BEFORE THE HON’BLE SUPREME COURT OF MANDIA

IN THE MATTER OF:

MR. SATISH DHANKAR ...............................................PETITIONER

V.

THE UNION OF MANDIA............................................. RESPONDENT

ON SUBMISSION TO THE HON’BLE SC OF MANDIA UNDER ART.

136 OF THE CONSTITUION OF MANDIA

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

MOHAMMAD ABDUL BARI INSTITUTE OF JURIDICAL SCIENCE

REG NO-002720 , ROLL -82LLBH , NO- 1502090 OF 2015-2016

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

1
 TABLE ON CONTENTS

S. No. Title Page

No.
1 LIST OF ABBREVIATIONS 3
.
2 INDEX OF AUTHORITIES 4
.
3 STATEMENT OF 6
. JURISDICTION
4 STATEMENT OF FACTS 7-10
.
5 STATEMENT OF ISSUE 12
.
6 SUMMARY OF 13-14
. ARGUMENTS
7 ARGUMENTS ADVANCED 15-25
.
8 PRAYER 26
.

2
 LIST OF ABBREVIATIONS
AIR ALL INDIA REPORTER
UIDAI UNIQUE IDENTIFICATION AUTHORITY OF INDIA
NUIDA NATIONAL UNIQUE IDENTIFICATION AUTHORITY
SC SUPREME COURT
UKSC UNITED KINGDOM SUPREME COURT
SCC SUPREME COURT CASES
SCJ SUPREME COURT JOURNAL
SCR SUPREME COURT REPORTER
Sec. SECTION
Art. ARTICLE
ECHR EUROPEAN CONVENTION ON HUMAN RIGHTS
CFREU CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION
UDHR UNIVERSAL DECLARATION OF HUMAN RIGHTS
ICCPR INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
U.O.I. UNION OF INDIA
v. VERSUS
ILR INDIAN LAW REPORTS
No. NUMBER
Anr. ANOTHER
Ors. OTHERS
S.A. SOUTH AFRICA
U.S. UNITED STATES
N.Y. NEW YORK
PDS PUBLIC DISTRIBUTION SYSTEM
IT INFORMATION TECHNOLOGY
PIL PUBLIC INTEREST LITIGATION
KYC KNOW YOUR CUSTOMER
PAN PERMANENT ACCOUNT NUMBER

INDEX OF AUTHORITIES

3
I. STATUTES
1. THE CONSTITUTION OF MANDIA
2. THE CONSTITUTION OF INDIA, 1950
3. THE AADHAAR (TARGETED DELIVERY OF FINANCIAL AND
OTHER SUBSIDIES, BENEFITS AND SERVICES) ACT, 2016
4. PEHCHAAN ACT, 2014
5. INFORMATION TECHNOLOGY ACT, 2000

II. BOOKS
1. JAIN M.P, INDIAN CONSTITUTIONAL LAW, 6TH EDITION 2011,
LEXISNEXIS
2. BASU D.D, SHORTER CONSTITUTION OF INTDIA, 14TH
EDITION, LEXISNEXIS.

III. CASES CITED

4
 A. INDIAN CASES

M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300
Malak Singh v State of Punjab and Haryana, (1981) 1 SCC 420
Gobind v State of Madhya Pradesh, (1975) 2 SCC 148
State of Maharashtra v Madhukar Narayan Mardikar, (1991) 1 SCC 57
Mrs. Neera Mathur Vs. Life Insurance Corporation of India and Anr, AIR 1992 SC 392
R. Rajagopal vs State Of T.N, 1995 AIR 264
PUCL v. Union of India, (1997) 1 SCC 301
Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat, (2008) 5 SCC 33
District Registrar and Collector, Hyderabad v Canara Bank, (2005) 1 SCC 496
Kharak Singh vs. The State of U.P. and Ors, 1962 (1) SCR 332
R.K. Dalmia v. Justice S.R. Tendolkar, (1959) SCR 279
Binoy Viswam v. Union of India, Writ Petition(Civil) No.247 Of 2017, Supreme Court
of

India
Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh, (2016)
7

SCC 353

5
STATEMENT OF JURISDICTION
It is humbly submitted that the petitioner has approached this Hon’ble Court invoking
its jurisdiction under Article 136of the Constitution of Mandia.
Article 136 in the Constitution of India 1949:
136. Special leave 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, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

6
 STATEMENT OF FACTS

1. The Republic of Mandia got independence from Britica on 15th September, 1946.
Mandia was a colony for about 150 years. On getting independence, it enacted its
Constitution which provided for a democratic parliamentary form of governance
with a federal structure based on the principles of free and fair elections, equality,
liberty, fraternity, transparency and accountability of the state and freedom of
religion as its core values. Republic of Mandia has its independent and autonomous
election commission. Judiciary of Mandia is also autonomous and independent in its
own sphere and its independence is held to be the basic structure of the Mandian
Constitution. The higher judiciary is made the guardian and interpreter of the
Mandian Constitution and hence the power of judicial review of the laws and
actions of the government is given to the higher judiciary. The State of Mandia is a
union of states and is a secular state. The following developments took place in the
Republic of Mandia, which resulted into a Special Leave Petition in the Supreme
Court of Mandia.

2. That the government of Mandia constituted National Unique Identification

Authority under the Chairmanship of Mr. Rajeev Khanna, IT specialist on 30th
November, 2009. This Authority started its work of making Pehchaan cards and
assigned this task to private entities having expertise in this field. These private
entities further outsourced this work to private vendors in every district and block of
Mandia to provide Pehchaan cards to the citizens by taking their basic and very
intimate information like finger prints of both the hands, scanning of iris of the
eyes, blood group, spouse and child(ren) details, their educational qualifications,
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 any court and government loan or any other liability on the citizen.

3. That the Petitioner, Mr. Satish Dhankar, challenged this policy of mandatory
Pehchaan cards in the High Court of Nelhi, one of the states of the Republic of

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4. Mandia on 22nd January, 2010 through a Public Interest Litigation (PIL)
contending that the Pehchaan policy violates right to life including the right to
privacy and right to speech and expression- especially the right to remain silent and
not to part with basic information about oneself. That the Petitioner also challenged
the policy as there is no law/statutory support for backing the mandatory making of
Pehchaan cards by the government.

5. Petitioner contented that the information sought under Pehchaan scheme is very
intimate and integral to one’s personality and hence making it mandatory to provide
basic and intimate information is unconstitutional and violative of his fundamental
rights. Pehchaan Act, 2014 is violative of right to privacy guaranteed by the
Constitution of Mandia and that data collected by government is not safe and it can
be leaked to private entities very easily threatening the life and liberty of the
citizens.

6. The data of 13 crore citizens was leaked from Pehchaan database and now this data
is in the hands of the private companies, which can use this data for telemarketing,
making the life of the consumers/citizens hell by influencing them to buy their
products. Such information can also be used for any other work which is
unauthorized by law. Recently an IIT passed graduate hacked into Pehchaan
database to use its data for his online payment App, this indicates that the private
entities appointed to collect the data from common people are not capable of
protecting this very intimate data and one can easily use this data for his personal
benefits. The most intimate information/data demanded under Pehchaan scheme is
integral to personality and hence violation of right to life under Article 21 of the
Mandian Constitution.

7. Also this data can be used by majoritarian governments for communal profiling of
communities and hence depriving them of basic rights and amenities provided by
the government. This can result into massacre, if some dictator assumes power in
the Republic of Mandia.

8. That the Petitioner, Mr. Satish Dhankar, challenged this policy of mandatory

8
9. Pehchaan cards in the High Court of Nelhi, one of the states of the Republic of
Mandia on 22nd January, 2010 through a Public Interest Litigation (PIL)
contending that the Pehchaan policy violates right to life including the right to
privacy and right to speech and expression- especially the right to remain silent and
not to part with basic information about oneself. That the Petitioner also challenged
the policy as there is no law/statutory support for backing the mandatory making of
Pehchaan cards by the government.

10. The government of Mandia on 24th July, 2014 during the pendency of this PIL
made Pehchaan card compulsory for seeking benefits under different social welfare
schemes of the government. That while hearing the case by the High Court of Nelhi,
the petitioner contended that during the pendency of the case government cannot
make Pehchaan cards mandatory for seeking benefits under government’s social
welfare schemes. On this High Court on 27th July, 2014 passed an interim order
directing the government not to make Pehchaan cards mandatory.

11. The government of Mandia the next day i.e. on 28th July, 2014 filed an application
for the clarification of the interim order and to make a plea that Pehchaan cards be
allowed to be made mandatory for non-benefit schemes or programmes of the
government like making of PAN Cards, Mobile connections, applying for gas
connection and opening of bank accounts. The High Court allowed government’s
plea permitting it to make Pehchaan cards mandatory for non-benefit schemes,
programmes and initiatives of the government.
12. In the monsoon session of the Parliament of Mandia on 11th August, 2014, the
government of Mandia enacted a law called the Pehchaan Act, 2014 making
mandatory the Pehchaan cards for all schemes (benefit and non-benefit both). This
law also provided a statutory basis to the National Unique Identification Authority.
The Act of 2014 also has a whole chapter on data protection and penalties and
punishments for data leakage. The Petitioner filed a fresh application in the High
Court to amend his petition for including the challenge to the Pehchaan Act, 2014.
The High Court allowed his plea to challenge the Pehchaan Act, 2014 along with
his original prayers for quashing the whole Pehchaan project of the government of
Mandia.

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13. On 13th January, 2015, the government of Mandia issued a notification making
Pehchaan mandatory for every scheme and programme. The notification said that
Pehchaan card is mandatory for issuing PAN card, Driving Licence, Passports,
opening bank account and existing bank accounts would be linked with Pehchaan
Cards. The government of Mandia fixed March, 2016 as the deadline for linking
Pehchaan cards with bank accounts and PAN cards and asked every citizen to
comply with it and in the absence of compliance penal actions are to be initiated.

14. The Petitioner prayed for the stay on above notification of the government till the
final Disposal of the PIL but High Court refused to stay the notification but agreed
for day to day hearing of the case keeping in view the urgency of the matter.

15. That the Respondent also promised during the proceedings that it will soon bring a
substantive law for the protection of data. after hearing the matter in detail and
going through the materials and documents submitted by Petitioner and the
Respondent, the High Court of Nelhi rejected the PIL and held that Pehchaan Act,
2014 is constitutional and government can make mandatory the making of
Pehchaan cards.

16. It further held that right to privacy is a common law right and right to deny
information to the government cannot he held to be fundamental right in the light of
the necessity to protect the state from terrorism and other security related problems.
Since the state of Mandia is surrounded by hostile neighbours it becomes incumbent
on the part of the government to provide Pehchaan cards to all its citizens.
17. The High Court of Nelhi also held that making Pehchaan mandatory is essential for
the benefits of schemes to reach to citizens as it will eradicate the problem of
duplicity of identities. It will further help in making elections free and fair by
eliminating double election cards and voting rights at two or more than two places.
the High Court of Nelhi also justified the collection of data by private entities for
the Pehchaan as government of Mandia is not having adequate resources and staff
for this purpose and hence its outsourcing of data collection exercise is justified
because of the reasons of lack of resources, expertise and staff with the government.
The Petitioner went to the Supreme Court of Mandia assailing the decision of the

10
Hon’ble High Court of Nelhi. That the Petitioner came to the Supreme Court of
Mandia through a Special Leave Petition under the provision of the Constitution of
Mandia. He prayed for quashing the judgment of the 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.

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 ISSUES PRESENTED

ISSUE 1
WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE?
ISSUE 2
WHETHER THE PEHCHAAN POLICY AND THE PEHCHAAN ACT, 2014 BROUGHT
BY THE GOVERNMENT OF MANDIA ARE CONSTITUTIONAL?
ISSUE 3
WHETHER THE PEHCHAAN PROJECT OF THE GOVERNMENT OF MANDIA IS
VIOLATIVE OF THE FUNDAMENTAL RIGHTS OF THE PEOPLE PROVIDED BY
THE CONSTITUTION?
ISSUE 4
WHETHER THE GOVERNMENT HAS TAKEN ADEQUATE MEASURES TO SECURE
THE DATA COLLECTED FOR THE PURPOSE OF MAKING PEHCHAAN CARDS?

12
 SUMMARY OF ARGUMENTS

[1]. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE?

It is humbly submitted before the Hon’ble SC that, the Special Leave Petition filed by
the petitioner, Mr. Satish Dhankar is maintainable, as the matter involves a substantial
question of law of general public importance. The arbitrary and hasty judgment of the
HC declaring, right to privacy as a common law right and the Pehchaan Policy and the
Pehchaan Act, 2014 of the government as Constitutional has resulted in miscarriage of
justice and if the SC does not intervene, it will result in gross injustice. The Hon’ble SC
should therefore, applying its wide jurisdiction conferred under Art. 136 of the
Constitution of India, use corrective measures to correct the wrong done by the
decision of the HC of Nelhi.

[2]. WHETHER THE PEHCHAAN POLICY AND THE PEHCHAAN ACT, 2014
BROUGHT BY THE GOVERNMENT OF MANDIA ARE CONSTITUTIONAL?

It is humbly submitted before the Hon’ble SC that the Pehchaan Policy and the
Pehchaan Act, 2014 brought by the government of Mandia are unconstitutional as they
are in violation of fundamental rights guaranteed under Part III of the Constitution of
India. Therefore, even though the Policy and the Act have been brought by the
legislature, which comes under the definition of state as per Art. 12 of the Constitution
of India, they are in contravention of Art. 13(2) of the Constitution, thus making them
void.

[3]. WHETHER THE PEHCHAAN PROJECT OF THE GOVERNMENT IS

VIOLATIVE OF THE FUNDAMENTAL RIGHTS OF THE PEOPLE
PROVIDED BY THE CONSTITUTION?

It is humbly submitted by the Appellant that Right to Privacy has been accepted by the
SC in the case of K.S. Puttaswamy, as a constitutionally protected fundamental right. It
is an integral part of Right to life and Personal liberty, and any restriction imposed on it
should be in accordance with procedure established by law, i.e., it must satisfy the

13
requirements of Art. 14 and 19. Also, the law imposing such restrictions should be just,
fair and reasonable. As per the facts and circumstances of the case, the restrictions
imposed by the government on the exercise of right to privacy of people, is arbitrary
and unreasonable, as there exists no reasonable classification, and there is no nexus
between such classification and the objective of the Act. Information sought from the
people, severely violates the bodily and mental integrity of the people, in addition to
having no relation to the objective of the Act. Also, classification based on religion is
not only discriminatory but compelling the people to
disclose their religion is in violation of Art. 25 of the Constitution of India, 1950. It is
also pertinent to note that the restrictions imposed are not in proportion to the objective
of the Act. Further, making Pehchaan Cards mandatory for the purposes of benefit and
non- benefit schemes deprives the people of their choice; while putting them under
constant surveillance of the state. This is a grave violation of right to life as it infringes
upon the dignity of the individual, which is the basic element of the Constitution.
Also, it is humbly submitted before the Hon’ble Court that, the Right to remain silent is
contained within the meaning of Freedom of Speech and Expression, and can only be
restricted in accordance with the explicit provisions provided under Art. 19(2) of the
Constitution of India. Further, no law can be made to give effect to Directive Principles
of State Policy, which gives absolute primacy to the principles, infringing the
fundamental rights of the people.

[4]. WHETHER THE GOVERNMENT HAS TAKEN ADEQUATE MEASURES

TO SECURE THE DATA COLLECTED FOR THE PURPOSE OF MAKING
PEHCHAAN CARDS?

It is humbly submitted before the Hon’ble Court that the government has not taken
adequate measures to secure the data collected under the Pehchaan Project. While,
penalties have been imposed for breach of data protection and leakage of data, there is
lack of adequate measures at the preventive stage itself, which makes it susceptible to
identity theft and other like offences. Further, the National Identification Authority
established by the government has delegated the task of data collection to private
entities who have further outsourced the task to private vendors, on whom binding
rules as to maintaining adequate safety measures do not apply.

14
 ARGUMENTS ADVANCED
[1]. THAT THE SPECIAL LEAVE PETITION IS MAINTAINABLE

1. It is humbly submitted before this Hon’ble Court that, the Special Leave Petition
filed by the petitioner, Mr. Satish Dhankar is maintainable, as the matter involves a
substantial question of law of general public importance. If the SC does not
intervene, it will result in gross injustice and that, miscarriage of justice has
already occurred, by the erring judgment of the HC of Nelhi, which declared the
Pehchaan Project as constitutional, with complete disregard for the fundamental right
of privacy of the people. Therefore, the special leave petition of the petitioner must be
accepted, so that the Hon’ble Court can use its wide jurisdiction conferred under Art.
136, to correct the wrong done by the decision given by the HC of Nelhi.

[1.1]. THE MATTER INVOLVES QUESTION OF LAW OF GENERAL

PUBLIC IMPORTANCE

2. It is humbly submitted before the Hon’ble Court that the jurisdiction conferred
under Art. 136 on the SC is corrective one and not a restrictive one and can be invoked
when a question of law of general public importance arises, by filing Special Leave
Petition. It is well-settled that illegality 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, therefore a duty is enjoined upon the SC to exercise its power by setting
right the illegality in the judgments.

3. Art. 136 provides residuary power to the SC to do justice where the court is
satisfied that injustice has been done. Illegality should not be allowed to be perpetrated
merely for the sake of upholding technicalities.

4. In the instant matter, the right to privacy, which is an integral part of the right to
life of people, is violated by the state and their personal sensitive information has
leaked, which is a matter of general public importance and therefore, calls for
intervention by the SC.

15
[1.2] THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAW AND

GROSS INJUSTICE HAS BEEN DONE

5. It is humbly submitted by the petitioner before this Hon’ble Court that, the matter
involves substantial question of law as it concerns the violation of fundamental right
of privacy of the people of Mandia and gross injustice has already been meted out by
the decision of HC of Nelhi, which has hastily and arbitrarily declared it as a common
law right, and held the Pehchaan Policy and the Pehchaan Act, 2014 brought by the
government of Mandia as constitutional.

[1.2.1] SUBSTANTIAL QUESTION OF LAW

IS INVOLVED

6. It is humbly submitted that where findings are entered without considering relevant
materials and without following proper legal procedure, interference of SC is called for.
In the instant case, the Hon’ble HC has erred in deciding a very substantial question of
law, related to right to life of the people.

7. Whether a matter involves substantial question of law, depends on whether it is of

general public importance, which directly or substantially affects the rights of the
parties, or it has already been decided by the highest Court. It will, therefore, depend on
the facts and circumstance of each case whether a substantial question of law is involved
in the case.

8. It is submitted that, the present case involves a matter of general public importance
as it directly and substantially affects the rights of the parties as the order is erroneous
and prejudicial to the interest of people and also the HC had erred in dismissing the PIL
stating that Right to privacy is not a fundamental right of citizen under Art. 21.

[1.2.2] GROSS INJUSTICE HAS BEEN DONE

9. The judgment of HC of Nelhi is bad in the eyes of law as it did not recognize the
right to privacy of people which is an intrinsic part of right to life as fundamental right

16
rather as a common law right.13 Grave miscarriage of justice has occurred because of this
serious and flagrant violation of law has been committed by the HC14 for which
interference of the SC is required.

10. The requirement of personal details for making of Pehchaan Cards, like finger print,
iris scan, motherhood, procreation and other like information constitute grave violation
of right to privacy of the people, and grave injustice has been meted out by the judgment
of the HC by declaring the Pehchaan Act which makes Pehchaan Cards mandatory, as
constitutional.

[1.2.3] FINDING OF FACTS MAY GIVE RISE TO SUBSTANTIAL QUESTION

OF LAW.

11. The SC is not precluded from going into the question of facts under Art. 136, if it
considers it necessary to do so.15 Art. 136 uses the words ‘in any cause or matter’. This
gives widest power to this court to deal with any cause or matter. It is plain that
when the SC reaches the conclusion that a person has been dealt with arbitrarily or that a
court or tribunal has not given a fair deal to a litigant, then no technical hurdles of any
kind like the finality of finding of facts, or otherwise can stand in the way of the exercise
of this power.

12. In the instant case, the HC, in haste, reached the conclusion that right to deny
information to the government cannot be held to be fundamental right as a matter of
national security is involved, and that the Pehchaan would be beneficial in making
further beneficial government schemes. Thus, on the above grounds, it is humbly
submitted that the petition is maintainable before the Hon’ble SC of Mandia.

[2]. THAT THE PEHCHAAN POLICY AND THE PEHCHAAN ACT, 2014
BROUGHT

BY THE GOVERNMENT ARE NOT CONSTITUTIONAL

13. It is humbly submitted before the Hon’ble Court that the Pehchaan Policy and the
Pehchaan Act, 2014 enacted by the government of Mandia are unconstitutional as
though the Act was passed by the legislature of the state, they are in violation of Part III

17
 of the Constitution of India, which guarantees the people certain fundamental rights and
therefore, they are void, being in contravention with Art. 13(2) of the Constitution.

[2.1] THE ACT WAS BROUGHT BY THE LEGISLATURE OF THE STATE

14. It is most humbly submitted that the government of Mandia which comes within the
definition of state under Art. 12, formulated a policy named Pehchaan which was later
converted into a legislative enactment.

15. It is humbly submitted that the term ‘law’ includes any ordinances, order, bye-
laws, rule, regulation, notification, custom or usages having in the territory of
Mandia, the force of law. Therefore it is clear that not only law made by legislature but
also an order or notification which takes away or abridges the fundamental rights
conferred by Part III of the Constitution would be void. In this particular case, at first
instance, the govt. of Mandia formed a policy named as Pehchaan and later it was
enacted, as a statute to be known as ‘The Pehchaan Act, 2014’, in the Monsoon session
of parliament. Hence the law clearly falls within the ambit of Art. 13 (3)(a) of the
Constitution.

[2.2] THE PEHCHAAN POLICY AND THE PEHCHAAN ACT, 2014

BROUGHT BY THE GOVERNMENT VIOLATE THE FUNDAMENTAL

RIGHTS OF THE PEOPLE

The main objective of Art. 13 is to secure the paramountcy of the constitution especially
with regards to fundamental rights. The state is prohibited from making any law
which takes away or abridges rights conferred by Part III of the Constitution. If the state
makes such a law then, it would be ‘still born law’ and void to the extent of such
contravention.

16. Though post-constitutional laws inconsistent with fundamental rights are void from
their very inception yet a declaration by the court of their validity will be necessary.

17. Therefore, the Pehchaan Act, 2014 enacted by the government of Mandia is void,
and a declaration of the same by the SC is necessary.

18
[3]. THAT THE PEHCHAAN PROJECT OF THE GOVERNMENT IS VIOLATIVE
OF THE FUNDAMENTAL RIGHTS OF THE PEOPLE PROVIDED BY THE
CONSTITUTION

18. It is humbly submitted before this Hon’ble Court that the Right to Privacy has been
recognized as a fundamental right and the ‘Pehchaan Policy and the Pehchaan Act,
2014’ brought by the respondent is in violation of Arts. 14, 19, 21 and 25 of the
Constitution of India.

[3.1] VIOLATION OF THE FUNDAMENTAL RIGHT TO PRIVACY OF THE

PEOPLE

19. It is humbly submitted before the Hon’ble Court that right to Privacy is the basic
inalienable right of an individual concomitant of his right to exercise control over his
personality and is essential for his development as a human being. The liberty of an
individual is a matter of fundamental natural law, a private preserve and must be
safeguarded from unnecessary interference.

20. Right to privacy has been held to be constitutionally protected fundamental

right.30 Right to privacy is vested within right to life and personal liberty under Art. 21
of Constitution of Mandia. A citizen under this right has the right to protect and
safeguard the liberty of his own, his family, marriage, procreation, motherhood,
childbearing and education among other matters.

According to Black’s Law Dictionary, Privacy has been defined as, “right to be left
alone”; right of a person to be free from any unwarranted publicity; right to live freely
from any unwarranted interference by the public in matter with which public is not
necessarily concerned”. It is on the desire of people to choose freely under what
circumstances and to what extent they will expose themselves, their attitude and their
behaviour to others.

19
 21. The scope of Art. 21 is very broad and it covers every aspect of life which is
required for an individual to live a healthy and secured life. Art. 21 takes all those
aspects of life which go to make a person's life meaningful and even State can’t violate
it. Art. 21 protects the dignity of human life, one's personal autonomy, one’s right to
privacy, etc. Right to dignity has been recognised to be an essential part of the right to
life and accrues to all persons on account of being humans. If we talk of right to privacy
then it also contains a broad scope in it like tapping of telephonic conversation,
disclosure of dreadful disease, subjecting to medical tests. Here in the present case, the
information sought under Pehchaan Scheme is very intimate and integral to one’s
personality and hence making it mandatory to provide basic and intimate information is
unconstitutional and violative of Fundamental Right to privacy.

[3.2] MANDIA’S COMMITMENT UNDER INTERNATIONAL LAW

22. The recognition of privacy as a fundamental constitutional value is a part of

Mandia’s commitment to a global human rights regime. The state is required to
endeavour to “foster respect for international law and treaty obligations in the dealings
of organized peoples with one another”.

The Universal Declaration of Human Rights of which India is a party recognises that
everyone has the protection of law against interference with his privacy, family, home
or correspondence, or attack upon his honour and reputation. Similarly, the International
Covenant on Civil and Political Rights casts an obligation on states to respect, protect and
fulfil its norms. Art. 17 of the ICCPR casts a duty upon the states to adopt and enact
measures to prohibit undue interferences with the exercise of right to privacy of people.
The government in order to give effect to these provisions of ICCPR has enacted the
Protection of Human Right Act, 1993 which includes liberty as the basic human rights
guaranteed to the people.

23. The obligations assumed by India in International Conventions and Treaties,

must reflect in the legislations enacted by the government. Also, in absence of any
provision of domestic law, the provisions of the Conventions of which the country is a
party shall be applicable.

24. Where there is a contradiction between international law and a domestic statute, the
Court would give effect to the latter. 44 In the present case, there is no contradiction

20
 between the international obligations which have been assumed by Mandia and the
Constitution. The Court should not readily presume any inconsistency. Mandia being a
responsible member of the international community, the Court must adopt an
interpretation which abides by the international commitments made by the country and
recognise right to privacy as fundamental right.

25. The decision of the HC of Nelhi that right to privacy is a common law right, holds
no ground as it has been clearly observed in the recent case of K. S. Puttaswamy,46 that;

“The fact that a right may have been afforded protection at common law does not
constitute a bar to the constitutional recognition of the right. The central theme is that
privacy is an intrinsic part of life, personal liberty and of the freedoms guaranteed by
Part III which entitles it to protection as a core of constitutional doctrine. The protection
of privacy by the Constitution liberates it, as it were, from the uncertainties of statutory
law which, as we have noted, is subject to the range of legislative annulments open to a
majoritarian government.”

26. Thus, the options canvassed for limiting the right to privacy include an Art. 14 type
reasonableness enquiry; limitation as per the express provisions of Art. 19; a just,
fair and reasonable basis (that is, substantive due process) for limitation per Art. 21; and
finally, a

just, fair and reasonable standard per Art. 21 plus the amorphous standard of
‘compelling state interest’. The last of these four options is the highest standard of
scrutiny, which a court can adopt. It is from this menu that a standard of review for
limiting the right of privacy needs to be chosen.49

[3.1.1] PEHCHAAN PROJECT OF THE GOVERNMENT IS NOT IN

ACCORDANCE WITH THE PROCEDURE ESTABLISHED BY LAW AS PER
ART. 21 OF THE CONSTITUTION

27. Right to Privacy has been culled from Art. 21 of the Constitution of India, as the
concept of privacy overlaps with that of liberty.Right to Privacy is an integral part of
Right to life and Personal Liberty, and it can be curtailed only in accordance with the
“Procedure established by Law”, as provided under Art. 21 of the Constitution of India.

28. International Convention on Civil and Political Rights of which India is a signatory

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 also provides that it is duty of the state to protect the liberty of the people and it can
be restricted, only in accordance with such procedure as are established by law.54

29. The SC in Maneka Gandhi, has laid down a triple test for any law to be considered
to be in accordance with the ‘Procedure established by law’: (1) The law must prescribe
a procedure (2) the procedure must satisfy the requirements of Arts. 14 and 19 (3) And,
it should be just, fair and reasonable.

30. The Pehchaan Act, 2014 enacted by the government which makes making of
Pehchaan Cards mandatory for all schemes (benefit and non-benefit both), is not in
accordance with procedure established by law, i.e., it is neither just, fair and reasonable
nor does it satisfy the requirements of Art. 14, 19 and 21 of the Constitution and
therefore it is arbitrary and unreasonable amounting to infringement of right to privacy
as no such circumstances exist that justify the restrictions imposed by the government on
the exercise of right to privacy of people.

[3.1.2] THE PEHCHAAN PROJECT OF THE GOVERNMENT IS IN VIOLATION OF

ART. 19 OF THECONSTITUTION

31. It is humbly submitted before the Hon’ble Court that the Pehchaan project violates
the Right to remain silent enunciated under Art. 19(1)(a) of the Constitution. The ambit
of freedom of speech and expression provided under Art. 19(1)(a) of the Constitution is
very wide. Right to remain silent is included within the definition of freedom of
speech and expression as has been recognized by the SC in the case of Bijoe
Emmanuel v. State of Kerala.57 The right includes by necessary implication, freedom not
to listen and/or to remain silent. Silence postulates a realm of privacy. The privacy of the
individual recognises an inviolable right to determine how freedom shall be exercised.
An individual may perceive that the best form of expression is to remain silent. An
important manifestation of the principle of free speech is that one who chooses to
speak may also decide what not to say. The right of freedom of thought as guaranteed
by the Constitution against state action includes both right to speak freely and the right
to refrain from speaking at all. As such every citizen is entitled to exercise the right
except when restrictions are imposed on its exercise in accordance with Art. 19(2) of the
Constitution.

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 32. In the present case, the Government has made Pehchaan Cards mandatory for
seeking benefits under different social welfare schemes of the government and also for
issuing PAN Cards, Driving Licence, Passports, Opening bank accounts, etc. The state
by making Pehchaan Cards mandatory for variety of schemes has compelled the citizens
to part with their demographic and biometric information in clear violation of their right
to remain silent. Further, there exists no reasonable ground to restrict the right to remain
silent of the people.

[4]. THAT THE GOVERNMENT HAS NOT TAKEN ADEQUATE MEASURES TO

SECURE THEDATA COLLECTED FOR THE PURPOSE OF MAKING
PEHCHAAN CARDS

33. The Pehchaan Project of the government of Mandia is devoid of adequate security
measures to guarantee the security of data collected for the purpose of making Pehchaan
Cards. The respondent is yet to bring substantive law for the protection of data.115
Though, there are penal provisions for offences relating to data leakage in the Pehchaan
Act, but there are no security measures in place to ensure the protection of data; thereby,
giving rise to grave violation of the privacy of the people as the large database of the
Pehchaan Project remains largely unprotected.

[4.1] LACK OF SECURITY MEASURES TO PREVENT LEAKAGE OF DATA

34. It is contended in this regard that mere presence of a full chapter on data protection
and penalties for leakage, is not enough, to further such data protection; in the present
case even an IIT graduate could hack into the data base, which would compel any
prudent individual to think how prepared such security measures are, to face real time
cyber threats. Also, the principle of res ipsa loquitor tells that “the thing speaks for
itself” i.e., the contention of the government that they will bring a substantive law for
the protection of data is in itself tells that the present law to protect data is not sufficient.

[4.1.1] PREVALENCE OF IDENTITY THEFT

Scheme of Pehchaan Cards brought by the government is susceptible to identity theft.

There have been many instances in several countries of information being stolen from

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the government database of national identification programmes and recreation of such
information by illegal means. For instance, in Turkey, Personal details i.e. First and last
names, National identifier numbers Gender, City of birth, Date of birth, Full address,
ID registration city, district etc. of nearly fifty Million Turkish citizens, including the
country’s President Recep Tayyip Erdogan, have been compromised and posted online
in a massive security breach which is supposed to be the biggest public breaches of its
kind, effectively putting two-thirds of the Nation's population at risk of identity theft
and fraud.

[4.1.2] DE- DUPLICATION OF IDENTITIES

There is consensus among scientists and legal experts regarding the limitations of
biometrics in proving identity. No accurate information exists on whether the
errors of matching fingerprints are negligible or non-existent. A small percentage
of users would always be either falsely matched or not matched at all against the
database.

[4.2] THERE ARE NO ADEQUATE SAFEGUARDS AGAINST MISUSE OF

PEHCHAAN DATABASE

35. Chapter VI and Chapter VII of the Aadhaar Act, 2016 deal with Protection of data
and offences and penalties for breach of any such data. The National Unique
Identification Authority is required to adopt and implement appropriate technical and
organisational security measures to ensure that the information in the possession or
control of the Authority is secured and protected against access, use or disclosure not
permitted under this Act or regulations made thereunder, and against accidental or
intentional destruction, loss or damage.But, there is no provision of security against
misuse by the government itself. And, there is a possibility that such information
could be misused by government which is communalist in nature, as the Act lacks in
adequate safeguards which the Pehchaan Act lacks in. For instance, in the Rwandan
genocide it was by using identity cards that the demarcation of the Tutsis and Hutus
could be done.

[4.3] DELEGATION OF AUTHORITY TO PRIVATE ENTITIES AND

PRIVATE VENDORS

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36. Furthermore, the enrolling agencies are the private entities who further outsource the
work to private vendors in each district and block in Mandia which means the data being
collected reaches first in the hands of the private vendors, which makes the data even
more vulnerable to misuse and leakage, which is a grave threat of a citizen’s
privacy.Furthermore, while the National Identification Authority which is
established by statute is obliged to maintain adequate security measures, the same
does not go for private vendors, which raises doubts as to the protection of data, which
can act as a gateway for identity theft.

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 PRAYER FOR RELIEF

Wherefore in light of the issues raised, arguments advanced, and authorities cited, it is
prayed that this Hon'ble SC may be pleased to hold that:
1. the Special Leave Petition is maintainable.
2. the Hon’ble High Court of Nelhi err in rejecting the Public Interest Litigation
against the Pehchaan policy.
3. the ‘Pehchaan Policy and The Pehchaan Act, 2014’ brought by the
government of Mandia is unconstitutional and violates fundamental rights of
the people of Mandia.
And Pass any other Order, Direction, or Relief that it may deem fit in the Best
Interests of Justice, Fairness, Equity and Good Conscience.
For This Act of Kindness, the Shall Forever Pray.

Sd/-
(Counsel for the Petitioner

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