PETITIONER T-29

IV Justice Murtaza Husain Memorial

Moot Court Competition – 2017

BEFORE THE HON’BLE SUPREME COURT OF MANDIA

SATISH DHANKAR ………………………………………PETITIONER

VERSUS

UNION OF MANDIA ………………………………………. RESPONDENT

PETITION INVOKED UNDER ART. 136 OF

THE CONSTITUTION OF MANDIA

MEMORIAL FOR PETITIONER

1
PETITIONER T-29

TABLE OF CONTENTS

TABLE OF CONTENTS ----------------------------------------------------------------------------------- 2

LIST OF ABBREVATIONS ------------------------------------------------------------------------------ 3

INDEX OF AUTHORITIES ------------------------------------------------------------------------------ 5

TABLE OF CASES------------------------------------------------------------------------------------------ 6

STATEMENT OF JURISDICTION--------------------------------------------------------------------- 8

STATEMENT OF FACTS --------------------------------------------------------------------------------- 9

STAEMENT OF ISSUES --------------------------------------------------------------------------------- 11

SUMMARY OF ARGUMENTS ------------------------------------------------------------------------- 12

ARGUMENTS ADVANCED----------------------------------------------------------------------------- 14

ISSUE-1 WHETHER PEHCHAAN ACT, 2014 CAN BE HELD UNCONSTITUTIONAL

OR NOT?-------------------------------------------------------------------------------------------------- 14
1.RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT. ------------------------------------- 14
2. PEHCHAAN ACT, 2014 VIOLATES RIGHT TO PRIVACY OF THE PEOPLE BY
COLLECTING PERSONAL INFORMATION OF PEOPLE. ---------------------------------- 18
3. PEHCHAAN ACT, 2014 IS VIOLATIVE OF ART.13(2) OF THE CONSTITUTION OF
MANDIA.------------------------------------------------------------------------------------------------ 22
ISSUE-2 WHETHER PEHCHAAN CARD CAN BE MADE MANDATORY OR NOT?
--------------------------------------------------------------------------------------------------------------- 23
1.PEHCHAAN ACT, 2014 VIOLATES RIGHT TO FREEDOM OF SPEECH AND
EXPRESSION ESPECIALLY RIGHT TO REMAIN SILENT --------------------------------- 23
2.THE PROVISION OF MAKING PEHCHAAN MANDATORY VIOLATES RIGHT TO
TRAVEL ABROAD.----------------------------------------------------------------------------------- 24
ISSUE 3: WHETHER DATA PROTECTION LAWS ARE IN ACCORDANCE WITH
REQUISITE STANDARDS OR NOT? ------------------------------------------------------------- 26

PRAYER ------------------------------------------------------------------------------------------------------ 29

2
PETITIONER T-29

LIST OF ABBREVATIONS

¶ Paragraph

& And

A.I.R. All India Reporter

Anr. Another

Art. Article

Corp. Corporation

Govt. Government

Hon’ble Honorable

H.C High Court

i.e. That is

IT Information
Technology
Ltd. Limited

M.P Madhya Pradesh

Ors. Others

Pvt. Private

R.T.I. Right to
Information
S.C. Supreme Court

S.C.C. Supreme Court

Cases

3
PETITIONER T-29

S.C.R. Supreme Court

Reports
SLP Special Leave
Petition
U.O.I. Union of India

v. Versus

w.w.w. World Wide Web

4
PETITIONER T-29

INDEX OF AUTHORITIES

BOOKS
1.M.P. Jain, Indian Constitutional Law (6th ed., 2010)
2. Dr.S.C. Kashyap, Constitutional Law of India (1st ed., 2008)
3. A.P. Datar, Commentary on the Constitution of India (2nd ed., 2007)
4. H.K. Saharay, The Constitution of India (4th ed., 2012)
5. N. Kumar, Constitutional law of India (9th ed., 2015)
6. D.D. Basu, Commentary on the Constitution of India(16th ed., 2005)
7. J.N. Pandey, Constitutional Law of India (3rd ed., 2008)
8. S. Jagarao, Information Technology Act (2nd ed., 2010)
9.R. Jethmalani& D.S. Chopra, Media Laws(1st ed., 2015)
10. P.K. Das, The Right to Information Act (2nd ed., 2009)

STATUTES
1.The Constitution of India
2.The Information Technology Act, 2000
3.The Right to Information Act, 2005

DICTIONARIES
1. Webster’s New International Dictionary (1926)
2. Bryan A. Garner, Black’s Law Dictionary (8th Ed. 2001)

LEGAL WEBSITES
1. http://www.supremecourtofindia.nic.in
2. http://www.indiankanoon.org
3. http://www.manupatra.com

5
PETITIONER T-29

TABLE OF CASES

S.No. Name of The Case Citation Page No.

1. Amar Singh v. Union of India AIR 2011, SCC 69 16

2. Bijoy Emmanuel v. State of Kerala AIR 1987, SCC 748 23

3. District Registrar and Collector v. AIR 2005, SC 186 19

Canara Bank
4. Francis Coralie v. Union Territory of AIR 1981, SC 746 15
Delhi
5. Govind v. State of Madhya Pradesh AIR 1975, SC 1378 15

6. Her Majesty, The Queen v. Bradon Roy 1988, EU 417 27

Dyment
7. Indian Express Newspaper Private AIR 1985, SCC 641 15
Limited v. Union of India

8. Justice KS Puttaswamy(Retd.) and AIR 2017, SC 494 17, 20, 27

anothers v. Union of India and others
9. Malak Singh v. State of Punjab and AIR 1981, SCC 420 18
Haryana
10. Maneka Gandhi v. Union of India AIR 1978, SC 597 14, 25

11. Mr. X v. Hospital Z AIR 1998, SC 125 20

12. M.K.V v. France 2013, Fra 321 19

13. M. Nagaraj& Others v. Union of India& (2006) 8 SCC 212 15

Others
14. National bank of Canada v. R.C.U. [1984] 1 SCR 269 23

15. People Union for Civil Liberties v. Union AIR 1997, SC 568 14
of India
16. Ram Jethmalani v. Union of India AIR 2011, SCC 1 16

6
PETITIONER T-29

17. Ramlila Maidan Incident v. Home AIR 2012, SCC 1 16

Secretary, Union of India
18. Raad v State 2008, EU 121 19

19. R. Rajagopal v. State of Tamil Nadu AIR 1995, SC 264 15,18

20. Satwant Singh v. Assistant Passport AIR 1967, SC 1836 25

Officer, New Delhi

21. State of Punjab v. Dalbir Singh AIR 2012, SC 1040 22

22. State of Karnataka v. Krishnappa AIR 2000, SCC 75 16

23. West Bengal v. Committee for Protection AIR 2010, SC 1476 22

of Democratic rights, West Bengal

7
PETITIONER T-29

STATEMENT OF JURISDICTION

The Petitioner has approached under Art. 136 which that states:
Specialleave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any Court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence or order
passed or made by any Court or tribunal constituted by or under any law relating to the Armed
Forces.1

1
Article 136, Constitution of Mandia

8
PETITIONER T-29

STATEMENT OF FACTS

MANDIA AS A COUNTRY

1. The Republic of Mandia got independence from Britica on 15 September,1946. After

getting independence, it enacted its constitution which provided for democratic
parliamentary form of governance along with independent and autonomous judiciary and
election commission. Higher judiciary is made guardian and interpreter of constitution.
The state of Mandia is a union of state and is secular state.
2. Government of Mandia formulated a policy named ‘Pehchaan’ for profiling of its citizen
and to provide them a card called Pehchaan. The Pehchaan was meant to identify citizens
for various benefits given by Government. Policy is based upon concept of ‘zero
tolerance for corruption’. Duplicity of election card will also be checked through
Pehchaan card. It is also aimed at eliminating all forms of terrorism.
3. On 30th November,2009 government constituted National Unique identification authority
and this authority started the work of making Pehchaan and assigned the work to private
entities having expertise in field.
4. Pehchaan card requires basic information of citizens such as finger prints of both hands,
iris, blood group, spouse and children details, religion to which they belong, details of
diseases like AIDS, Cancer, government loan or any other liability.

PUBLIC INTREST LITIGATION

1. On 22nd January,2010 petitioner challenged this policy in high court of Nehli through a
Public Interest Litigation and contented that it violates right to life, right to privacy, right
to speech and expression and especially right to remain silent.
2. On 24th July,2014 during the pendency of PIL government made Pehchaan card
compulsory to avail benefits under social welfare schemes of government.
3. On 27th July,2014 High Court passed an interim order directing the government not to
make Pehchaan mandatory.

9
PETITIONER T-29

4. On 28th July,2014 government filled an application for the clarification of the interim
order and the high court permitted government to make Pehchaan mandatory for non-
benefit schemes, programmes and initiatives of the government.
5. On 11 August,2014 government enacted a law called Pehchaan Act, 2014 making
Pehchaan mandatory for all schemes and also provided statutory basis to National Unique
Identification Authority. The act contained a whole chapter on data protection and
penalties and punishments for data leakage.
6. Petitioner filed an application for including challenge to Pehchaan act, 2014 in his
petition and high court allowed it.
7. On 13th January,2015 government made Pehchaan mandatory for issuing PAN card,
Driving Licence, Passports, opening bank accounts and linking existing bank accounts
with Pehchaan cards.
8. Government fixed March,2016 as deadline for linking Pehchaan cards with bank
accounts and PAN and the Petitioner prayed for stay on the notification, which the court
refused.
9. Petitioner claimed that Pehchaan Act, 2014 is violative of right to privacy and that the
data collected by the government is not safe. He further contented that information
collected is intimate and violates right to life under Art. 21 of the constitution.
10. Respondent argued that there is no right to privacy provided by the constitution and
promised to bring a substantive law for protection of data.
11. High Court of Nelhi after hearing the matter in detail rejected the PIL and held that
Pehchaan Act, 2014 is constitutional and government can make mandatory the making of
Pehchaan card as it will eradicate the problem of duplicity of identities also justified the
collection of data by the private entities as government lacked resources, expertise and
staff.
Petitioner came to the Supreme Court of Mandia through Special Leave Petition and prayed for
quashing the judgment of Hon’ble High Court of Nelhi and to declare the Pehchaan Act, 2014
and previous policy of providing Pehchaan cards as violative of various provisions of the
constitution of Mandia.

10
PETITIONER T-29

STAEMENT OF ISSUES

ISSUE 1
WHETHER PEHCHAAN ACT, 2014 CAN BE HELD UNCONSTITUTIONAL OR NOT?

ISSUE 2
WHETHER PEHCHAAN CARD CAN BE MADE MANDATORY OR NOT?

ISSUE 3
WHETHER DATA PROTECTION LAWS ARE IN ACCORDANCE WITH REQUISITE
STANDARDS OR NOT?

11
PETITIONER T-29

SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER PEHCHAAN ACT, 2014 CAN BE HELD UNCONSTITUTIONAL

OR NOT?

 Right to Privacy is a fundamental right protected under Right to life and Personal liberty
i.e.Art. 21 of the constitution.
 Right to privacy is an internationally recognized right by United Nations and other
international conventions to which Mandia is a part.
 Pehchaan Act, 2014 by taking the personal and integral information of the citizen
infringes their right to privacy.
 The information collected under Pehchaan is very integral to one’s life.
 Every person has a right to protect their privacy and the government cannot force them to
give their personal information.
 As the Pehchaan Act, 2014 violates Right to privacy is thus unconstitutional under Art.
13(2).

ISSUE 2: WHETHER PEHCHAAN CARD CAN BE MADE MANDATORY OR NOT?

 The government has made Pehchaan card mandatory for benefit and non-benefit schemes
of the government.
 The Pehchaan card cannot be made mandatory as this will infringe citizen’s right to
remain silent protected under right to speech and expression. The citizens cannot be
forced to speak.
 Making Pehchaan card compulsory for passport also infringes citizen’s right to travel
abroad.
 The government has a duty to provide its citizen with subsidies and other schemes in
order to lift the living standards being a welfare state. The government cannot
discriminate while providing these schemes on the basis ofPehchaan card.

12
PETITIONER T-29

ISSUE 3: WHETHER DATA PROTECTION LAWS ARE IN ACCORDANCE WITH

REQUISITE STANDARDS OR NOT?

 The Data Protection laws of the country are not in accordance with the requisite
standards.
 The data protection laws of Mandia are weak as compared to international standards.
 In order to protect privacy of people the data protection laws need to be strengthened.
 Till the times laws are not made according to the need to the international standers the
government cannot ask citizens to give up their private and personal information.

13
PETITIONER T-29

ARGUMENTS ADVANCED

ISSUE 1: WHETHER PEHCHAAN ACT, 2014 CAN BE HELD UNCONSTITUTIONAL

OR NOT?

It is most humbly submitted that Pehchaan Act, 2014 is unconstitutional under Art.13(2) of the
constitution of Mandia as it violates various rights of the citizens such as Right to privacy
guaranteed under Art. 21 i.e. right to life and personal liberty and right to remain silent under
Art.19(1)(a) i.e. freedom of speech and expression of the Constitution of Mandia. Right to
Privacy means right to be left alone, right of a person to be free from unwanted publicity, right to
live without any interference by the public in the matters where the public is not concerned. 2
And the counsel will prove the above stated facts by following contentions:

1.RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT.

[1.1¶] It is contended before the Hon’ble court that Right to Privacy is a fundamental right under
Art.21 of the Constitution of Mandia i.e. Right to Life and Personal Liberty, which has been
declared by different judgments of this court itself and also recognized as fundamental right
internationally.As held by Justice Bhagwati that the expression ‘personal liberty’ in Art. 21 is of
widest amplitude and it covers a variety of rights which constitute the personal liberty of man
and some of them have raised to the status of distinct fundamental rights and given additional
protection under Art. 19.3 The Supreme Court held that right to privacy is part of “Right to Life
and Personal Liberty” enshrined under Art.21 of the Constitution4.

[1.2¶] Right to privacy is one of the major rights guaranteed by constitution and it cannot be
waived off. In differentjudgments, the same court has recognized the Right to Privacy as part of
Right to Life and Personal Liberty as contented above. While speaking of a “struggle between

2
Black’s law dictionary.
3
Maneka Gandhi v. U.O.I, AIR 1978, SC 597.
4
People’s Union for Civil Liberties v. U.O.I, AIR 1997 SC 568.

14
PETITIONER T-29

liberty and authority, Mill pointed that the tyranny of the majority could be reined by the
recognition of civil rights such as the individual right to privacy, free speech, assembly and
expression”5, It is to be noted that right to free speech, assembly and expression are actually
fundamental rights under Art. 19 of the constitution of Mandia and right to privacy is even ruled
as fundamental right by the apex court.

[1.3¶] Every human being has a right to live and die with dignity and infringement of privacy
infringes dignity as once said by justice S.A. Bobde, “If a man has to die with dignity, he has to
have some privacy.” Justice Bhagwati held that “we think that right to life includes the right to
live with human dignity”6. Human Dignity was construed by Constitution bench of Supreme
Court to be intrinsic to and inseparable from human existence. It cannot be taken away and every
human being has dignity by virtue of his existence7.

[1.4¶] About right to privacy being a fundamental right or not Justice J. Chelameswar says “In
a Republic founded on a written Constitution, it is difficult to accept there is no fundamental
right to privacy. There is a battery of judgments saying privacy is a fundamental right, we cannot
ignore them. We have to give serious thought to this question. A right may not necessarily
confine itself to one Article in the Constitution or on one amendment.”

[1.5¶] Right to privacy is included under right to personal liberty8. The principle that the right to
free expression under Art. 19(1)(a) includes the privacy of communications9.The right to privacy
is implicit in the right to life and liberty guaranteed to the citizens of this country by Art. 2110.
This proves the fact that even apex court recognizes right to privacy as a part of various
fundamental rights which makes it a ground for being recognized as fundamental right.

[1.6¶] While dealing with the case of rape the Apex court recognized the right to privacy and
ruled that “Sexual violence apart from being dehumanizing is an unlawful intrusion of the right

5
John Stuart Mill, On Liberty, Batoche Books (1859), at page 16.
6
Francis Coralie v. Union Territory of Delhi, AIR 1981, SC 746.
7
M. Nagaraj& Others v. U.O.I& Others,(2006) 8 SCC 212
8
Govind v. State of M.P AIR 1975 SC 1378.
9
Indian Express Newspapers(Bombay) Pvt. Ltd v. U.O.I AIR 1985 SCC 641.
10
R.Rajagopal v. State of Tamil Nadu, AIR 1994 SCC 632.

15
PETITIONER T-29

to privacy and sanctity. It offends her dignity11”. In another case Supreme Court ruled that
privacy right of the person is a fundamental right protected under the Constitution12.

[1.7¶] Right to privacy is an integral part of right to life. This is a cherished constitutional value,
and it is important that human beings be allowed domains of freedom that are free of public
scrutiny unless they act in an unlawful manner13. Right to privacy has been held to be a
fundamental right of the citizen being an integral part of Art.21 of the Constitution of India by
thisCourt. Illegitimate intrusion into privacy of a person is not permissible as right to privacy is
implicit in the right to life and liberty guaranteed under our Constitution14. This is clear from the
fact that the Supreme Court over the years held right to privacy as a fundamental right provided
under Art.21 of the Constitution.

[1.8¶]The recognition of privacy as a fundamental constitutesa value which is part of Mandia’s

commitment to a global human rights regime. Art. 51 of the Constitution, which forms part of
the Directive Principles, require the State to endeavor to “foster respect for international law and
treaty obligations in the dealings of organized peoples with one another”. Art.12 of the Universal
Declaration of Human Rights, recognizes the right to privacy: “Art.12: No one shall be subjected
to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon
his honour and reputation. Everyone has the right to the protection of the law against
suchinterference or attacks.”

Similarly, the International Covenant on Civil and Political Rights asadopted on 16 December
1979 and came into effect on 23 March 1976. Mandia ratified it on 11 December 1977. Art. 17
of the ICCPR provides thus:“The obligations imposed by this Art.require the State to adopt
legislative and other measures to give effect to the prohibition against such interferences and
attacks as well as to the protection of the right.”
The Protection of Human Rights Act, 1993 which has been enactedby Parliament refers to the
ICCPR as a human rights instrument. Section 2(1) (d) defines human rights:“human rights”

11
State of Karnataka v. Krishnappa AIR 2000 SCC 75.
12
Amar Singh v. U.O.I AIR 2011 SCC 69.
13
Ram Jethmalani v. U.O.I AIR 2011 SCC 1.
14
Ramlila Maidan Incident v. Home Secretary, U.O.I AIR 2012 SCC 1.

16
PETITIONER T-29

means the rights relating to life, liberty, equality and dignity of the individual guaranteed bythe
Constitution or embodied in the International Covenants and enforceable by courts in India.”
Section 2(1)(f) defines International Covenants: “International Covenants” means the
International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural rights adopted by the General Assembly of the United Nations on
the 16December,1966 [and such other Covenant or Convention adopted by the General
Assembly of the United Nations as the Central Government may, by notification, specify]
The ICCPR casts an obligation on states to respect, protect and fulfill its norms. The duty of a
State to respect mandates that it must not violate the right. The duty to protect mandates that
thegovernment must protect it against interference by private parties. In duty to fulfill postulates
that government must take stepstowards realization of a right. While elaborating the rights
underArt.17, general comment 16 specifically stipulates that: “there is universal recognition of
the fundamental importance, and enduring relevance, of the right to privacy and of the need to
ensure that it is safeguarded, in law and practice.”

There is no doubt that Right to privacy is an internationally recognized right and Mandia being
part of these international conventions has an obligation to guarantee right to privacy as
fundamental right.

[1.9¶] In the recent landmark judgment on Right to privacy the 9-judge bench comprising of
Chief Justice held that Right to Privacy is protected as an intrinsic part of the right to life and
personal liberty under Art.21 of the Constitution of India and as freedom guaranteed by part 3 of
the Constitution15.

[1.10¶] With reference from the above stated Judgments and with support from provisions of
domestic and International Statutes along with international conventions the counsel humbly
submits that Right to Privacy is a Fundamental Right protected under Art.21 of the Constitution
i.e. Right to life and Personal Liberty.

15
Justice K.S. Puttaswamy(Retd.) and Anr. V. U.O.I and Ors. AIR 2017 SC 494.

17
PETITIONER T-29

2. PEHCHAAN ACT, 2014 VIOLATES RIGHT TO PRIVACY OF THE PEOPLE BY

COLLECTING PERSONAL INFORMATION OF PEOPLE.

[2.1¶] It is most humbly submitted that Pehchaan Act obtains different kind of information from
a person such as finger prints of both the hands, scanning of iris of the eyes, blood group, spouse
and children details, their educational qualification, number of spouses, the religion to which
both spouse belong to, laws under which marriage is solemnized, details of life threatening
diseases like AIDS, Cancer and hepatitis-B, Permanent Infertility both in male and female and
criminal/civil cases pending in courts and government loan or any other liability on the citizen.
This is highly confidential information and the government has no right to obtain such
information.

[2.2¶] Information collected under Pehchaan Act is very intimate and integral to one’s
personality. Pehchaan includes collection of biometrics and its leakage and misuse cannot be
justified. The law says life and body is paramount and if the finger prints of an individual are
stolen, it might end his identity. Collection of biometrics is unjustified as it would be forcing a
person to give up his identity. An individual must be allowed to determine what information of
his can be allowed to be put out and this is closely tied to a person’s right to dignity. A citizen
has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood,
child-bearing and education among other matters16.Everyone's right to respect for his private and
family life, his home and his correspondence shall be recognized17.It must also be taken into
consideration that unlike the usual passwords the biometrics cannot be reset or reseeded.
Therefore, this would constitute an irreversible and immutable loss of privacy to individuals.

[2.3¶]Biometric information, specifically finger prints and iris scan are intimate parts of a
person’s body. They belong to the person, notthe State. According to John Locke, “Though the
Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his
ownPerson,” and Salmond reminds us that he speaks “of a man’s right to preserve his own
property i.e. his life, liberty and estate.” As Peter Benson notes in ‘Philosophy of Property
Law’,“The right of bodily integrity is, first of all, a right, i.e. it refers to the fact that each

16
R.Rajagopal v. State of Tamil Nadu, AIR 1994 SCC 632.
17
Malak Singh v. State of Punjab and Haryana, AIR 1981 SCC 420.

18
PETITIONER T-29

individual has the rightful exclusive possession and use of his or her own body as against
everyone else.”To support this Section 43A of the ITActrecognizes ‘biometric information’ to be
‘sensitive personal data or information’. In one of the cases the Dutch Council of State judged
that decentralize storage of fingerprints under The Dutch Passport Act is unlawful on account of
violation of Right to Privacy.18 Even the court of France ruled that French authorities violated the
applicant’s right to respect for his private life when they retained his finger prints in a
government data base.19

[2.4¶] Art. 12 of United Nations Charter of Human rights provides that no one shall be subjected
to arbitrary interference with his privacy, family nor to attack upon his owner and reputation.
Therefore, in accordance of the above provisions mentioned, there is an urgent need to stop this
act of obtaining biometric information of a person in name of Pehchaan card. The disclosure of
the contents of the private documents of its customers or copies of such private documents would
amount to a breach of confidentiality and would, therefore, be violative of privacy rights of its
customers.20 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.

[2.5¶] Pehchaan Card also collects details about life-threatening diseases such as AIDS, Cancer
and Hepatitis-B which are very private details of one’s life. It is contended that this Act of
government i.e. obtaining information of life threatening diseases of person is violative of
provisions of Right to Information Act and Indian Medical Council Regulations. Section 8(1)(j)
of Right to Information Act, 2005 provides that personal information of a person need not be
disclosed unless larger public interest justifies that, also as per the Indian Medical Council
Regulations, 2002 framed under provisions of Medical Council Act, 1956, the medical records of
a person are generally confidential.

18
Raad v. State 142 EU 121(2008).
19
MK v. France 211 Fra 321(2013).
20
District Registrar and Collector v. Canara Bank, AIR 2005 SC 186

19
PETITIONER T-29

The Supreme Court said that the regulations framed under Medical Council Act will have to be
read with Section 8(1)(j) of RTI Act, 2005.21 Thus, such medical information about one’s life
cannot be obtained. The sphere of privacy stretches at one end to those intimate matters to which
a reasonable restriction of privacy may attach. It expresses a right to be left alone.A broader
connotation which has emerged in academic literature of a comparatively recent origin is related
to the protection of one’s identity. Data protection relates closely with the later sphere. Data
such as medical information would be a category to which a reasonable expectation of privacy
attaches.

[2.6¶] Under Pehchaan Act a person is asked to share his/her intimate information with total
stranger (whom one isn’t going to encounter again), of such a kind that he/she would not share it
with their relatives. How are we supposed to share it with a stranger?Right to Privacy not only
includes our secured passwords on different social networking sites but it includes our smallest
personal information also and the Pehchaan Act through itsPehchaan card is directly infringing
an individual’s right to keep his personal information private.

[2.7¶] National Unique Identification Authority has allowed many private small organizations to
get the biometrics information due to which this private information of an individual can be used
by any organization or person for any purpose. Providing our personal biometric information to
non-constitutional authorities for making Pehchaan cards to avoid the future problems of
identification upto national level is same as providing key of our homes to the police, when there
has been a theft is some locality.

[2.8¶] In one of the judgment, Justice Chelameshwar underlined, “All the liberal democracies
believe that the state should not have unqualified authority to intrude into certain aspects of
human life and that the authority should be limited by parameters constitutionally fixed.
Fundamental Rights are the only constitutional firewall to prevent state’s interference with that
core freedom constituting liberty of a human being the Right to Privacy is certainly one of the
core freedoms.”22

21
Mr X v. Hospital Z AIR 1998 SC 125.
22
Justice K.S. Puttaswamy (Retd.) and Anr. V. U.O.I and Ors. AIR 2017 SC 494.

20
PETITIONER T-29

Noting that “Privacy has both positive and negative content” in the same judgment, The Chief
Justice Khehar, Justice Agrawal, Justice Chandrachud and Justice Nazeer said, “The negative
content restrains the state from committing an intrusion upon the life and personal liability of the
citizen. Its positive content imposes certain obligation on the state to take all necessary measures
to protect the privacy of individual.

From the above observations made by Chief Justice and three other judges it is clear that it is the
duty of the state to take necessary measures to protect the privacy of the individuals.
Whereas,here the state is interfering with the privacy of the individuals by asking them of their
sensitive, personal information and biometric information.

[2.9¶]An individual has a lot of privacy and among all his body are the most private things that
belong to him. 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 to Privacy envisaged in Right to Life and Personal Liberty under Art.21 forming the heart
and soul of fundamental rights.Samuel Warren and Louis Brandeis in 1890 expressed the belief
that an individual should control the degree and type of private –personal information i.e. made
public “The common law secures to each individual the right of determining, ordinarily, to what
extent his thoughts, sentiments, and emotions shall be communicated to others. It is immaterial
whether it is by word or by signs, in painting, by sculpture, or in music. In every such case, the
individual is entitled to decide whether that which is his shall be given to the public.” This
formulation of the right to privacy has particular relevance in today’s information and digital
age. Therefore,Pehchaan Act has no right to take personal and private information of people.The
fingerprints and iris are one’s own. As far as it is concerned, the state cannot take away my body.
Applying biometric collection to a narrow-limited situation – such as passports, or identification
of prisoners – was one thing but biometrics could not be collected wholesale and stored in a
central depository and used for routine activities like buying a car, selling property or opening a
savings account. All of these would eventually be contingent on the use of
fingerprints.Therefore,the PehchaanAct is not only infringing the Right to Privacy of an
individual but also becoming a threat to nation’s security as these Pehchaan cards are not just for
civilians but also for people in defense forces and securityagencies where biometrics is not just
affecting the privacy but will work as a loop hole in national security.

21
PETITIONER T-29

3.PEHCHAAN ACT,2014 IS VIOLATIVE OF ART.13(2) OF THE CONSTITUTION OF

MANDIA.:

[3.1¶] Art. 13 (2) of constitution states,“the State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in contravention of this clause shall,
to the extent of the contravention, be void”. By this part the Article refers to Part III of the
constitution which contains fundamental rights, thereby meaning that government cannot make
any law which violates the fundamental rights of the citizens.

[3.2¶] As contented above in contention 1 that Right to Privacy is a Fundamental Right protected
under Art.21 of the Constitution of Mandia and its violation by Pehchaan (as contented in
Contention 2) makes it unconstitutional under Art.13(2) of the constitution of Mandia. The
Supreme Court itself held that the fundamental rights enshrined in Part III of the constitution, are
inherent and cannot be extinguished by any constitutional or statutory provision.Any law that
abrogates or abridges such rights would be violative of basic structure doctrine23.

[3.3¶] Art.13(2) clearly prohibit the making of any law by the state which takes away or abridges
rights, conferred by part III of the constitution. In the event of such a law made the same shall be
void to the extent of contravention24 and Pehchaan Act, 2014 being based entirely on collection
of intimate and personal information which violates right to privacy (as contented in contention
2) as a whole is violative of Art.13(2).

In the light of above contentions raised, the Counsel humbly submits that Right to Privacy is a
fundamental right enshrined under Art.21 of the Constitution but this right is constantly violated
by the provisions of Pehchaan Act, 2014 which makes us question the credibility of Pehchaan
Act, 2014 and say that Pehchaan Act, 2014 is unconstitutional under Art. 13(2) and should be
declared void.

23
West Bengal v. Committee for Protection of Democratic Rights, West Bengal AIR 2010 SC 1476.
24
State of Punjab v. Dalbir Singh AIR 2012 SC 1040.

22
PETITIONER T-29

ISSUE-2 WHETHER PEHCHAAN CARD CAN BE MADE MANDATORY OR NOT?

The counsel most humbly submits that the Government of Mandia has decided to make
Pehchaan card mandatory for all purposes like PAN, Driving License, Passport, and Bank
Account. The act is silent regarding the consent of person giving his biometrics. The counsel
here pleads that the Pehchaan Card cannot be made mandatory as it will infringe basic rights
given to the citizens of Mandia. The counsel seeks to prove that by making Pehchaan card
mandatory the rights of citizens are violated with the help of following contentions:

1. PEHCHAAN ACT, 2014 VIOLATES RIGHT OF FREEDOM OF SPEECH AND

EXPRESSION ESPECIALLY RIGHT TO REMAIN SILENT.
[1.1¶]The Act of making Pehchaan card is violative of Right toFreedom of Speech and
Expression under Art.19(1)as it violates Right to remain silent which is considered as the part
and parcel of right of freedom and speech.Making Pehchaan mandatory is just like coercing a
person to speak to share his personal details.Data Protection is essential to protect a citizen’s
right to participation in the political environment. When a citizen knows he is being watched, he
might not dissent. The way government is trying to make it mandatory, a person can be tracked
and he is under electronic surveillance throughout his life.

[1.2¶]The Supreme Court itself ruled that forcing a citizen to sing the national anthem is
violative of both freedom of speech and expression under Art. 19(1)(a)25 as it would amount to
infringe his right to remain silent. The Pehchaan Act in same manner by forcing people to give
their information infringes their right to remain silent as it forces them to speak. The right of
freedom of speech and expression is internationally recognized right and it can be traced out
from the first amendment of the American constitution which specially provides that -“Congress
shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances”. Supreme Court also
ruled that freedom of expression includes freedom not to express.26 This clearly brings us down
to the fact that every citizen holds right to remain silent and then it is the right to individual that

25
Bijoy Emmanuel v. State of Kerala, AIR 1987 SCC 748.
26
National Bank of Canada v. R.C.U,[1984] 1 SCR 269

23
PETITIONER T-29

whether he wants to give the information or not. The individual cannot be forced to give his
private information merely on the fact that the government wants it.

[1.3¶] The state cannot hold an individual citizen hostage,by compelling them to part with
something that does not belong to the state. 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. This violates Art.19(1)(a) and is
not protected under Art.19(2).

[1.4¶] 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 personal information. The framework of Pehchaan Act and Pehchaan
program was founded on voluntary enrolment. This was the foundational premise of the
programme. According to the state, “free informed consent” was the essence of Pehchaan. The
state cannot alter this basic premise based on which individuals were asked to enroll.

[1.5¶] The counsel therefore pleads that the act of government of making Pehchaan mandatory is
violative of basic fundamental rights which the constitution grants. No citizen can be forced to
give up his/her right just because the government needs to maintain a data.

2. THE PROVISION OF MAKING PEHCHAAN MANDATORY VIOLATES RIGHT

TO TRAVEL ABROAD.
[2.1¶] It is most humbly submitted that the provision of making Pehchaan mandatory
forPehchaan Act, 2014 violates the right to travel abroad. Pehchaan card under Pehchaan Act,
2014 is made mandatory for the purpose obtaining passports. Which means that a person who
does not possess a Pehchaan card cannot have a passport which is a basic and most important
requirement to travel abroad. The Supreme Court extended the scope of Art.21 and held that
“right to travel abroad” was part of a person’s ‘personal liberty’ within the meaning of Art.21 of

24
PETITIONER T-29

the constitution27.In this case government ordered the petitioner to surrender his passport and
court held that government cannot deny him a passport in exercise of its executive power.
Similarly, the Government cannot make Pehchaan mandatory for passports as it will deprive the
citizen from exercising their right to travel abroad.It was held by the Supreme Court that
expression "personal liberty" in Art.21takes in the right of locomotion and travel abroad and
under Art.21 no person can be deprived of his right to go abroad28.

[2.2¶] Right to travel abroad is an internationally recognized right.Covenant on Civil and

Political Rights, Part III,Art.12 provides,

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his resistance.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (order public), public
health or morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

Even citizens right to travel is guaranteed by Section 6, Art.3 of the 1987 Constitution of
Philippines, Section-6, “The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the
right to travel be impaired except in the interest of national security, public safety, or public
health, as may be provided by law”.

[2.3¶] In the light of the above-mentioned precedents and international provisions the counsel
humbly submits that Right to travel abroad is a Fundamental right protected under Art. 21 of the
Constitution and no law can be made which deprives the citizen of this right; hence Pehchaan
should not be made mandatory.

27
Satwant Singh v. Assistant Passport Officer, New Delhi. AIR 1967 SC 1836
28
Maneka Gandhi v. U.O.I, AIR 1978 SC 597.

25
PETITIONER T-29

ISSUE 3: WHETHER DATA PROTECTION LAWS ARE IN ACCORDANCE WITH

REQUISITE STANDARDS OR NOT?

[3.1¶] It is humbly submitted by the counsel that Privacy also includes data protection in its
ambit. What government has done is asked for all the personal information of people like age,
sex, marital status, iris scan, health related aspects like AIDS etc.by making the Pehchaan card
mandatory for the people. All this information has been stored in a centralized database but the
data protection laws are of not those standards that it requires. Moreover, when it comes to
international standards the Data protection laws are quite weak.
[3.2¶] In the name of Data Protection laws we have only one statute i.e. IT Act, 2000 and some
guidelines issued by RBI and TRAI. Data protection is interlinked with right to privacy and for
protection of citizens right to privacy a country needs strong Data Protection Laws.
[3.3¶] The IT Act, 2000 is not data or privacy protection legislation per se. It does not lay down
any specific data protection or privacy principles. The IT Act, 2000 is a generic legislation,
which articulates on range of themes, like digital signatures, public key infrastructure, e-
governance, cyber contraventions, cyber offences and confidentiality and privacy. It suffers from
a one Act syndrome. In fact, the IT Act, 2000 deals with the issue of data protection and privacy
in a piecemeal fashion. There is no an actual legal framework in the form of Data Protection
Authority, data quality and proportionality, data transparency etc. which properly addresses and
covers data protection issues. Even if the new proposed amendments to the IT Act, 2000 were
adopted, Mandia would still lack a real legal framework for data protection and privacy.

[3.4¶]Both IT Act and Pehchaan Act imposes a penalty for default however the penalty imposed
is very less as compared to importance of the information. The penalty is supposed to deter any
unauthorized however; this penalty will have little or no deterrence. On the international
front,several countries have enacted Data Protection laws such as Canada, U.K and Australia.

[3.5¶] On comparing the law of Mandia with that of developed countries like UK, we find that
UK has its own Data Protection Act, 1988.It is basically instituted for providing protection to
personal data in UK.According to this act the, the person or organization which stores personal
data, must register with the govt. commissioner who has been appointed to oversee the act. The
act puts restriction on the collection of data.Personal data can be obtained only for lawful

26
PETITIONER T-29

purpose and shall not be further processed in any manner incompatible with the purpose.
Personal data shall be relevant and adequate.

[3.6¶] US follow the sect oral approach that consists of mixed legislation and regulations and
self-regulations also. Data is grouped in several classes on the basis of their utility in US. Hence
a different law structure is followed for each class of data. While the provision in the IT Act
deals with extraction of data, destroying the data etc. which means that companies don’t get
protection of data which forces them to lead towards separate private contracts to keep their data
secured.

[3.7¶]Any part of legislation is not sufficient and hencea comprehensive and complete data
protectionact is needed in Mandia as IT Act, 2000 is nota data or privacy related act as it does
not have all the principles of the data protection and privacy. The fact is that the IT Act, 2000
deals with the issue of the Data Protection and privacy in a partial way. There is a lack of actual
framework in the IT Act, 2000 wherein the Data Protection Authority and quality and
transparency of the data are considered. Even if the IT Act, 2000 adopts some new amendments
still there would be a lack of the actual framework for data protection and privacy that should
match the EU directive, OECD Guidelines or the Safe Harbour Principles.

[3.8¶]On the importance of informational privacy, it was held:“This notion of privacy derives
from the assumption that all information about a person is in a fundamental way his own, for him
to communicate or retain for himself as he sees fit.In modern society, especially, retention of
information about oneself is extremely important. We may, for one reason or another, wish or be
compelled to reveal such information, but situations abound where the reasonable expectations
of the individual that the information shall remain confidential to the persons to whom it was
given, and restricted to the purposes for which itwas divulged, must be protected.”29

[3.9¶] Privacy concern is the most important and moreover for the Pehchaan card as some
important information is given and there is outmost priority for data protection.In case ofJustice
K.S. Puttaswamy(Retd.) And Anr. v U.O.I And Ors.30,it was held that “Informational privacy
is a facet of the right to privacy. The dangers to privacy in an age of information can originate

29
Her Majesty, The Queen v Brandon Roy Dyment,[1988] 2 EU 417
30
Justice K.S. Puttaswamy (Retd.) And Anr. v U.O.I And Ors.AIR 2017 SC 494

27
PETITIONER T-29

not only from the state but from non-state actors as well. We commend to the Union Government
the need to examine and put into place a robust regime for data protection.”

[3.10¶] So, data protection laws are a must for the protection of Right to Privacy of the citizens
of the country more so when the database is centralized unlike the NATGRID where the data
isdecentralized into a number of small databases. This can also be threat to national security of
citizens as single database can be attacked in the time of war or external aggression in the
country. Thus, it adversely affects the national security and integrity of citizens. It is basically a
threat to life of people. So, data protection must be made stronger for the safety and security of
the country. Data once leaked to the outsiders may also allow the companies to force the people
to sell the products. Targeting the Pehchaandatabase would serve two purposes: First, attacking a
highly centralized national database – thereby limiting the access of Indian citizens to essential
services – forces the Indian government to reconsider its military options against an adversary.
This could be done attack on Pehchaan servers, preventing legitimate devices or applications
from authenticating transactions.

[3.11¶] It is most humbly submitted that the nation lacks in Data Protection laws but the
government is still forcing its people to give up their information. The Citizen cannot be asked to
give their integral information till the laws are not able to handle its breach. First the government
has to work towards making the Data Protection laws and can thus ask people to give up their
information and that to by their choice. The Data Protection laws are so weak that Pehchaan Act
instead of doing any good to the citizen will prove as predicament on the part of citizens.

28
PETITIONER T-29

PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, the
counsel for the petitioner most humbly and respectfully pray before the Hon’ble Supreme Court
of Mandia that it may be pleased to adjudge and declare-
1. That the Right to Privacy is a fundamental right under Art.21 of the Constitution of
Mandia. The Pehchaan Act, 2014 is violative of Right to Privacy.
2. Thatthe Pehchaan card cannot be made mandatory as it is violative of Right to remain
silent and Right to travel abroad.
3. That the Pehchaan Act, 2014 is unconstitutional under Art.13(2) as it is violative of
fundamental rights.
Pass any other order, writ or direction as this hon’ble court deems fit and proper, in the interest
of Justice, Equity and Good Conscience.
And for this act of kindness the petitioner shall as in duty bound ever pay.

-Sd-

Counsel on behalf of the Petitioners

29