delegation of Authority to Private Entities and Private Vendors ...........................20

Prayer for Relief .....................................................................................................................21

Abbreviations Full Form

CASE LAWS CITED

Name of Case Citation

Fitzpatrick v. Sterling Housing (1999) UKHL 42; (1999) 4 All ER

Goodridge v. Department of Public Health 798 N.E.2d 941

Government v. Bapoji Bhatt (1884) (7) Mysore LR 280

Grace Jeyaramani v. EP Peter AIR 1982 Karnataka 46

Karner v. Australia No. 40016/98

Law v. Canada (1991) 1 S.C.R 497

Noris v. Republic of Ireland (1988) no. 1051/83

R. Rajgopal V. State of Tamil (1995) AIR 264, 1994 SCC (6)

Sutherland v. UK Application No. 25186/94

The National Coalition for Gay and (1998) ZACC 15

Noshirwan V. Emperor AIR 1935 Sind. 78

Queen Emprise v. Khairati 1884 ILR 6 ALL 204

Toonen v. Australia Communication No. 488/1992,

13. Keshvanand Bharti v. State of Kerala (1973) 4 SCC 225…………………………….…26

STATUTES AND ACTS

1. M.P. Jain, Indian Constitutional Law (7th ed. 2016)

1. European Convention on Human Rights, Article 8

4. Artice 19 (1) (a)

1. Black’s Law Dictionary, 7th Ed. (1999)

1. WHETHER SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE

2. WHETHER THE CITIZENS OF MANDIA HAVE A FUNDAMENTAL RIGHT TO

3. WHETHER THE MAINTENANCE OF BIOMETRIC DATA VIOLATES THE RIGHT TO

4. WHETHER THE PEHCHAAN CARD CAN BE MADE MANDATORY FOR ALL

1. WHETHER SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE