Petitioner Memo

TEAM CODE -42 [A]
IN THE HON’BLE SUPREME COURT OF MANDIA

(CIVIL APPELATE JURISDICTION)
SPECIAL LEAVE PETITION NO. ..... OF 2017
IN THE MATTER OF:
SATISH DHANKAR…………...………………………………PETITIONER
VERSUS
UNION OF MANDIA…..…………………………………….RESPONDENT
(UNDER ARTICLE 136 OF THE CONSTITUTION OF MANDIA)
Most Respectfully Submitted before the Hon’ble Chief Justice and Other
Judges of Supreme Court of Judicature at Mandia.
MEMORIAL ON BEHALF OF THE PETITIONER
[Type text] MEMORIAL ON BEHALF OF PETITIONER 1

4TH JUSTICE MURTAZA HUSSAIN MOOT COURT COMPETITION
TABLE OF CONTENTS
1) THE LIST OF ABBREVIATIONS………………………………………...3.

2) THE INDEX OF AUTHORITIES ………………………………………...4.
3) THE STATEMENT OF JURISDICTION………………………………...7.
4) THE STATEMENT OF FACTS…………………………………………...8.
5) THE STATEMENT OF ISSUES…………………………………………..10.
6) THE SUMMARY OF ARGUMENTS……………………………………..11.
7) THE ARGUMENTS ADVANCED………………………………………...13.
i) WHETHER THE SPECIAL LEAVE PETITION FILED IN THE PRESENT CASE
IS MAINTAINABLE BEFORE THE HON’BLE COURT OF MANDIA?
ii) WHETHER PEHCHAAN PROJECT IS VIOLATING THE FUNDAMENTAL
RIGHT OF PRIVACY?
iii) WHETHER PEHCHAAN IS AN ESSENTIAL REPOSITERY FOR THE PEOPLE?
8) THE PRAYER……………………………………………………………….28.
2
LIST OF ABBREVIATION S
AIR All India Reporter,
PAN Permanent Account Number
H.C High Court
PDS Public Distribution System
GOVT. Government
NUIA National Unique Identification Authority
I.T Information Technology
PIL Public Interest Litigation
HON'BLE Honorable
UP Uttar Pradesh
SC Supreme Court
ORS Others
SCC Supreme Court Cases
HCD High Court Decision
SEC. Section
U.O.I. Union of India
SCD Supreme Court Decision
SCR Supreme Court Reporter
SLP Supreme Leave Petition
V. Versus
3
INDEX OF AUTHORITIES
CASES
▪ C.C.E v. Standard Motor Products, AIR 1989 SC 1298
▪ Haryana State Industrial Development v. M/S Cork Manufacturing Co., AIR 2008 SC
56
▪ Pawan Kumar v. State of Haryana, 2003 11 SCC 241
▪ Tirupati Balaji Development Ltd. v. State of Bihar, AIR 2004 SC 2357
▪ Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666
▪ N.Suryakala v. A.Mohandoss ,(2007) 9 SCC 196
▪ State Of Punab v. Rafiq Masi, (2014) 8 SCC 883
▪ Penu Bala Krishna Iyer And Others v. Sri Arya M.Ramaswami Iyer And Others., AIR
1965 SC 195
▪ Jamshed Hormiji v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815
▪ Durga Shankar v. Raghu Raj ,1954 AIR 520, 1955 SCR 287
▪ I.R Coelho v. State of Tamil Nadu, (2007) 2 SC 41
▪ State of Bombay v. Bhanji Munji, AIR 1955 SC 41
▪ Rustom Carvasi Cooper v. Union of India, (1970) 1 SCC 248
▪ R. Rajogpal v. State of Tamil Nadu, (1994) 6 SCC 632
▪ Peoples Union for Civil Liberties v. Union of India, (1997) 1 SCC 301
▪ Abington School District v. Scemp,374 US 203 (AT PP.226)
▪ Fisher v. United States, 425 US 391 (AT PP.416)
▪ The Queen v. Brandon Roy Dyment, [1988] 2 SCR 417 (1988)
▪ N.M.& Others v. Smith & Others, 2007(5) SA 250 (CC) 2007
▪ Justice K.S.Puttaswamy v. Union of India & Others, (2017)
▪ Keshwananda Bharti v. State of Kerala, AIR 1973 SC 1461
▪ Lata Singh v. State of U.P, (2006)
▪ Bhagwan Dass v. Delhi, (2011)
▪ S.Marper v. United Kingdom , [2008] EHCR 1581 (2008)
4
BOOKS REFERRED
(1). Pandey J.N., Constitutional Law of India, Ed. 52nd (2015)., Central Law Agency.
(2) Jain M.P., Indian Constitutional law, Ed. 6th (2012), Lexis Nexis Butterworths Wadhwa,
Nagpur.
(3). Shukla V.N., Constitution of India, Ed.11th, (2008), Eastern Book Company.
STATUTORY COMPILATION
(1) Aadhaar Act, 2016
(2) The Constitution of India,1950
WEBSITES REFERENCE
▪ www.indiakanoon.org
▪ www.indlawinfo.org
▪ www.legalserviceIndia.com
▪ www.legalsutra.org
▪ www.lexisnexisacademic.com
▪ www.macmillandictionary.com
▪ www.manupatra.com
5
▪ www.scconline.com
▪ www.scdecision.in
▪ www.supremeCourtcases.com
▪ www.vakilno1.com
6
THE STATEMENT OF JURISDICTION
It is humbly submitted before the Honorable Supreme Court of Mandia that the petitioner has
approached this Apex Court under the Article 1361 of the Constitution of Mandia.
1
“Special Leave to appeal by the Supreme Court.
1. Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant special leave
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 the clause (1) shall apply to any judgment, determination, sentence or order passed or made
by any court or tribunal constituted by or under any law relating to the armed forces.”
7
THE STATEMENT OF FACTS
BACKGROUND
1. Republic of Mandia after getting independence on 15th sept, 1946 enacted its
constitution which provided for a democratic parliamentary form of govt. with a federal
structure. It has its autonomous election commission and its Higher judiciary has power of
judicial review of laws & actions of govt. Mandia is a union of states and is a secular state.
Mandian govt. formulated a policy named “Pehchaan” for its citizens by providing those
Pehchaan cards for identifying citizens for various benefits and saving duplicity of identities
for detecting illegal immigrants & to check leakage in govt. scheme by following “Zero
Tolerance for Corruption”.
2. The policy had certain objectives like checking duplicity of election cards and initiating
tax collection through linking PAN and Bank accounts. Pehchaan cards would be provided
for free, and linkage through network of cyber cells. National Unique Identification
Authority under the chairmanship of Mr. Rajeev Khanna from 30th Nov. 2009 started making
Pehchaan cards under the authority of govt. This task was further delegated to private entities,
who were in progress of taking basic details of citizens like finger prints, iris of eye, blood
group, spouse and children details, educational qualification, number of spouses, the religion
to which both spouses belong to, laws under which marriage is solemnized and life-threatening
diseases like AIDS, CANCER& HEPATITIS-B, permanent infertility both in male and female,
criminal/civil cases pending, govt. loan or any other liability.
JUDICIAL PROCEEDINGS
3. Petitioner, Mr. Satish Dhankar challenged the policy of Pehchaan card in Nelhi High
Court on 22 Jan. 2016 by filing PIL on grounds of violation of Right to Privacy, Right to
Speech and Expression and lacking any law/statutory support
4. On 24th July 2014, during the pendency of PIL Mandian govt. made Pehchaan
compulsory under various social welfare schemes during pendency of PIL.
5. On 27th July 2014 High Court passed interim order directing the govt. not to make
Pehchaan cards mandatory afterwards the petitioner contended that govt. cannot make
Pehchaan cards for different benefit and non-benefit schemes during pendency of PIL.
8
6. The High Court permitted govt. to make Pehchaan cards mandatory for non-benefit
schemes after govt. filed a application on 28th july,2014 for use of Pehchaan cards for non-
benefit schemes like PAN, Mobile Connections and Gas Connections etc.
7. On 11th August, 2014 the govt. of Mandia enacted a law called the Pehchaan Act, 2014
. Petition filed application in High Court with original prayers to quash Pehchaan Project.
8. On 13th Jan,2015 the govt. made Pehchaan card mandatory for every scheme & program
like PAN, Driving License, Opening Bank Account through notification.
9. Fixation of march,2016 as deadline for linking Pehchaan cards with bank accounts and
pan cards. Petitioner’s pray to stay on notification was rejected by High Court as he contended
Pehchaan Act,2014 violation of right to privacy, data could be leaked by private entities.
Petitioner also stated about leakage of 13 crores data of citizens through Pehchaan & claimed
hacking of data by IIT graduate. He contended that data may be used by majoritarian govt.
or dictator to disturb communal harmony and diversity of the country. He also contended
that it was against the right to life under Article 21.
10. Respondent argued in High Court about ambit of right to privacy according provision
given in Constitution, and also assented to bring substantive law as soon as possible to
support Pehchaan project more on statutory basis.
11. After following the whole procedure of case hearing. The High Court rejected PIL and
declared Pehchaan Act,2014 constitutional to protect the State from terrorism and security
related problems from its hostile neighbors.
12. High Court also justified it by saying that it would provide appropriate benefits to
citizens by eradicating problem of duplicity of identities and reviewing Dual Election Cards.
13. The Petitioner went to Supreme Court of Mandia to file SLP under the provision of
Constitution against the judgment of High Court of Nelhi.
9
STATEMENT OF ISSUES
FOLLOWING ARE THE QUESTIONS BEFORE THE HON’BLE SUPREME COURT:
ON MAINTAINABILITY
ISSUE-1: Whether the special leave petition filed in the present case is maintainable before the
Honorable Supreme Court of Mandia?
ON MERITS
ISSUE-2: Whether Pehchaan project is violating the fundamental right of privacy?
ISSUE-3: Whether Pehchaan project is an essential repository for the welfare of people?
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SUMMARY OF ARGUMENTS
WHETHER THE SPECIAL LEAVE PETITION FILED IN THE PRESENT CASE IS

MAINTAINABLE BEFORE THE HONORABLE SUPREME COURT OF MANDIA
It is most respectfully submitted before the Honorable Supreme Court of Mandia that the
instant petition is maintainable as Special Leave is to be granted because substantial
injustice has been done and exceptional or special circumstances exist in the case. In the
present case there is existence of extra ordinary situation which is the reason of miscarriage
of justice.
It is contended by the petitioner that no substantial law is involved from the side of
respondent in the present case and the interference is based on pure question of fact which
is entitled to be maintained. This court had laid down the test which says if the general
principles to be applied in determining the question of those principles the question
would be a substantial question of law.
In the present case the petitioner has been successful to show exceptional and special
circumstances exist, therefore he is able to prove locus standi of his petition.
WHETHER PEHCHAAN PROJECT IS VIOLATING THE FUNDAMENTAL RIGHT

TO PRIVACY
Right to Privacy falls under Article 21 i.e. Right to Life of the constitution. On the face of it
may be seen that both right to privacy and Pehchaan are interlinked to each other but right to
privacy has its constitutionality whereas Pehchaan doesn’t has any type of constitutional status.
Therefore, it may be concluded that the government cannot violate right to privacy of citizens
by making Pehchaan mandatory. As right to privacy is not binded by Pehchaan and citizens are
not obliged to make which are completely voluntary in nature. But introduction of Pehchaan
with obligation directly violates the part basic structure of the constitution i.e. fundamental
right. Also, while adherence to principles equality and fraternity the government is not
authorized ask citizens their information which is quite pivotal and covert in nature basically
medical history, there is great paradox from the side of the government related to this matter.
11
WHETHER PEHCHAAN IS AN ESSENTIAL REPOSITORY FOR THE WELFARE

THE PEOPLE
Pehchaan policy doesn’t has any constitutional backing by not adherence to principles of
equality, fraternity and liberty given in preamble of the constitution of Mandia which was
declared as the part of the basic structure of the constitution and was declared non-amendable.
Through Pehchaan the govt. would not become more transparent and accountable towards
citizens rather it is instilling binding policy on citizens for fulfillment of its apparent objectives.
Pehchaan would not alleviate problems like duplicity of identities, corruption in PDS and other
welfare schemes rather it is leaking data constantly with no security backing. Rather the criteria
of government of making Pehchaan through communal profiling is quite vague in nature.
12
ARGUMENTS ADVANCED
ON MAINTAINABILITY
[ISSUE 1] WHETHER THE SPECIAL LEAVE PETITION FILED IN THE PRESENT
CASE IS MAINTAINABLE BEFORE THE HONORABLE SUPREME COURT OF
MANDIA
It is humbly submitted, that the SLP filed by the Petitioner against the judgment of Hon'ble
High Court of Mandia is maintainable under Article 136 of the Constitution. It is contended
that the jurisdiction of SC under Article 136 can always be invoked when a question of law of
general public importance arises2.
1.1. WHETHER THE PETITIONER HAS LOCUS STANDI IN THE PRESENT
CASE
The jurisdiction conferred under Article 136 on the SC is a corrective one and not a restrictive
one.3 A duty is enjoined upon the SC to exercise its power by setting right the violation of
legal procedure in the judgments is well-settled that this violation must not be allowed to be
perpetrated and failure by the SC to interfere with the same would amount to allowing the
illegality to be perpetuated.4
In Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar,5 this Court observed about Article
136 that "It is an extraordinary jurisdiction vested by the Constitution in the Supreme Court
with implicit trust and faith. Article 136 vests a vast discretion in the Supreme Court meant to
be exercised on the considerations of justice, call of duty and eradicating injustice”.
In the case of Narpat Singh v. Jaipur Development Authority,6 the Court held that, “the
exercise of jurisdiction conferred by Article 136 on the Supreme Court is discretionary; it only
confers a discretionary power of widest amplitude on the Supreme Court to be exercised for
satisfying the demands of justice.”
Also, in the case of N. Suriyakala v. A. Mohandoss,7 and in case of State of Punjab v. Rafiq
Masi,8 the Court held that the discretionary power vested in SC under Article 136, should be
2
C.C E a v. Standard Motor Products, AIR 1989 SC 1298.
3
Haryana State Industrial Development Corporation v. M/s Cork Manufacturing Co., AIR 2008 SC 56.
4
Pawan Kumar v. State of Haryana, (2003) 11 SCC 241.
5
AIR 2004 SC 2351.
6
(2002) 4 SCC 666.
7
(2007) 9 SCC 196.
8
(2014) 8 SCC 883.
13
exercised when there is an exceptional case or the case involves a substantial question of law
of general public importance.
Article 136 is the residuary power of SC to do justice where the Court is satisfied that there
is injustice.9 In any case, special leave would be granted from a second Petitioner decision
only where the judgment raises issues of law of general public importance.10
In the case of Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai,11 the Court
held that “The discretionary power of the Supreme Court is plenary in the sense that there
are no words in Article 136 itself qualifying that power. The very conferment of the
discretionary power defies any attempt at exhaustive definition of such power. The power is
permitted to be invoked not in a routine fashion but in very exceptional circumstances as
when a question of law of general public importance arises or a decision sought to be
impugned before the Supreme Court shocks the conscience. This overriding and exceptional
power has been vested in the Supreme Court to be exercised sparingly and only in
furtherance of the cause of justice in the Supreme Court in exceptional cases only when
special circumstances are shown to exist."
In the case of Durga Shankar v. Raghu Raj12 this court has held that “The powers given by
Article 136 of Constitution. However, are in the Nature of special or residuary powers which
are exercisable outside the purview of ordinary law, in case where the needs of justice
demand interference by the Supreme Court of the land. The article itself is worded in the
widest terms possible.”
This power of Supreme Court has been held to be:
1. Plenary.
2. Limitless.
3. Adjunctive and
4. “Unassailable on the grounds of unconstitutionally”
With reference to present case there are multifarious and staunch rationale which are
evident enough to show the maintainability of the petition filed.
The government in the present case oriented Pehchaan project with immediate objective
of first detecting its citizens, dispatching illegal immigrants and protecting citizens from
9
C.C.E v. Standard Motor Products, AIR 1989 SC 1298.
10
Penu Bala krishna Iyer And Ors v. Sri Ariya M. Ramaswami Iyer And Ors, AIR 1965 SC 195.
11
AIR 2004 SC 1815.
12
1954 AIR 520, 1955 SCR 287.
14
its hostile neighbors known for harboring many terrorist organizations, but it turned out a
mere hollow vision with no reasonable basis, at present the govt has failed on each
parameter to take a step forward for the implementation of its dream objective.
In the present case, the government constituted National Unique Identification Authority,
which started the work of making Pehchaan cards and assigned the task to private entities,
who themselves outsourced this work to private vendors. We understand that the
government and the citizens have a relationship of trust whose foundations lay deep to the
social contract theory given by Hobbes, so they may feel obliged to share their information
to the government directly but sharing the details to a private vendor, who is third in line
from the government doesn’t ring the sound jingles. Also, the justification provided by the
High court that the government is not having adequate resources and staff is quite vague
as it is the question of the data of 1.25 billion people whose data if leaked can compromise
the security of the country. For the matter of fact, when the government was not having
the appropriate resources and machinery than why thousands of crores of taxpayers’
money was invested on such a project. Also, Honorable High Court in its judgement
pitched for making Pehchaan cards mandatory but the section 7 of Pehchaan act13 itself
implies that making of Pehchaan wholly depends upon the discretion of the citizens i.e. it
is voluntary in nature. Then how could the High Court justify government’s decision of
making Pehchaan mandatory. This clearly shows miscarriage of justice on the part of high
court.
The government was quite confident from its side to be able to set up as a covert reservoir
of Pehchaan database but this plan of the government also vanished in thin air. There is a
great lapse on the part of government to ensure the security and safety of the data of 1.25
billion citizens, and the conditions of security is so worse that even an IIT graduate can
hack the database for his online payment application. Therefore, on the face of it could be
seen that there is grave lapse in security of data which arose due to paucity of strong tech-
based data protection system which was affirmed by government before collection of data
13
The Central Government or, as the case may be, the State Government may, for the
purpose of establishing identity of an individual as a condition for receipt of a subsidy,
benefit or service for which the expenditure is incurred from, or the receipt therefrom forms
part of, the Consolidated Fund of India, require that such individual undergo authentication,
or furnish proof of possession of Aadhaar number or in the case of an individual to whom
no Aadhaar number has been assigned, such individual makes an application for enrolment:
Provided that if an Aadhaar number is not assigned to an individual, the individual
shall be offered alternate and viable means of identification for delivery of the subsidy,
benefit or service.
15
through Pehchaan. The Honorable high court in its judgement didn’t give any justification
regarding the constant leakage of data from the government database. This is the question
of the data of the 2nd largest country by population and this grave lapse in security affects
the conscience of general public at large and hence becomes a matter of general public
importance. Also, when an 11 judges bench is hearing the issue, it itself shows that the
matter deals with the people at large. We also have evidence of the leak of 13 crore data14
of citizens from the Pehchaan database, which makes up 10% of Mandian constitution.
Also, a WikiLeaks report15 said that the equipment imported by the government for
scanning iris and fingerprints is bugged by CIA which can send the security of the country
in jeopardy. This shows that extraordinary and exceptional circumstances in the present
case and we are concerned about the same.
It becomes clear from the aforesaid case that Special Leave Petition will be
maintainable under Article 136 when there is an exceptional case or when substantial
injustice has been done. Thus, it can be inferred from plethora of cases that when the
question of law of general public importance arises or when there is an exceptional case or
substantial injustice has been done, the jurisdiction of SC can be invoked by filing SLP.
Hence the petitioner has sufficient legal capacity to pass through the test of maintainability
with respect to Honorable Supreme Court of Mandia.
14
Amber Sinha and Srinivas Kodali, report on Pehchaan, Centre for Internet & Security, Mandia (2017).
15
Express Lane report (WikiLeaks). https://wikileaks.org/vault7/#ExpressLane (last visited 29th sept,2017).
16
ON MERITS
[ISSUE-2] WHETHER PEHCHAAN PROJECT IS VIOLATING THE

FUNDAMENTAL RIGHT TO PRIVACY
It is humbly submitted before the honorable Supreme Court of Mandia that the Pehchaan
project of the government directly violates the fundamental right to privacy of the citizens as
Pehchaan project of the government is in direct contravention to the major points laid down in
the right to privacy judgement .
JUDGEMENT IN CONTENTION
Privacy as defined by Justice DY Chandrachud in the historic case of KS Puttaswamy v.
Union of India & Ors.
“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life,
marriage, procreation, the home and sexual orientation. Privacy also connotes the right to be
left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual
to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic
to privacy. Privacy protects heterogeneity and recognizes the plurality and diversity of our
culture. While the legitimate expectation of privacy may vary from the intimate zone to the
private zone and from the private to the public arenas it is important to underscore that privacy
is not lost or surrendered merely because the individual is in a public place. Privacy attaches
to the person since it is an essential facet of the dignity of human being.”
Laurence Tribe, in order to show the underlying purpose of the right to privacy and why it is
one of the foundational elements of a democratic nation, wrote in his book16 as under:
“Finally, the right to privacy is a requirement of democracy. When none of us can be certain
what the state knows about us or how it might use that information, the relationship between
the governed and the government is fundamentally altered. The state’s unlimited access to
whatever information it wishes to obtain about each citizen can create a profound power
imbalance and feeling of vulnerability. As Justice Robert Jackson once wrote of searches and
seizures, “Among deprivations of rights, none is so effective in cowing a population, crushing
the spirit of the individual and putting terror in every heart.” This is especially true when the
state develops the ability to combine many small pieces of data into a full picture of our lives.
16
Tribe, Laurence and Joshua Matz(ed.). Uncertain Justice:( The Roberts Court and the Constitution. Henry Holt
and Company, 2014).
17
Even if we trust the state not to abuse the information and search only for true threats, the risk
that our vast intelligence bureaucracy will make an egregious error is unavoidable. Entirely
innocent personal information can be abused, leaked, distorted, and put to mischievous use in
unpredictable ways. Without protection of privacy, democratic life could suffer a dangerous
chill.”
In I.R. Coelho v.. State of Tamil Nadu, (2007) 2 SCC 1, the Court observed:
"The fundamentals of fundamental rights has thus to be examined having regard to the
enlightened point of view as a result of development of fundamental rights over the years. It is,
therefore, imperative to understand the nature of guarantees under fundamental rights as
understood in the years that immediately followed after the Constitution was enforced when
fundamental rights were viewed by this Court as distinct and separate rights. In early years,
the scope of the guarantee provided by these rights was considered to be very narrow.
Individuals could only claim limited protection against the State. This position has changed
since long. Over the years, the jurisprudence and development around fundamental rights has
made it clear that they are not limited, narrow rights but provide a broad check against the
violations or excesses by the State authorities. The fundamental rights have in fact proved to
be the most significant constitutional control on the Government, particularly legislative
power. This transition from a set of independent, narrow rights to broad checks on State power
is demonstrated by a series of cases that have been decided by this Court. In State of Bombay
v. Bhanji Munji [AIR 1955 SC 41: (1955) 1 SCR 777] relying on the ratio of Gopalan [AIR
1950 SC 27: 1950 SCR 88: 1950 Cri LJ 1383] it was held that Article 31 was independent of
Article 19(1)(f). However, it was in Rustom Cavasjee Cooper v. Union of India [(1970) 1 SCC
248: (1970) 3 SCR 530] (popularly known as Bank Nationalisation case) that the viewpoint of
Gopalan [AIR 1950 SC 27: 1950 SCR 88: 1950 Cri LJ 1383] was seriously disapproved...
While examining this question the Court stated that the actual effect of the law on the right
guaranteed must be taken into account. This ratio was applied in Bank Nationalisation case
[(1970) 1 SCC 248: (1970) 3 SCR 530]. The Court examined the relation between Article
19(1)(f) and Article 13 and held that they were not mutually exclusive. The ratio of Gopalan
[AIR 1950 SC 27: 1950 SCR 88: 1950 Cri LJ 1383] was not approved.”
In R. Rajagopal v. State of T.N., the division bench held as follows:

―The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of
this country by Article 21.
18
In People's Union for Civil Liberties (PUCL) v. Union of India17, the division bench held as
follows:
―It is no doubt correct that every Government, howsoever democratic, exercises some degree
of sub rosa operation as a part of its intelligence outfit but at the same time citizen's right to
privacy has to be protected from being abused by the authorities of the day.
―We have, therefore, no hesitation in holding that right to privacy is a part of the right to
―life‖ and ―personal liberty enshrined under Article 21 of the Constitution.
In Maneka Gandhi v. Union of India,25 (i.e. fundamental rights are of the widest amplitude
encompassing a variety of rights), it stands well settled that
every person has the fundamental right to safeguard the privacy
of his own, his family, marriage, procreation, motherhood, childbearing
and education among other aspects18
Article 12 of Universal Declaration of Human Rights recognises the right to privacy as,
“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 such interference or attacks.”
The UDHR was passed on 19 December 1948 by the UN General Assembly (GA resolution
217 A). It is considered customary international law.
In respect of data shared with the State on account of a legal mandate or otherwise, the issue
of privacy is directly linked with fundamental rights enshrined in the Constitution. If for
example, an individual’s movements throughout the country are tracked, even though he has a
fundamental right to move freely throughout the territory of India, state interference by any
means whatsoever including through technology would directly impact the citizen’s right to
privacy. This is also true if the State through technology accesses conversations of individuals
sitting in their homes, in respect of which every individual has a legitimate expectation of
privacy. Consequently, the right to privacy is inherent in the right to life and personal liberty
enshrined in Article 21 of the Constitution.
17
(1997) 1 SCC 301.
18
R. Rajagopal v. State of T.N., (1994) 6 SCC 632.
19
It is submitted that the right to privacy invariably means the inviolability of the person. The
expression ‘person’ includes the body as well as the inviolate personality. It is submitted that
privacy really is intended to indicate the realm of inviolable sanctuary that most of us sense in
our beings. It refers to spatial sanctity, freedom in decisional autonomy, informational privacy
as well as the ability to freely develop one’s personality and exercise discretion and judgment.
It may be noted that both in Abington School District v. Schempp19 and Fisher v. United
States20, the expression on inviolability uses spatial imagery of the castle or the sanctuary to
convey the appropriate inaccessibility of the person, the inviolable citadel of a person’s heart
and mind, or the inner sanctum of individual feeling and thought.
The government of Mandia formulated a policy named “Pehchaan” for profiling its citizens
and to provide them a card called Pehchaan, subsequently they formulated National Unique
Identification Authority for making Pehchaan cards for the citizens of the country. The
essential requisitions asked by the government were their basic details like “finger prints of
both the hands, scanning of the iris of the eyes, blood group, spouse and child(ren) details,
their educational qualifications, number of spouses, the religion to which the spouse belong
to, laws under which the marriage is solemnized, details of life threatening diseases,
permanent infertility both in male and female and criminal/civil cases pending in any court
and government loan or any other liability on the citizen. It is humbly submitted, and is evident
from the facts stated above that the information sought is not of basic nature at all. Traditionally
basic details include name, father’s name, address, date of birth, gender etc. The question here
is, when the government is not asking the traditional basic details and instead asking intimate
information like finger prints of both the hands, scanning of the iris etc. Than how are they
going to identify the citizens as it is virtually impossible to identify citizens from this particular
piece of information. This shows that the government is itself not clear in its vision, either they
are wasting thousands of crores of taxpayers’ money on a scheme that has some grave
fundamental faults or they have some hidden motive behind creating such a database.
The information sought by the government is very intimate in nature and is violative of
Fundamental Right to Privacy as declared by Justice DY Chandrachud in the historic Right to
19
374 US 203 (at pp. 226).
20
425 US 391 (at pp. 416).
20
Privacy judgement21. It is also the violative of informational privacy22 as held in the American
cases stated above.
Informational privacy wad also noted by the Honorable Supreme Court in the landmark Right
to Privacy judgement, in Her Majesty, The Queen v. Brandon Roy Dyment23, it was held that
“Privacy is at the heart of liberty in a modern state...Grounded in man's
physical and moral autonomy, privacy is essential for the well-being of the
individual. For this reason alone, it is worthy of constitutional protection, but
it also has profound significance for the public order. The restraints imposed
on government to pry into the lives of the citizen go to the essence of a
democratic state.”
“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, and restricted to the purposes for which
it is divulged, must be protected.”
It is clear from the above citation that the bench was of the view that the confidential
information vested on any authority must be properly preserved and protected and any leakage
of such data will amount to the infringement of right to privacy.
Indeed, asking details like finger prints, blood group and even iris scan will help state identify
citizens better but government is asking information like details of life threatening diseases
like AIDS, Cancer etc. Supreme court in the Privacy judgement by citing a Canadian case 24
held that
“Private and confidential medical information contains highly sensitive and
personal information about individuals. The personal and intimate nature of
an individual's health information, unlike other forms of documentation,
reflects delicate decisions and choices relating to issues pertaining to bodily
and psychological integrity and personal autonomy...
Individuals value the privacy of confidential medical information because of
21
Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India And Ors,2017.
22
Information privacy, or data privacy (or data protection), is the relationship between the collection and
dissemination of data, technology, the public expectation of privacy, and the legal and political issues surrounding
them.
23
[1988] 2 SCR 417 (1988).
24
NM and Ors. v. Smith and Others ,2007 (5) SA 250 (CC) (2007).
21
the vast number of people who could have access to the information and the
potential harmful effects that may result from disclosure. The lack of respect
for private medical information and its subsequent disclosure may result in
fear jeopardising an individual's right to make certain fundamental choices
that he/she has a right to make. There is therefore a strong privacy interest
in maintaining confidentiality.”
Therefore, by asking the information about the life-threatening diseases government is
infringing right to privacy of the citizens. The government is also asking the information about
the permanent infertility from the citizens, we live in a very conservative society and if such a
information gets leaked can cause a great deal of embarrassment to that particular person, and
can cause a great deal of harm to the dignity of the citizens. The supreme court in KS
Puttaswamy case held that
“To live is to live with dignity. The draftsmen of the Constitution defined them
vision of the society in which constitutional values would be attained by emphasising,
among other freedoms, liberty and dignity. So fundamental is dignity that it
permeates the core of the rights guaranteed to the individual by Part III. Dignity is
the core which unites the fundamental rights because the fundamental rights seek to
achieve for each individual the dignity of existence. 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 is intended to achieve.”25
This shows that dignity is core to fundamental rights and asking such sensitive information can
hurt the dignity of an individual as well as infringes the fundamental right to privacy.
The High Court in its judgement didn’t give an iota of consideration to this fact and hence
there was a gross miscarriage of justice on their part.
Also, the government is making Pehchaan card mandatory for all the social welfare and benefit
schemes of the government and Mandia being a poor country with 22% of its population living
below poverty line, it becomes necessary for the citizens to enrol for Pehchaan cards. In Uzun
v. Germany26, European court of Human Rights, regarding retention of fingerprints held that
“...fingerprints objectively contain unique information about the individual
concerned allowing his or her identification with precision in a wide range of
25
Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India And Ors,2017.
26
Cited in Privacy judgement.
22
circumstances. They are thus capable of affecting his or her private life and
retention of this information without the consent of the individual concerned
cannot be regarded as neutral or insignificant...”.
Hence by making Pehchaan mandatory government is indirectly forcing the citizens to part
from their intimate information without their consent, this itself makes retrieving information
in this fashion an infringement of right to privacy. As evident from the facts and the law itself
that Right to Privacy is a fundamental right27 as specified in Part 3 of the constitution whereas
the Pehchaan doesn’t have any constitutional status so government cannot enforce a law that
goes beyond the basic structure28 of the constitution and hence as per the special powers
granted to the Honorable Supreme Court under Article 1329 The above stated submissions
clearly show that Pehchaan project of the government clearly violates the fundamental right to
privacy of the citizens.
27
The constitution of Mandia, art.21.
28
Keshvananda Bharti v. state of Kerala, AIR 1973 SC 1461.
29
The constitution of Mandia, art.13. The state shall not make any laws that takes away or abridges the rights
conferred in part 3(fundamental rights) and any law made in contravention of this clause shall to the extent of
contravention be void.
23
[ISSUE-3] WHETHER PEHCHAAN IS AN ESSENTIAL REPOSITORY FOR THE

WELFARE OF PEOPLE
It is humbly submitted before the honorable court that the Pehchaan project is not an essential
repository for the welfare of people due to innumerable reasons in contention. As Pehchaan
was a type of identity alternative from the side of the government for its citizens. And
according to the section 2(n) of the act 30
defines that “identity information” in respect of an
individual, includes Pehchaan number, his biometric information and his demographic
information and further section 2(k) of the act31 clearly states that “demographic information”
includes information relating to the name, date of birth, address and other relevant information
of an individual, as may be specified by regulations for the purpose of issuing an Pehchaan
number , but shall not include race, religion , caste , tribe , ethnicity , language , records
of entitlement, income or medical history. It is a type of double standard on the part of
government as, its present actions are completely erroneous and show paradox to what the act
specifies itself, therefore its quite difficult from the side of a layman to interpret or find out the
intention of the government in asking details like number of spouses, the religion to which
both spouses belong to, laws under which marriage is solemnized. The government doesn’t
have adequate legal backing and reasonability to support its argument as proved above.
By specifically asking each person about these types of vague details they might be instilling
a sense of inequality in the country as everyone would give different answer on the basis of
his/her religion which itself forces the citizens to think of themselves as a person belonging to
a particular religion with a narrow state of mind rather thinking of himself as a citizen of a
secular state broadly. From the above said statement it is clear that the citizens approach would
change from a collective one to an individualistic one, as everyone would be insecure because
it is quite unpredictable on the part of the government as of which specific religion the
government may be targeting with malafide intention in its mind. It may be justified from the
point of number of spouses because almost all communities and religion are against bigamy
marriage as majority of population (including Hindus, Sikhs, Jains And Buddhists) is governed
by Hindu Marriage Act,195432which states that the person should hold only monogamian
marriage under Hindu Law except few, therefore there would be malice on the part of the
government for the people within the ambit of the religion and the community supporting
30
Pehchaan act, 2016, s.2(n).
31
Pehchaan act, 2016, s.2(k).
32
Hindu Marriage Act, (1955), s .5.
24
bigamy marriage which may be conferred by their respective personal law 33as given as a
fundamental right of every citizen to practice, profess and propagate any religion . The
government is indirectly giving a big blow on the working of their respective personal law.
These types of things from the side of the government are against the principle of equality
which is the indispensable feature of the preamble of the constitution which is the basic
structure of the constitution. Inequality among citizens would not allow them to adhere to the
principle of fraternity i.e. sense of brotherhood family, which is wholly against the principle
of preamble.
The government has no rationale to support for why asking about religion of spouses and laws
under which their marriage is solemnized. These instances also reflect that the government
may be against or not supportive of inter-religion or inter-caste marriage which is a symbol of
pluralism and unity in diversity of our country. Due to this approach of the government the
society might move from concord to discord in a catastrophic situation in future , because
there may be encouragement to anti-social elements of the society which every time here and
there play a major part in disturbing the harmony of the society , because if information related
to religion of spouses is leaked through Pehchaan database which might be quite confidential
to the people having done inter-caste and inter-religion marriage , then these anti-social
elements would try to act as a hindrance in their smooth life despite of the fact that the law has
been made by the apex court in context of protection of these couples as an ultimate priority
of the state. This may further also give rise to incidents of honor killing of these couples which
are quite prevalent now days
The Supreme Court ruling in Lata Singh v. State of U.P. (2006) ordering “stern action” against
all those threatening or carrying out threats against couples. “There is nothing honorable in
such killings, and in fact they are nothing but barbaric and shameful acts of murder committed
by brutal, feudal-minded persons who deserve harsh punishment,” the judgment said. In fact,
the apex court, in Bhagwan Dass v. Delhi in May 2011, deemed honor killings in the “rarest
of rare” category of crimes that deserve the death penalty.
Marriage is the most important institution of human society. It is a universal phenomenon. It
has been the backbone of human civilization. Marriage creates new social relationships and
reciprocal rights between the spouses. It establishes the rights and the status of the children
when they are born. Each society recognizes certain procedures for creating such relationship
and rights. The society prescribes rules for prohibitions, preferences and prescriptions in
33
The Constitution of Mandia, art 25, 26, 27, 28.
25
deciding marriage. It is this institution through which a man sustains the continuity of his race
and attains satisfaction in a socially recognized manner. Therefore, marriage is a social
relationship which is private and quite covert in nature. It is not binding on any of the person
to showcase or disclose the law under which his/her marriage has been solemnized because if
the marriage has been solemnized between the persons of same religion their information
would already had been registered in their acts of respective personal law for eg. HINDU
LAW, MUSLIM LAW and if the marriage has been solemnized between the persons of
different religion their information would also had been already registered under special
marriage act, 1954. Therefore, it is implied that the citizens will always be reluctant to give
this type of information again under Pehchaan as there is unforeseeability on the part of the
citizens to interpret that why the government need data relating marriage solemnized law. As
government or someone through government might be able to misuse this data which might
lead to unfavorable consequences for the citizens by differentiating both spouses on the matter
of superiority their respective personal laws which may give rise to conflict of interest between
both. There is impulsive need from the side of the government to focus on broad and long-term
vision rather than handling these types of trivial and petty matters which are within the ambit
of right to privacy. As noted by the Honorable Supreme Court in the landmark Right to Privacy
judgement, S. and Marper v. United Kingdom34, it was held, with respect to right to respect
for private life, that the concept of "private life"... covers the physical and psychological
integrity of a person... It can therefore embrace multiple aspects of the person's physical and
social identity... Elements such as, for example, gender identification, name and sexual
orientation and sexual life fall within the personal sphere protected by Article 8... Beyond a
person's name, his or her private and family life may include other means of personal
identification and of linking to a family... Information about the person's health is an important
element of private life... The Court furthermore considers that an individual's ethnic identity
must be regarded as another such element... The concept of private life moreover includes
elements relating to a person's right to their image.
As mentioned above that the government is time to time taking such steps which are quite
contradictory in nature therefore the details of things which are already part of Pehchaan as an
exception are asked sequentially for fulfillment of apparent motive of government with
malafide intention. As it is nowhere written in the act itself about profiling the citizens based
on their respective communities because it would instill them with the sense of individualism
34
[2008] ECHR 1581 (2008)
26
which may be harmful for society and country as whole. This type of information may be used
by present day majoritarian government for the purpose of fulfillment of their apparent
malafide objectives. As a majoritarian government it ought to have disliking or instability from
the side of the ones who may not like its working at every step and moment especially the
minorities of the country. As a government whether majority or a minority, it is the duty to
treat everyone equal rather than first segregating the people to whom the government doesn’t
have a way with and then targeting them and acting as filter upon their heads so that benefit of
only that scheme and policy should be transferred only to the majority community which itself
forms a large portion of its vote bank. It may also at present, may deprive any particular or
targeted community from basic rights and amenities without any reason.
This is a type of extreme law is wholly against the interests of the minority community and
infringes the fundamental rights of the citizens. This can put our country in danger in the
coming future, as at present the government despite of being federal democratic is misusing
the power against some targeted groups or communities which may give rise to conflict of
interests and hatred among those groups so segregated. And further constant occurrence of
these acts by so called democratic government from outside but authoritarian from inside
would lay down an appropriate platform for any person from the benefitted or majority
population to step up and assume power as a dictator to rule the country in future and then the
consequences of this policy would be far worse for all citizens resulting into a destructive
society full of riots & massacre, for example Hitler at its peak killed roughly 6 million Jewish
at Holocaust. He began ethnic cleansing of the society by brutally killing the minority
population of Jews whose racial features differed from the majority German Aryan population.
Also, the government in the High Court promised for bringing a substantive law for the
protection of data, it’s been more than 5 years since the inception of this scheme, and going by
the government’s submission there is no substantive law yet for the protection of data. This
was a question of national importance so the government should have made an appropriate law
relating to data leakage in the first instance. Adhering to the principle of Prevention is better
than cure. Also, the law if passed will have a prospective effect, till date a quantum of data has
been leaked of the citizens, the question is, will the government will allow these penal measures
to work retrospectively or set some standard parameter to provide damages to the people whose
data has been leaked already till date. Hence it can be seen that Pehchaan is not an essential
repository for the welfare of the people.
27
PRAYER
In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to adjudge and declare: -
1. That the present special leave petition filed is maintainable before the Honorable
Supreme Court of Mandia
2. Pehchaan project is not an essential repository for the welfare of people.
3. Pehchaan project wholly unconstitutional and violates the rights of the citizens under
the constitution.
And any other order as it deemed fit in the interest of equity, justice & good conscience.
All this is humbly submitted before the Honorable Supreme Court of Mandia.
28

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TEAM CODE -42 [A]

IN THE HON’BLE SUPREME COURT OF MANDIA

SPECIAL LEAVE PETITION NO. ..... OF 2017

IN THE MATTER OF:

(UNDER ARTICLE 136 OF THE CONSTITUTION OF MANDIA)

MEMORIAL ON BEHALF OF THE PETITIONER

[Type text] MEMORIAL ON BEHALF OF PETITIONER 1

1) THE LIST OF ABBREVIATIONS………………………………………...3.

AIR All India Reporter,

PAN Permanent Account Number

H.C High Court

PDS Public Distribution System

NUIA National Unique Identification Authority

I.T Information Technology

PIL Public Interest Litigation

SCC Supreme Court Cases

HCD High Court Decision

U.O.I. Union of India

SCD Supreme Court Decision

SCR Supreme Court Reporter

SLP Supreme Leave Petition

(1) Aadhaar Act, 2016

(2) The Constitution of India,1950

THE STATEMENT OF JURISDICTION

THE STATEMENT OF FACTS

FOLLOWING ARE THE QUESTIONS BEFORE THE HON’BLE SUPREME COURT:

WHETHER THE SPECIAL LEAVE PETITION FILED IN THE PRESENT CASE IS

WHETHER PEHCHAAN PROJECT IS VIOLATING THE FUNDAMENTAL RIGHT

WHETHER PEHCHAAN IS AN ESSENTIAL REPOSITORY FOR THE WELFARE

[ISSUE-2] WHETHER PEHCHAAN PROJECT IS VIOLATING THE

In R. Rajagopal v. State of T.N., the division bench held as follows:

[ISSUE-3] WHETHER PEHCHAAN IS AN ESSENTIAL REPOSITORY FOR THE

Court be pleased to adjudge and declare: -

Supreme Court of Mandia

2. Pehchaan project is not an essential repository for the welfare of people.

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