List of Abbreviations Index of Authorities

SCC Online Web Edition, Copyright © 2020
Page 1 Tuesday, January 07, 2020

Printed For: Chhatresh Kumar Sahu, National Law University, Dwarka
SCC Online Web Edition: http://www.scconline.com
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11th Amity National Moot Lucknow, 2018

Winner Team Memorial - Appellant
BEFORE THE HONOURABLE SUPREME COURT OF INDIANA

IN THE MATTER OF ARTICLES 14, 19, 21 AND 110 OF THE CONSTITUTION OF
INDIANA, 1950 & SECTIONS 499 AND 500 OF INDIANA PENAL CODE & SECTIONS 43
AND 66 OF INFORMATION TECHNOLOGY ACT, 2000.
STATE OF UTTAM PRADESH . . APPELLANT NO. 1
V.
MS. MEDHA SINGH . . RESPONDENT NO. 2
AND
UIDAI . . APPELLANT NO. 2
V.
NEWS NETWORK 24 . . RESPONDENT 2
AND
UIDAI . . APPELLANT NO. 2
V.
AMAN SRIVASTAVA . . RESPONDENT 3
TANYA KUMARI . . RESPONDENT 4
BEFORE SUBMISSION TO HON'BLE CHIEF JUSTICE
AND
HIS COMPANION JUSTICES OF THE HON'BLE SUPREME COURT
MEMORIAL ON BEHALF OF THE APPELLANTS
TABLE OF CONTENTS
TABLE OF CONTENTS i
LIST OF ABBREVIATIONS iv
INDEX OF AUTHORITIES v
[A] Cases v
[B] STATUTES vii
[C] Books vii
STATEMENT OF JURISDICTION viii
STATEMENT OF FACTS ix
STATEMENT OF ISSUES xi
SUMMARY OF ARGUMENTS xii
ARGUMENTS ADVANCED 1
ISSUE I : WHETHER THE CURRENT PETITION IS MAINTAINABLE 1
BEFORE THE HON'BLE SUPREME COURT
[1.1] THE SUPREME COURT HAS JURISDICTION UNDER ARTICLE 136 1
[1.2] THE APPELLANTS HAVE LOCUS STANDI 1
[1.3] EXTRAORDINARY AND SPECIAL CIRCUMSTANCES ATTRACT THE 2
DISCREATIONARY POWERS OF THE SUPREME COURT
[1.3.1] There is a substantial question of law 2
[1.3.2] Grave miscarriage of justice has taken place 2
ISSUE II: WHETHER THE JAANADHAAR ACT, 2016 IS IN VIOLATION 4
OF THE CONSTITUTION OF INDIANA, 1950
[2.1] Article 14 is not violated by the mandatory nature of the Act 4
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[2.1.1] The classification is founded on basis of intelligible differentia 4
[2.1.2] The differentia has a reasonable nexus with the object 5
attached
[2.2] The mandatory linking of Janaadhaar Number with PAN doesn't 5
infringe articles 19(1)(g) of the Constitution
[2.2.1] It is in consonance with Article 19(1)(g) of Constitution 6
[2.2.2] It comes under the ambit of reasonable restriction under 7
Article 19(6)
[2.3] The right to privacy under Article 21 of the Constitution is violated 7
by the mandatory nature of the Act
[2.3.1] The right to privacy is not an absolute right guaranteed under
the Constitution8
[2.3.2] The Act is not in violation of the right to life and personal 9
liberty under Article 21 of the Constitution
[2.4] The Janaadhaar Act has been passed in compliance with relevant 10
provisions of the Constitution
[2.4.1] The Janaadhaar Act pertains to the category of Money Bills as 10
per the Constitution
[2.4.2] The discretion of the speaker in determining the nature of a 11
bill is final
ISSUE III: WHETHER THE STING OPERATION CONDUCTED BY NEWS 12
NETWORK 24 LED TO DEFAMATION OF UIDAI
[3.1] THE REPORT PUBLISHED BY NEWS NETWORK 24 IS DEFAMATORY 12
[3.1.1] UIDAI, as a Government Association can sue News Network 12
24 for Defamation
[3.1.1.1] The doctrine of “Expressio Unius Est Exclusio Alterius” is 13
applicable
[3.1.2] The report published by News Network lead to the defamation 13
of UIDAI
[3.1.2.1] An imputation was published concerning UIDAI 14
[3.1.2.2] The report published by The News Network was intended 14
to be read by the public
[3.1.2.3] The report was published with the belief and knowledge 15
that it would cause harm to the reputation of UIDAI
[3.2] THE STING OPERATION CONDUCTED BY NEWS NETWORK 24 16
DOES NOT HAVE EVIDENTIARY VALUE
ISSUE IV : WHETHER THE ACTIONS OF AMAN SRIVASTAVA AND 18
TANYA KUMARI AMOUNT TO CYBERCRIME UNDER THE IT ACT, 2000
[4.1] UIDAI HAS TAKEN ADEQUATE MEASURES TO ENSURE THE 18
PROTECTION OF DATA
[4.1.1] Preventive provisions have been laid down against misuse of 18
JanaadhAar Database
[4.1.1.1] Provisions under the Information and Technology Act, 18
2000
[4.1.1.2] Provisions under the Janaadhaar Act, 2016 19
[4.1.2] Penal provisions for Unauthorised Access 19
2000
[4.1.2.2] Provisions under the Janaadhaar Act, 2016 19
[4.2] THE ACTS OF AMAN SRIVASTAVA AND TANYA KUMARI ARE ACTS 20
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OF CYBERCRIME CHARGABLE UNDER IT ACT, 2000
[4.2.1] The students have commited offences under the Information 20
& Technology Act, 2000
[4.2.1.1] Offence under Section 43 has been committed by the 20
students
[4.2.1.2] The students are guilty of offences under the IT Act 21
[4.2.1.2.3] The students are liable under Section 66D and Section 23
70 of the IT Act
PRAYER 24
LIST OF ABBREVIATIONS
ABBREVIATION FULL FORM
AIR All India Reporter
All. Allahabad
Anr. Another
Art. Article
Bom Bombay
Co. Company
Cri Criminal
CriLJ Criminal Law
Journal
Ed Edition
Guj Gujarat
Hon'ble Honourable
Ors. Others
Ors. Others
Pvt. Ltd. Private Limited
R. Rex/ Regina
SC Supreme Court
SCC Supreme Court
Cases
Sec. Section
TOI Times of Indistan
U.S. United States
v. Versus
INDEX OF AUTHORITIES
[A] CASES
1. A. Shankar S/o. K. Achimuthu v. State rep. by Deputy Superintendent 22
of Police, Cyber Crime Cell Crime Branch CID, Crl. O.P. No. 6628 of
2010; R v. Whiteley, (1991) 93 Cr App R 54
2. Air India v. Nargesh Meerza, (1981) 4 SCC 335 4
3. Amar Singh v. K.S. Badalia, (1965) 2 Cri LJ 83 14
4. Article 110, cl. 3, Constitution of Indiana 11
5. Article 122, cl. 1, Constitution of Indiana 10
6. Ashok Kumar Jain v. State of Maharashtra, 1986 Cri LJ 1987 16
7. Bannari Amman Sugar Ltd. v. CTO, (2005) 1 SCC 625 7
8. Bharat Bank Ltd. v. Employees, AIR 1950 SC 188; 1
9. Binoy Viswam v. Union of India, (2017) 7 SCC 59 4
10. Biswambhar Singh v. State of Orissa, 1954 SCR 842 4
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11. Board of Trustees of the Port of Bombay v. Dilip Kumar 14
Raghavendranath Nadkarni, (1983) 1 SCC 124 : AIR 1983 SC 109
12. Board of Trustees of the Port of Bombay v. Dilip Kumar 8
Raghavendranath Nandkarni, (1983) 1 SCC 124 : AIR 1983 SC 109
13. Dr. Subramanian Swamy v. Union of India, (2016) 7 SCC 221 14
14. Durga Prasad Choudhry v. State, 1991 SCC OnLine Raj 209 15
15. Durga Shankar v. Raghu Raj, AIR 1954 SC 520 1
16. Fertilizer Corpn. Kamagar Union v. Union of India, (1981) 1 SCC 568 : 6
AIR 1981 SC 344
17. Fowler v. Padget, (1898) 7 TLR 509 : 101 ER 1103 22
18. Francis Coralie Mullin v. Union Territory Delhi, Adminstrator, (1981) 1 8
SCC 608 : AIR 1981 SC 746
19. G. Narasimhan v. T.V. Chokkappa, (1972) 2 SCC 680 12
20. Ganga Retreat & Towers Ltd. v. State of Rajasthan, (2003) 12 SCC 91 1
21. Giri V.V. v. Dorasuri, AIR 1959 SC 1318 7
22. In re, Munslow, [1895] 1 Q.B. 758 15
23. In re, S.K. Sundaram, (2001) 2 SCC 171 16
24. Jamshed Wadia v. State of Mumbai, (2004) 3 SCC 214 1
25. Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360 9
26. Justice K.S. Puttaswamy (Retd.) & Anr v. Union of India & Ors, (2017) 22
178 AIC 1 (SC): (2017) 174 ALR 877 : (2017) 4 KLT 1 : (2017) 10
SCC 1 : AIR 2017 SC 4161; Nirmalkumar Bagherwal v. Minal
Bagherwal, 2013
27. K.M. Mathew v. K.A. Abraham, 1998 Cri LJ 327 (Ker) 16
28. K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1 8
29. Kerala SEB v. Kurien E. Kalathil, (2000) 6 SCC 293 1
30. Konath Madhavi Amma v. S.M. Shereif, 1985 Cri LJ 1496 (Ker) 16
31. Liberty Media Holdings, LLC v. Does 1-59 22
32. M.P. Narayan Pillai v. M.P. Chacko, 1986 Cri LJ 2002 (Kerala) 14
33. Mahendra Singh v. State of U.P., 1982 Cri LJ 156 (All) 15
34. Mehmood Nayar Azam v. State of Chhatisgarh, (2012) 8 SCC 1 14
35. Mohd. Saeed Siddiqui v. State of UP., (2014) 11 SCC 415 : AIR 2014 11
SC 2051
36. N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196 1
37. Narottamdas v. Maganbhai, 1984 Cri LJ 1790 15
38. Nasscom v. Ajay Sood & Ors, (2005) 119 DLT 596, (2005) 30 PTC 437 23
Del
39. Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 9
40. P.B. Roy v. Union of India, (1972) 3 SCC 432 4
41. Parmanand Katara v. Union of India, (1989) 4 SCC 286 9
42. Public Prosecutor v. Muhammad Nuzaihan Bin Kamal Luddain, [1999] 22
3 SLR(R) 653
43. PUCL v. Union of India, (2013) 2 SCC 688 5
44. Pune Citibank Mphasis BPO Fraud, 2005 21
45. R. K. Jain v. Union of India & Anr, (2013) 14 SCC 794: (2013) 4 Bom 23
CR 76
46. R.C. Cooper v. Union of India, (1970) 1 SCC 248 : AIR 1970 SC 564 4
47. R.K. Garg v. Union of India, (1981) 4 SCC 675 : AIR 1981 SC 2138 4
48. R.K. Anand v. Delhi High Court, (2009) 8 SCC 106 14
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49. R.K. Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538 4
50. Radiological and Imaging Association v. Union of India, (2011) 113 8
Bom LR 3107
51. Ram Jawaya v. State of Punjab, (1955) 2 SCR 225 7
52. Re-Special Courts Bill, (1979) 1 SCC 380 : AIR 1979 SC 478 4
53. Rodaro v. Royal Bank of Canada, (2000) OJ 272 13
54. S. Chawdhury v. H.M. Jadwet, AIR 1968 Cal 266 13
55. S Nihal Singh v. Arjan Das, 1983 Cri LJ 777 (Del) 15
56. Saghir Ahmad v. State of U.P., (1955) 1 SCR 707 6
57. Sahib Singh Mehra v. State Of U.P., AIR 1965 SC 1451 12
58. Secretary NCERT v. Dr. P.D. Bhatnagar, 1980 (5) R Cr C 393 12
59. Sewak Ram Sobhani v. R.K. Karanjiya, (1981) 3 SCC 208 : AIR 1981 15
SC 1514
60. Sodhi Gurbachan Singh v. Babu Ram, AIR 1969 Punj 201 15
61. Soni Vallabhdas Liladhar v. Asstt. Collector of Customs, (1965) 3 SCR 20
854 : 1965 Cri LJ 490 : AIR 1965 SC 481
62. State of A.P v. McDowell & Co., (1996) 3 SCC 709 7
63. State of Andhra Pradesh v. McDowell, (1996) 3 SCC 709 4
64. State of Gujarat v. Bilal Ismail Abdul Majid Sujela, R/CC/1/2011 17
65. State of Maharashtra v. Prabhakar Pandurang Sanzgiri, AIR 1966 SC 8
424
66. Sundara Pandyan v. Viswanathan, 1986 Cri LJ 1181 15
67. Suraj Mall v. A.V. Viswanath, AIR 1954 SC 545 4
68. Susanta v. State of W.B., 1983 Cri LJ 772 13
69. Syed Asifuddin & Ors v. The State of Andhra Pradesh, (2006) 1 ALD 22
(Cri) 96, 2005 Cri LJ 4314
70. Synthetics and Chemicals Ltd. v. State of U.P., (1990) 1 SCC 109, at 8
531
71. Synthetics and Chemicals Ltd. v. State of U.P., (1990) 1 SCC 109, at 8
89
72. Uma Khurana v. Live India, WP (Crl.) No. 1175/2007) 17
73. Veeda v. Yusuf, 1966 Cri LJ 1489 (SC) 15
74. Vidya Verma v. Shiv Narain Verma, (1955) 2 SCR 983 8
75. Vijay Govind v. State & Anr 22
76. Vijay Shekhar v. Union Of India, (2004) 4 SCC 666 17
77. Violet Wapsore v Maureen , 1970 Mad LW (Cr) 4 15
[B] STATUTES
1. Janaadhaar Act, 2016.
2. Constitution of Indiana, 1950.
3. Information Technology Act, 2000.
4. Indian Penal Code, 1860.
5. The Indian Evidence Act, 1872.
[C] BOOKS
1. VAKUL SHARMA, INFORMATION TECHNOLOGY: LAW & PRACTICE,
(Universal Law Publishing Co, 3rd ed. 2013).
STATEMENT OF JURISDICTION
The Hon'ble Supreme Court of Indiana has jurisdiction to hear the matters under
Art. 136 and 139A of the Constitution of Indiana, 1950.
“Art.136. Special leave to appeal by the Supreme Court:
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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 Indistan
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.”
“Art.139-A. Transfer of certain cases
1. Where cases involving the same or substantially the same questions of law are
pending before the Supreme Court and one or more High courts or before two
or more High Courts and the Supreme Court is satisfied on its own motion or
on an application made by the Attorney-General of India or by a party to any
such case that such questions are substantial questions of general
importance, the Supreme Court may withdraw the case or cases pending
before the High Court or the High Courts and dispose of all the cases itself:
Provided that the Supreme Court may after determining the said questions of
law return any case so withdrawn together with a copy of its judgement on
such questions to the High Court from which the case has been withdrawn,
and the High Court, shall on receipt thereof, proceed to dispose of the case in
conformity with such judgement.
2. The Supreme Court may, if it deems it expedient so to do for the ends of
justice, transfer any case, appeal or other proceedings pending before any
High Court to any other High Court.”
STATEMENT OF FACTS
The Union Of Indiana, is a democratic Country located in the South Asian Region of
the world. Earlier, various identity proofs like driving license, voter id and others were
required by the citizens of Indiana for access to Government benefits. The Janaadhaar
Project initiated in 2009 envisaged as a biometric based unique identity number,
which was thought to be a more reliable Identity proof.
The Janaadhaar Act passed by the Parliament in 2016, allowed Janaadhaar to be
used for authentication purposes by all public and private bodies. Under the provisions
of the act, it was made mandatory to register and possess Janaadhaar number for not
only government services and to avail benefits of schemes, but also for filing of income
tax returns and applying for PAN. The main aim for this policy was to check the
leakage in Government schemes and to prevent corruption. For the purposes of
collecting the information for identification and storing it in the Central Identities Data
Repository, the Unique Identification Authority of Indiana (UIDAI) was set up, which
was made responsible for the operation and maintenance of the Janaadhaar database,
and also for laying down the security protocols for the same.
First Trial Against Janaadhaar In The High Court Of Uttam Pradesh
Ms. Medha Singh, a citizen of Indiana filed a PIL challenging the policy of the
mandatory Janaadhaar cards, and raised contentions for the same to be
unconstitutional. She stated that the collection of data without proper safeguards,
violated the right to life, privacy and personal liberty, enshrined under Article 21 of the
Constitution of Indiana. A specific incident of leakage of data from the Janaadhaar
database, also signified on the incompetency of the UIDAI security system. It was also
mentioned by the Appellant, that making Janaadhaar mandatory for Govt. benefits
which the citizens were entitled to, by law makes it questionable.
It was also contended that Janaadhaar, which was made mandatory for filing of tax
returns and applying for PAN, in 2017 interferes with a citizen's fundamental right to
equality and their right to practice any profession, trade or business which are
enshrined in Articles 14 and 19 (1)(g) respectively.The Janaadhaar Act was passed as
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a money bill, and Ms. Medha, in her PIL has also contended that Janaadhaar does meet
the constitutional requirements of money bill mentioned in Article 110, and hence is
unconstitutional.
The High Court of Uttam Pradesh held that the Janaadhaar scheme and act was
invalid and unconstitutional and gave the verdict in the favour of the Appellant, as also
there was no effective security system of the UIDAI. The Govt. has moved to the
Supreme Court challenging the judgement of the High Court of Uttam Pradesh.
The Sting Operation Conducted By News Network 24
While the appeal in the Janaadhaar issue was pending, Nalin Mishra, a journalist of
News Network 24, conducted a sting operation on UDIAI, claiming that it was possible
to obtain two Janaadhaar cards, with the same set of biometrics, questioning the
authenticity of the security system of UIDAI. The published report stated that it was
not safe to link anything with Janaadhaar, on which UIDAI served a defamation notice
against the News Agency, claiming the sting operation to be fake and that the report
led to a trial by media. The News Agency on the other side, claimed the operation to
be authentic, and published in public interest and welfare.
The Instance Of Two Students Hacking Into The Uidai Server
Students of Indiana University, namely Aman Srivastava and Tanya Kumari hacked
the UIDAI server, and extracted data. By gaining access through the Digital India e-
hospital initiative of Ministry of IT, the students sent verification requests to the UIDAI
database for their own app. UIDAI gave the data permission to the access since it
came from the e-hospital system. A FIR was filed against the students, and a case of
Cyber Crime under the IT Act was filed against the students for hacking into the server
and leaking the data of more than 50,000 individuals. The students argued that their
only intention was to prove that the UIDAI servers were not equipped enough to
protect the data.
Since the public of Indiana was upset by the easy leakage of details, the Supreme
Court sensing the urgency of the matter suomoto took cognizance of all the cases and
clubbed them together, posted for hearing on 23rd March, 2018.
STATEMENT OF ISSUES
~ ISSUE I ~
WHETHER THE CURRENT PETITION IS MAINTAINABLE BEFORE THE HON'BLE
SUPREME COURT.
~ ISSUE II ~
WHETHER THE JANAADHAAR ACT, 2016 IS IN VIOLATION OF THE
CONSTITUTION OF INDIANA, 1950.
~ ISSUE III ~
WHETHER THE STING OPERATION CONDUCTED BY NEWS NETWORK 24 LED TO
DEFEMATION.
~ ISSUE IV ~
WHETHER THE ACTS OF AMAN SRIVASTAVA AND TANYA KUMARI AMOUNT TO
CYBERCRIME UNDER THE IT ACT, 2000.
SUMMARY OF ARGUMENTS
ISSUE I: WHETHER THE CURRENT PETITION IS MAINTAINABLE BEFORE THE
HON'BLE SUPREME COURT.
It is humbly contended before this Hon'ble Court that the current petition is
maintainable before the Supreme Court. It is so because the appellants have a locus
standi and this is a special and extraordinary circumstance.
ISSUE II: WHETHER THE JANAADHAAR, 2016 IS IN VIOLATION OF THE
CONSTITUTION OF INDIANA, 1950.
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It is humbly contended that the Janaadhaar Act, 2016 is not in contravention of the
Articles 14, 19, 21 and 110 of the Constitution of indiana, 1950. This act has been
enacted for the benefits of the citizens. It has no intent of depriving the citizens of
their rights guaranteed under the Constitution. It is also contended that the
Janaadhaar Act, 1960 is a money bill since it satisfies all the conditions of the same as
enumerated under Article 110.
ISSUE III: WHETHER THE STING OPERATION CONDUCTED BY NEWS NETWORK
24 LED TO DEFEMATION OF UIDAI
It is humbly contended that UIDAI is an identifiable Govt. Organization, which was
defamed by the Sting Operaion Report published by News Network 24. It is also
contended that the sting operation is not a valid eveidence, hat can prove the
authenticity of the ssecurity system of UIDAI.
ISSUE IV: WHETHER THE ACTS OF AMAN SRIVASTAVA AND TANYA KUMARI
AMOUNT TO CYBERCRIME UNDER THE IT ACT, 2000.
It is humbly contended that the acts of Aman Srivastva and Tanya Kumari amount
to cybercrime under the IT Act, 2000. They have hacked into the e-hospital initiative
and gained unauthorised access to the UIDAI database. There are adequate provisions
that ensure the protection of the information under the UIDAI database. They have
breached the provisions of law under the IT Act. Therefore, the acts of the students
amounts to cybercrime under the IT Act, 2000.
ARGUMENTS ADVANCED
ISSUE I : WHETHER THE CURRENT PETITION IS MAINTAINABLE BEFORE THE
HON'BLE SUPREME COURT
It is contended that the present petition is maintainable under Art. 136 of the
Constitution of Indiana. This contention is substantiated by the way of a three-fold
argument: the Supreme Court has jurisdiction under article 136 [1.1]; the appellants
have locus standi [1.2]; extraordinary and special circumstances attract the
discreationary power of the supreme court [1.3].
[1.1] THE SUPREME COURT HAS JURISDICTION UNDER ARTICLE 136.
Art. 136 (1) empowers the Supreme Court to grant, in its discretion, special leave
to appeal from any judgment, decree, determination or order passed or made by any
court or tribunal.1 It confers a special jurisdiction on the Supreme Court. It vests the
Supreme Court with plenary jurisdiction in the matter of entertaining and granting
appeals, by the way of special leave, against any kind of judgment made by any court
in any matter and these powers can be exercised irrespective of the specific provisions
for appeal contained in the Constitution or other laws.2 Thus, it is not subject to the
requirement of exhaustion of local remedies.3
In the current legal scenario, the appellants, specifically UIDAI have been subjected
to allegations of not having an authentic security system and leaking the public data,
and that the provisions of the Janaadhaar Act are violative of the Fundamental Rights
that are enshrined under Article 14, 19 and 21 of the Constitution of Indiana, and is
thus unconstitutional. Therefore, the matter falls within the discretionary power of the
Court and thus, has jurisdiction to hear the said matter.
[1.2] THE APPELLANTS HAVE LOCUS STANDI.
The Supreme Court in various cases has established that an aggrieved party, which
has suffered at the previous or lower court or has had a decision against the general
interest has locus standi to file an appeal by the way of special leave, against the
judgment passed by the High Court.
In the current petition, the stand of UIDAI has been adversely affected by the
decision of the High court, as the judgement clearly mentioned that there was no
explicit machinery to keep a close and strict check to prevent the hacking and misuse
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of information given by the public.4 As per the judgement of the High Court, it was
also held that the Janaadhaar Act was violative of the fundamental rights and was held
unconstitutional. As justice has not been served, because quick and unreasonable
decision has been given by the High Court, the appellant, UIDAI, has a locus standi, in
the said matter.
[1.3] EXTRAORDINARY AND SPECIAL CIRCUMSTANCES ATTRACT THE
DISCREATIONARY POWERS OF THE SUPREME COURT
It is contended that this petition is maintainable as the Supreme Court must
adjudicate upon a substantial question of law [1.3.1]; and this is a circumstance of
grave miscarriage of justice [1.3.2]
[1.3.1] There is a substantial question of law
Special Leave is granted in circumstances when there is a substantial question of
law which is of public importance, thus, is required to be adjudicated upon. In the
current appeal, the government has given a thoughtless decision as The Janaadhaar
Act has been enacted to provide for, as a good governance, efficient, transparent and
targeted delivery of subsidies, benefits and services. This Janaadhaar scheme is of
great value and importance to the public and in their best interest.
[1.3.2] Grave miscarriage of justice has taken place
The court grants appeal, in circumstances where grave injustice has been caused
and that the case in question presents features of sufficient gravity to warrant a review
of the decision appealed.5 Art. 136 has been given the overriding power to grant
special leave against the judgements provided by the lower judiciary to ensure that
Fundamental Rights conferred upon citizens are in no manner affected and hence,
justice is served.6 In this case, the High Court has held that the Janaadhaar Act and
scheme is invalid and is not an effective machinery.7 This Janaadhaar scheme provides
financial benefits and ensures security of information to the citizens. The High Court
has not decided carefully in invalidating the Janaadhaar scheme altogether. This act
provides benefits and subsidies to the citizens, which is of extreme importance in
Indiana as this prevents corruption and diversion of public resources to those who are
ineligible. This schemes philosophy is ‘Zero Tolerance For Corruption' and corruption
involves miscarriage of justice.8
Therefore, the instant case is an extraordinary and special circumstance, which
involves a substantial question of law and grave miscarriage of justice.
ISSUE II: WHETHER THE JAANADHAAR ACT, 2016 IS IN VIOLATION OF THE
CONSTITUTION OF INDIANA, 1950
It is submitted before this Hon'ble Supreme Court that the Janaadhaar act of 2016
does not violate the rights guaranteed under the Constitution of Indiana as, [2.1] that
Article 14 is not violated by the mandatory nature of the Act, [2.2] the mandatory
linking of Janaadhaar Number with PAN doesn't infringe articles 19(1)(g) of the
Constitution, [2.3] the right to privacy under Article 21 of the Constitution is not
violated by the mandatory nature of the Act, [2.4] The Janaadhaar Act has been
passed in compliance with relevant provisions of the Constitution.
[2.1] ARTICLE 14 IS NOT VIOLATED BY THE MANDATORY NATURE OF THE ACT.
Article 14 of the Constitution guarantees equality before law and equal protection of
laws to all within the territory of Indiana.9 An enactment can be struck down as
violative of Article 14 of the Constitution only if it is violative of the equality clause or
equal protection clause enshrined.10 Article 14 does not prevent the legislature from
introducing a reform gradually according to the exigencies of the situation.11 The
Legislature is free to recognize the most urgent needs to be addressed, and can
discriminate reasonably to the extent require.12
If a statute creates a classification, either expressly or by implication, such
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classification can be challenged as discriminatory or arbitrary on two grounds- i) the
classification not founded on an intelligible differentia that distinguishes persons or
things grouped together from those left out of the group,13 or ii) the differentia lacks a
reasonable nexus with the object sought to be achieved by the impugned legislative or
executive action.14
[2.1.1] The classification is founded on basis of intelligible differentia
A group that dissents from an accepted opinion cannot be considered a class of its
own.15 Section 7 stipulates conditional authentication of the Janaadhaar Card, the
proviso to this Section also mandates provision of alternative means of identification.
Section 3 of the Act ‘entitles' every resident to obtain a Janaadhaar card. It is
contended that the Act does not create any classification between Janaadhaar Card
holders and non-Janaadhaar Card holders, nor does it discriminate against the section
of the population, expressly or impliedly. Those who do not possess a Janaadhaar Card
are not prevented from accessing social service schemes. Alternate means can be used
by the dissenting class to access government benefits, thereby not violating Article 14.
[2.1.2] The differentia has a reasonable nexus with the object attached
Section 5 of the Act mandates that priority in enrolment should be given to women,
children, senior citizens, and unskilled and unorganized workers, amongst others.
Additionally, Regulation 6 of the Janaadhaar (Enrolment and Update) Regulations,
2016 makes a special provision for enrolment of those with biometric exceptions. The
Act and its implementation is inclusive in nature as it provides for separate Janaadhaar
for minors and physically handicapped category. Therefore, the nature and purpose of
the Act is directed towards widening the coverage of social benefit schemes and does
not fall foul of Article 14 of the Constitution as it does not act as a means of social
exclusion.
This nature of Janaadhaar has also been affirmed by legislature. In the case of PUCL
v. Union of India16 recommended linking of Janaadhaar with Public Distribution System
(hereinafter referred to as PDS) and encouraged State Governments to adopt the
same. In that case, this Court has also endorsed bio-metric identification of homeless
persons so that the benefits like supply of food and kerosene oil available to persons
who are below poverty line can be extended to the correct beneficiaries.
It is submitted that the provisions of Janaadhaar Act, 2016 is constitutionally valid
as it upholds the right to equality of the people of Indiana by creating a reasonable
differentia and is not arbitrary in nature.
[2.2] THE MANDATORY LINKING OF JANAADHAAR NUMBER WITH PAN
DOESN'T INFRINGE ARTICLES 19(1)(G) OF THE CONSTITUTION
It is submitted before the Hon'ble Court that all the subsequent legislations which
make it mandatory to link Janaadhaar with PAN are constitutionally valid as [2.2.1] it
is in consonance with Article 19(1)(g) of Constitution, [2.2.2] it comes under the
ambit of reasonable restriction under Article 19(6).
[2.2.1] It is in consonance with Article 19(1)(g) of Constitution
Article 19(1)(g) guarantees every citizen to the right to pursue or carry on
occupation of his own choice17 and it aims to protect individuals from state action that
may restrict and put constrains on their practice of earning a livelihood.18 The article,
in its widest understanding extends to practice of any profession, trade, occupation
and business and guarantees to include every avenue and modes through which a
person earns his livelihood. However, the state is empowered to make laws and
impose restrictions on the same, if in public interest.
Amendment to the Income Tax Act, inserting section 139AA, mandates linking of
Janaadhaar to the Permanent Account Number, which is a mandatory requirement for
filing tax returns, insurance and registering bank accounts.
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It is contended that, the aim of the Janaadhaar Act is good governance and
transparency. The mandatory linking of bank accounts to Janaadhaar under PMLA has
been a crucial step to curb black money. It is asserted that for achieving the objective
of one PAN to one assesse, uniqueness must be maintained. It is achieved by
conducting a de-duplication check on already existing allotted PAN against the data
furnished by the new applicant. Under the existing system of PAN only demographic
data is captured. De-duplication process is carried out using a Phonetic Algorithm
whereby a Phonetic PAN (PPAN) is created in respect of each applicant using the data
of applicant's name, father's name, date of birth, gender and status. By comparison of
newly generated PPAN with existing set of PPANs of all assesses, duplicate check is
carried out and it is ensured that there is no discrepancy in the allotment of a PAN.
Due to prevalence of common names and large number of PAN holders, the
demographic way of de-duplication is not fool proof and leads to issuance of multiple
PANs to one person or one PAN number to multiple people. Therefore, this will have a
risk of diversion of income of person into several PAN's resulting in tax evasion and
wrong aggregation and assessment of incomes of several people as one taxable entity.
Also, at present, for entering into financial/business transactions, persons have
option to quote their PAN or Janaadhaar or passport number or driving license or any
other proof of identity. However, there is no mechanism/system at present to connect
the data available with each of these independent proofs of ID.19 It is contended that
this interconnecting of data bases is important curb black money, corruption, fraud
and widening of tax base.
[2.2.2] It comes under the ambit of reasonable restriction under Article 19(6).
Article 19(6) of the Constitution of Indiana vests the State with the power to
impose reasonable restrictions on the exercise of the right conferred by the
aforementioned sub clause in the interests of the general public.20 The restriction
imposed aforementioned, stands on grounds of reasonableness under Article 19(6).
Reasonableness of restriction is to be determined in an objective manner and shall be
seen from the point of view of public interest and not from the standpoint of the
interests of the person upon whom such restrictions are imposed.21 A restrain on trade
cannot be termed as unreasonable merely on grounds of its harshness.22 Furthermore,
a restriction cannot be held unreasonable merely because the object can be achieved
by an alternative scheme.23 Mere allegation of unreasonableness is not enough to
strike down an enactment.24
The restriction imposed aforementioned, stand on grounds of reasonableness under
Article 19(6). Reasonableness of restriction is to be determined in an objective manner
and shall be seen from the point of view of public interest and not from the standpoint
of the interests of the person upon whom such restrictions are imposed.25 A restrain on
trade cannot be termed as unreasonable merely on grounds of its harshness.26
While the objective of the Act sees to achieve transparency and good governance,
the facilitating notifications comply with the provisions to establish the same, hence
being reasonable. The restriction is in public interest and have direct nexus with the
object sought to be achieved, therefore the restriction qualifies as reasonable
restriction under Article 19(6) and is a reasonable restriction.
[2.3] THE RIGHT TO PRIVACY UNDER ARTICLE 21 OF THE CONSTITUTION IS
VIOLATED BY THE MANDATORY NATURE OF THE ACT.
It is contended before the Hon'ble Supreme Court of Indiana that [2.3.1] the right
to privacy is not an absolute right guaranteed under Part III of the Constitution of
Indiana and [2.3.2] the Janaadhaar Act does not interfere with the concept of life and
personal liberty guaranteed under Article 21 Constitution.
[2.3.1] The right to privacy is not an absolute right guaranteed under the
Constitution
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It is humbly contended that the Right to Privacy is not an absolute right, despite
recognition of the right under Article 21 and other connected freedoms.27 It is subject
to certain reasonable restrictions. A right to privacy can be infringed only through
substantive due process in a fair, just and reasonable manner in order to fulfil a
compelling State interest.28 In order to limit the discretion exercised by the State in
this regard, the action must be i) sanctioned by law, ii) necessary in a democratic
society for a legitimate aim, iii) proportionate to the need of interference, and iv)
accompanied by procedural guarantees against abuse of such guarantees.29 The
ordinary restrictions that apply to Articles 14, 19, and 21 would also apply to a privacy
interest, depending on its origin.30
It is contended that the provisions of the Janaadhaar Act, 2016 meet the
reasonable restrictions on the right to privacy. By easing the entitlement process and
providing for social welfare in a more efficient manner, the State is merely furthering
the principles outlined in the Preamble and the Directive Principles of State Policy in
the Constitution. Therefore, the Act falls within the scope of a ‘compelling State
interest'.
Further, making use of certain demographic and biometric information in order to
improve identification mechanisms cannot be said to be an invasion of privacy,
especially when it is being carried out in a fair, just, and reasonable manner.31 A mere,
farfetched suspicion of misuse of data cannot be violative of a right to privacy.32 It can
be said that the Janaadhaar Act, 2012 proposes a modern social contract; in exchange
for certain data, the State provides better welfare mechanisms.
In the light of the aforementioned contentions, it is humbly submitted that Right to
Privacy is not an absolute right, and that the Janaadhaar Act, 2016 fits the bill of the
reasonable restrictions on such a right.
[2.3.2] The Act is not in violation of the right to life and personal liberty under
Article 21 of the Constitution.
Article 21 of the Constitution guarantees right to life33 which includes right to live
with human dignity34 and all those aspects which makes man's life meaningful,
complete and worth living.35 A number of unremunerated rights have been held to fall
within this article, such as right to life with dignity,36 right to earn a livelihood37 , right
to first aid and medical care38 , amongst others.
In consonance to this, prior to the Act, there were multiple documents that could be
used to verify identity. For example, the PAN Card applied only to income tax
assesses, the ration card acted only as an entitlement document for those families
wishing to obtain subsidized ration, the driver's license pertained only to those who
could drive, and a Below Poverty Line (BPL) certificate was simply reflective of an
income level. All these served only a limited purpose, and there was no single,
uniformly acceptable document that could act as a proof of identity, thereby increasing
access to healthcare, education, and other basic services equitable being the basic
necessities required for livelihood.
Further, the individual's right to choice is not affected as (s)he can choose in which
manner to identify himself/herself. In the presence of alternative means of
identification such as PAN, driver's license, voter ID, etc., the individual has the choice
of identification open to him.
Section 8 of the Act, Regulation 9 of the Janaadhaar (Enrolment and Update)
Regulations, 2016 and Regulation 6 of the Janaadhaar (Authentication) Regulations,
2016 ensure that the individual is informed of the nature of information that may be
shared upon authentication, the uses to which the information received during
authentication may be put by the requesting entity, alternatives to submission of
identity information of the requesting entity, nature of recipients with whom the
information is going to be shared and existence of a right of to access information.
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Thus the, Janaadhaar Act, 2016 does not violate the right to informed consent or the
right to continuous consent, as consent is taken at every stage and is free to revoke
consent before every authentication.39
Further, Article 21 is not infringed by the Act as it upholds dignity and choice of the
individual and respects the individual's right to consent. The Act provides for a
strategic policy tool that forwards social inclusion and public sector delivery reform.
The implementation of welfare schemes has for long been plagued by the problem of
‘duplicates' or identity theft. The Janaadhaar Card would ensure that the government
schemes reach the intended beneficiaries, with minimum leakage and enhanced
transparency. By harnessing information technology capabilities in an effective, safe,
and accountable manner, the Act envisages a revolution in the welfare delivery
systems.
Thus, on basis on aforementioned contentions, it is submitted that The Act does not
interfere with the concept of life and personal liberty under Article 21 of the
Constitution.
[2.4] THE JANAADHAAR ACT HAS BEEN PASSED IN COMPLIANCE WITH
RELEVANT PROVISIONS OF THE CONSTITUTION.
It is humbly contended the passage of the Janaadhaar Bill as a Money Bill was done
in accordance with the provisions of the Constitution as firstly, The Janaadhaar Bill
pertains to the category of Money Bills as per the Constitution and secondly, The
Discretion of the Speaker in determining the nature of a bill is final.
[2.4.1] The Janaadhaar Act pertains to the category of Money Bills as per the
Constitution
It is humbly contended that the determination of the Janaadhaar Act as a Money
Bill is justified. The Janaadhaar Act, 2016 aims at the greater inclusion of the citizens
to various welfare services run by the Government. The delivery of the various services
to the citizens requires the withdrawal of reserves from the Consolidated Funds of
India and the Janaadhaar Act, 2016 entitles every such recipient to have a Janaadhaar
Card.
The setting up of the UIDAI and the functioning of the various constituent agencies
under its supervision further required withdrawal of funds from with the Consolidated
Fund of Indiana. Janaadhaar Bill is concerned the linkage of Janaadhaar facility to
various welfare schemes for which money was withdrawn from the Consolidated Fund.
It is further contended that the core focus of the Janaadhaar Act, 2016 is on this
money which the government will be spending for the beneficiaries of the welfare
services.
The welfare schemes are incidental to the collection and imposition of the taxes, as
they are funded through the tax-payers money. Art.110(1)(g) provides that a Bill
whose subject matters are incidental to any of the provisions from 110(1)(a) to
Art.110(1)(f). The nature of the Bill thus makes it a Money Bill under the Definition
provided by the Constitution.
[2.4.2] The discretion of the speaker in determining the nature of a bill is final.
It is contended that the discretion of the Speaker of the House in determining the
nature of a bill is final as the Constitution of Indiana under article 122(1)40 provides
that the Courts are not supposed to inquire into proceedings of Parliament, even if
there is alleged irregularity of procedure.
The Article 110(3)41 provides if any question regarding the classification of a Bill
into Money Bill arises, the decision of the Speaker of the House shall be final. It
implies that the discretion of the Speaker is not open for judicial review by the Hon'ble
Supreme Court.
The discretion of the Speaker in the determination of the category of various Bills
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has been held to be beyond the purview of Judicial Review by this Hon'ble Supreme
Court time and again.
In Mohd. Saeed Siddiqui v. State of UP42 a three judge bench of the Supreme Court
was asked to determine the constitutionality of UP Lokayukta and UpLokayuktas
(Amendment) Act, 2012. The Amendment Act of 2012 was passed as a money bill, it
dealt with increasing the term of the Lokayukta or Up-Lokayukta from six years to
eight years or till the successor enters upon his oﬃce and altered the status quo of
ineligibility if appointment of the retires Lokayuktas and Uplokayuktas. The Appellants
approached the Supreme Court under Article 32 of the Constitution of India
challenging the speaker's certiﬁcation of the bill as ‘money bill'.43
The Supreme Court while dismissing the petitions held that ‘the question whether a
Bill is a Money Bill or not can be raised only in the State Legislative Assembly by a
member thereof when the Bill is pending in the State Legislature and before it
becomes an Act.’.
It is therefore submitted that the Janaadhaar Bill, 2012 was a Money Bill and its
passage as a money bill is beyond the purview of Judicial Review.
ISSUE III: WHETHER THE STING OPERATION CONDUCTED BY NEWS NETWORK
24 LED TO DEFAMATION OF UIDAI
It is humbly contended before this Hon'ble Court that the Sting Operation
conducted by News Network 24 against UIDAI is defamatory in nature as The
published report of the Sting Operation was defamatory [3.1], The Sting Operation
conducted by News Network 24 is not a valid Evidence to prove the authenticity of
UIDAI's Security System [3.2] and the suit of defamation does not violate the
freedom of press implicit under Article 19(1)(A) of the Constitution of Indiana [3.3].
[3.1] THE REPORT PUBLISHED BY NEWS NETWORK 24 IS DEFAMATORY.
Defamation, under the English Law, is crime only when it is committed by writing,
which includes printing, engraving or some similar process. The Indian Penal Code
makes no distinction between written and spoken defamation.
[3.1.1] UIDAI, as a Government Association can sue News Network 24 for
Defamation.
UIDAI, comes under the ambit of a company or an association, which can sue for
defamation, as per the Explanation 2, given under Section 499. [3.1.1.1] As per the
Explanation 2, of Section 499, given in the Indiana Penal Code, a company, an
association or a collection of persons can file a suit for defamation.
It is submitted before the Hon'ble Court that as per Explanation 2 of the Indiana
Penal Code,44 which talks about the Applicability and Scope of Section 499 of IPC, it is
clearly mentioned, that Defamation can be of a collection of persons, which is
necessarily an identifiable body, so that it is possible to comment on the definiteness
of the group of particular people. As far as the group can be identified, the defamation
of the same is possible.45
Where Explanation (2),46 is restored to the identity, of the company or the
association or the collection of persons, must be established so as to be relatable to
the defamatory words or imputations.47 Furthermore, it is the duty of this Hon'ble
Court to decide whether the said or published matter is defamatory in nature, and
whether the contents had actually harmed or affected the reputation of the
Organization.48
[3.1.1.1] The doctrine of “Expressio Unius Est Exclusio Alterius” is applicable
The Latin doctrine, “Expressio Unius Est Exclusio Alterius”49 , which simply means,
the expression of one thing is the exclusion of the other. Section 499 of the Indiana
Penal Code50 , explicitly talks about the reputation of a ‘person' which has been
adversely affected, by the publication or words of an individual or association. Nowhere
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in the legislature has it been mentioned, that the Government or the Government
associations shall be excluded from this privilege. The only mention that has been
made in the statute is, that of a person, which by Explanation 2, can also be a
collection of persons. As per the aforementioned phrase, the only expression that has
been made is that of an individual, or a person, and there has been no exclusion of the
Government or any association affiliated with it.
Going by the above explanation, it can be concluded that UIDAI, is an association,
formed and approved by the Government of Indiana for the execution and
implementation of the Janaadhaar Act. It is an identifiable set of people, who can be
accused and defamed. In the sting operation conducted, the credibility of UIDAI as an
association and data repository was questioned.
Since, UIDAI is answerable to all the allegations, questions and queries, it is an
organization of the Government, which is made by a set of people and identifiable in a
public scenario and can be easily related and declared to be connected to the report
that was published by the News Agency. Hence, it can be concluded, that UIDAI is an
identifiable association of the Government that can be defamed.
[3.1.2] The report published by News Network lead to the defamation of
UIDAI.
As per Section 499 of the Indiana Penal Code, the following are the three essential
ingredients of the offence of Defamation:-51
a) Making or publishing any imputation concerning any person [3.21.2.1].
b) Such imputation must have been made by words either spoken or intended to be
read or by signs or by visible representation [3.1.2.2]; and
c) Such imputation must have been made with the intent to harm or with
knowledge or belief that it will harm the reputation of the person concerned.52
[3.1.2.3]
[3.1.2.1] An imputation was published concerning UIDAI.
Communication of defamatory matter merely to the person defamed is not
‘publication'. When the defamatory matter is communicated to some person other
than the person defamed, then it amounts to ‘publication' of a defamatory
statement.53
The question whether an imputation or accusation is defamatory or not is a mixed
question of fact and law.54 Furthermore, any media report published on a pending trial
leads to a public opinion which is ethically incorrect.55 It is upon the discretion of this
Hon'ble Court to interpret the same. The law states that any derogatory statement or
article that is published and causes harm of reputation to an individual or an
organization is defamation.
The facts in the current case, simply state, that the report evaluated and assessed
by News Network 24 was published. Publishing of a material that is available to a third
party or the public is a necessary element that needs to be fulfilled, and the article
needs to be judged in its entirety to claim that the article was defamatory and
hampered the reputation of an individual or an association.56
In the facts of the present case, “the ‘report' claimed that”57 , signifies that the
report that had been drafted by the News Agency after the conduction of the sting
operation was published and made available to the public.
[3.1.2.2] The report published by The News Network was intended to be read
by the public.
It is submitted before this Hon'ble Court that defamation is a public wrong, even
though it is done to an individual. Individuals form part of the collective, which gives
rise to the community interest at large.58 A public wrong should not be interpreted as
a wrong that injures the public but as one that properly concerns the public as a
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whole.59 Without the individual, there will be no society. The purpose for which any law
is made is to protect the social interest. Laws relating to defamation protect the
reputation of the individual in the perception of public at large.60
A printer or publisher, whosoever has printed or published something and it has
floated in the market or at any place, where it is accessible to be read, impacted and
evaluated, makes a declaration under the Press and Registration Act, 1867, and is of
the clear intention, that the material so published, should be read by the public.61
However, the expression ‘intended to be read' only qualifies the term ‘by words' and
relates only to the mode, and manner of action.62
From the aforementioned, it can be concluded that, the reputation of an individual
or an association for that matter, is a matter of public interest, and creates a large
stake. Furthermore, when the News Agency drafted and published the report, their
intentions of the report being read by the public were clear and intended.
[3.1.2.3] The report was published with the belief and knowledge that it
would cause harm to the reputation of UIDAI.
The accused must have intended to publish the words, and must have published
the words, that are alleged to be defamatory.63 Intention on the part of the accused to
harm the reputation of the complainant, or knowledge or belief that the imputation will
harm his reputation is an essential element.64
The reputation of an individual is what neighbors say and think about the
individual,65 and the word harm in relation to defamation means imputation to an
individual's character made and expressed to others so as to lower him in their
estimation.66 The intention must be to harm the reputation of a person.67 All these are
essential necessities and tangents that need to be understood and acted upon, while a
suit for defamation is being adjudicated.
It is established law that Journalists do not enjoy any special privilege and have no
greater freedom than others to make any imputations or allegations sufficient to ruin
the reputation of another.68 Newspapers are like the proverbial watch dogs of national
interest and public welfare and may sometimes have to bark even on false alarm but
the alarm must be there.69 Further, whenever, it is found that the imputation was not
made in good faith70 , it would lead to Defamation. It is the duty of the editor to check
every report that is supplied, and publish only after the verification of the substance
and its consequences.71 Where prior knowledge of the consequences of the publication
of the article is already known, but still the defamatory article is published, the Editor
shall be held liable for the offence under Sec 499 of the IPC.72 Complaint was filed
against the journalist for publishing defamatory articles in Newspaper and was upheld
to be Defamation.73
It should be remembered that ‘publication' is a term of art in the law of defamation
which in legal parlance ordinarily means “communication”74 , of a defamatory matter
intentionally or by a negligent act. As any publication in the press has immense
impact on the minds of the readers, it is essential that persons responsible for
publishing anything in newspaper must take good and adequate care before
publishing anything which tends to harm the reputation of the person.
If the Newspaper openly attacks the morality, fame and reputation of complainant,
such publication is defamatory per se.75 The News Report Publication directly targeted
towards the Security System of UIDAI, and claimed it to be insufficient to record the
data that was being reserved in it. For any Government Organization, its security
system holds crucial importance and calling one, to be easily breached and not secure
is defamatory. Furthermore, the News Agency was aware of the fact, that the
published report would not only comment on the UIDAI as an association, but would
also hamper the belief of the people, in it, as an organization, which further
strengthens the argument that the News Agency was aware of the fact, that the report
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would target the reputation of UIDAI and harm the same, but still went on to publish
the same, leading to defamation.
Any Government set Organization, which collects and analyses the data collected by
the public, has the onus to make sure that the collected data is safe and secure. In a
situation where UIDAI, was already facing a tender spot at the case against Medha
Singh, the sting operation conducted by UIDAI and low security report published
hampered not only their reputation, but also shattered the belief of the people in that
organization.
[3.2] THE STING OPERATION CONDUCTED BY NEWS NETWORK 24 DOES NOT
HAVE EVIDENTIARY VALUE
Every liberty if left unchecked, can lead to disorder. Sting operations may be an
expression of freedom of press but carry an unavoidable duty to respect privacy of
others.
In Indiana, there are no specific laws governing sting operations and its stand on
entrapment and sting operations was explained by the Delhi High Court in the case
pertaining to a “Live India” sting operation.76 Post investigation, it was clarified that
the video was fabricated, and the sting operation was a mere stage play. Similarly, an
unconditional apology was sought from the journalists, who in pursuance of a sting
operation released warrants against imminent personalities.77
When Tape recording of people shows influence,78 the Supreme Court held that the
same video could not be produced and held as evidence in the court.
Furthermore, the Press Council of India in the Norms of Journalistic Conduct
provides guidelines for reporting of a sting operation. It provides that a newspaper
proposing to report a sting operation shall obtain a certificate from the person who
recorded or produced the same certifying that the operation is genuine and bonafide.
Great care and sensitivity should be exercised to avoid shocking or offending the
reader when the sting operation is reported through a print media as well as to ensure
that the sting operation itself is not completely outside the bounds of criminal law.
The sting Operation that was conducted by News Network 24 cannot be held as
valid evidence in the court, as it fails to prove the authenticity of the report that was
published. Furthermore, it also not an acceptable evidence under Section 64-B of the
Indiana Evidence Act, as no information has been provided of the method and the
instruments that were used during the sting operation.
It is an accepted fact, that obtaining permission might hinder the very essence of
the sting operation that needs to be executed, however, the news agency has failed to
perform in correspondence with the norms and guidelines that have been laid down by
the Press Council of Indiana. The operation and conclusion of this sting is “shrouded
with the cloud of doubts”, and hence cannot be a valid admissible evidence in the
Hon'ble Court.
Hence, as per the aforementioned arguments, it can be concluded that UIDAI, as an
association can sue News Network 24 for defamation, because of the sting operation
report that they had published. It is also observed that all the ingredients of
Defamation, as mentioned under S. 499 of IPC are fulfilled and UIDAI has been
defamed by the report published by the News Agency.
ISSUE IV : WHETHER THE ACTIONS OF AMAN SRIVASTAVA AND TANYA
KUMARI AMOUNT TO CYBERCRIME UNDER THE IT ACT, 2000
It is contended that the act of hacking into the UIDAI server by the students was
unlawful and unreasonable. The acts of the students amount to cybercrime under the
Information Technology Act, 2000. The present contention is two fold firstly that
UIDAI has taken adequate measures to ensure the protection of data. [4.1]; and The
acts of Aman Srivastava and Tanya Kumari are acts of cybercrime chargeable under
the IT Act, 2000 [4.2]
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[4.1] UIDAI HAS TAKEN ADEQUATE MEASURES TO ENSURE THE PROTECTION

OF DATA
Chapter VI and VII of the Jaanadhaar act, 2016 deal with Protection of Data &
Offences and Penalties for breach of any such data. The UIDAI adopts and implements
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.79 The act
provides explicit provisions, that have been dealt with in dept ahead, to secure the
personal data of individuals and any penalties for the same.
[4.1.1] Preventive provisions have been laid down against misuse of
JanaadhAar Database.
The contention of the Appellant that there could be misuse of the Janaadhaar
Database by the government holds no ground as adequate provisions have been
provided under the Janaadhaar Act against its misuse. Further, the Project has been
brought as per ‘procedure established by law' and its objectives are just, fair and
reasonable and it is the duty of the government to ensure that no misuse of the data
collected under the scheme takes place. These adequate provisions are:
As per section 14 of the IT Act, any electronic data is deemed to be a secure one
from the time of its verification. In the current case, it means that once an individual
has provided UIDAI with its personal sensitive information and obtains the Janaadhaar
unique number, it becomes an electronic record, it is deemed to become secure.
Section 23 of the Janaadhaar Act, makes it a function of the Authority to appoint
Registrars by notifications to secure the information. In the current case, the
Janaadhaar officials have appointed UIDAI to do the same, which is a competent
organization to keep the data of the citizens of Indiana safe and secure
[4.1.1.2] Provisions under the Janaadhaar Act, 2016
Moreover, Section 29(1) of the Janaadhaar Act strictly provides that no core
biometric information, collected or created under this Act, shall be shared with anyone
for any reason whatsoever; or used for any purpose other than generation of
Janaadhaar numbers and authentication under this Act.
Therefore, it is submitted that, the legislature has taken all possible care and
concern while drafting the Janaadhaar Act, 2016 and IT Act, 2000 as it accurately has
covered an exhaustive list of preventive provisions.
[4.1.2] Penal provisions for Unauthorised Access
It is contended that penal provisions have been provided for in the IT Act and the
Janaadhaar Act for persons who access data of computer or computer systems without
any authoritization. These provisions have been enumerated below.
Unauthorised sharing of sensitive personal information attracts liability to
compensate under the Information and Technology Act, 2000.80 The Appellant's
concern that the leaked data from UIDAI database can be misused by any person, has
also been made good by way of Section 43 of the IT Act which deals with offenses by
persons for damages to computer systems. Provisions for penalty for unauthorised
access to the Janaadhaar database like hacking, downloading, copying, extracting,
introducing any virus or other computer contanimation, damaging, etc have been
provided.81
[4.1.2.2] Provisions under the Janaadhaar Act, 2016.
Section 29 of Janaadhaar Act 2016, deals with restrictions on sharing Janaadhaar
information. The students gained unauthorised access via the portal of the e-hospital,
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and obtained the data, pretending to be an authorised person or association to do the
same.82 They also secured access to the Central Identities Data Repository and stole
the computer source data,83 and tampered the same to use the data of the Central
Identities Data Repository.84
These acts committed by the students, falling under the Janaadhaar Act, 2016 and
IT Act, 2000, of hacking into UIDAI server and leaking private information about the
citizens of Indiana makes them punishable with stipulated imprisonment as well as
liable to pay the fine. The defence of good intentions, public interest and social welfare
shall not be applicable in the case of the students, as the act of hacking was illegal
and unethical and deems punishment.
[4.2] THE ACTS OF AMAN SRIVASTAVA AND TANYA KUMARI ARE ACTS OF
CYBERCRIME CHARGABLE UNDER IT ACT, 2000
It is contended that the student's acts of leaking the private information of
numerous individuals, has been done with the intent to defraud the government,85
merely for the purpose of creating an app.86 There are stringent features that have
been implemented in the Janaadhaar system in order to prevent acts of unauthorised
access to the private data.
The legislative intent behind Janaadhaar electronic was to facilitate efficient
government-citizen interface by giving due legal recognition to electronic records,
which has also been legislated and provided under the Section 4 of The Information
and Technology Act, 2000 (hereinafter referred to as, The IT Act). However, these
students have dishonestly gained access for their app and made it appear as if the
official portal sought the access..87 These acts of Tanya Kumari and Aman Srivastava
violate the provisions of The IT Act, 2000 and are punishable with fine and
imprisonment.
[4.2.1] The students have commited offences under the Information &
Technology Act, 2000
The students are charged under Section 43(a) and (b) which provide for penalties
for damage done to a computer system, if any person without the permission of the
owner accesses, such computer system. The students are also charged under Section
65 which enumerates the offence of tampering with computer source documents and
under 66 for hacking of computer systems. In these cases the presence of mens rea is
essential, which makes the acts and allegations of the students imperative and a
logical inference.
Section 70 provides protection to the data stored in the protected governmental
systems Section 71 makes misrepresentation to, or supress any material fact
punishable.
It is contended that the detailed understanding of each offence is imperative for
better understanding the crimes that have been committed by the students.
[4.2.1.1] Offence under Section 43 has been committed by the students.
Section 43 deals with unauthorised access to a computer system. Such
unauthorised access refers to manipulations with logical, arithmetical or memory
function resources of a computer system,88 and by the general rule, Any person found
guilty of contravening this section is liable to pay damages by way of compensation.
A. The students have unlawfully accessed the e-hospital computer system
Section 43(a) of the IT Act, makes accessing computer or computer system without
permission an offence. Access means gaining entry into instructing or communicating
with the logical, arithmetical or memory function resources of a computer, computer
system or computer network. In order to establish an unauthorised access it must be
proved that firstly, the computer performed a function as a consequence of gaining
access secondly, the access was unauthorised and lastly the person concerned knew
-----------------------------------------------------------------------------------------------------------------------------------------------------------
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that the access was unauthorised.89
In the instant case, the students have gained access to the data of UIDAI through
the Digital India e-hospital initiative of the Ministry of Electronics and Information
Technology. The students removed data from the UIDAI server where the computer
system gave them permission to access as a result of their verification requests. The
students were fully aware about their access being unauthorised as the act of hacking
was a well thought of action.90
B. The students have unlawfully extracted data from the UIDAI server.
Section 43(b) is an attempt by the legislature to introduce elements of copyright
protection in the digital medium. It protects data, computer databases from
unauthorised downloading, copying or extraction.91
The students have without permission pulled out data from the UIDAI server
without permission and extracted data from there for their own app and personal
benefit.92
Therefore, this makes it very clear that the students would be facing grave
consequences for their actions and they have committed offence under Section 43 of
the IT Act, 2000.93
[4.2.1.2] The students are guilty of offences under the IT Act
The students have committed many other offences coming under the IT Act, 2000
for which the intent to commit the act is a necessary requirement. These offences
include tampering with the database and hacking into their server.
A. The students are liable under Section 65 of the IT Act
Section 65 implies tampering with computer source documents and protects the
‘life cycle' of computer programmes.94
The students had the intention to misappropriate the computer data as they had
planned the entire tactic of hacking into the UIDAI database.
B. The students are liable under Section 66 of the IT Act
Section 66 deals with the computer related offences when a person dishonestly and
fraudulently does any act referred in section 43. Any person who causes a computer
resource to perform a function with dishonest or fraudulent intent to secure access,
knowing that the access that he intends to secure is unauthorised. The essential
ingredients to commit offence under section 66 is that the act needs to be committed
dishonestly95 and fraudulently96 and that there must be an unauthorised access to the
computer resource.
a. There is a requirement of mens rea97
This section requires there to be an intent to secure an access,98 knowing that the
access he intends to secure is unauthorized.99 This is the purpose of doing an act
forbidden by the criminal law without just cause or excuse. Computer related offence
involves mental act with destructive animus. The hackers maliciously sabotage
computers and gain access to details.
The students knew that gaining access to UIDAI database is illegal and unlawful,100
however they continued to do so under the pretext of using it from a government
initiative to make it look authorised and legitimate.101
b. Access to computer resource was unauthorised
It is the essence of this offence that the accused must cause tampering or stealing
of information residing in a computer resource which was operated by any person.
The access to private information of a huge number of people invades their privacy
and this has been prohibited by law. Their act involves invasion of right of privacy and
diminution of the value and utility of the information of the public residing in the
computer source102 .
It is submitted that the students have stolen and accessed the information provided
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-
by the UIDAI servers for the purpose of their own app103 which makes them guilty and
punishable under the Section 66 of the IT Act, 2000.
[4.2.1.2.3] The students are liable under Section 66D and Section 70 of the IT Act
Phishing is yet another kind of cheating for getting confidential information on the
false pretext and is covered under Section 66D of the Act.104
The students sent verification requests to UIDAI database under the pretence of
requests coming from e-hospital initiative and UIDAI gave permission to access
because the requests were coming from the e-hospital system.105
Section 70 specifically deals with protection of government networks and by virtue
of this section access is available only to authorised person. If any persons gains
access to protected systems shall be punished. Janaadhaar is a government project
and UIDAI is a government data repository, making the acts of the students further
punishable for hacking and stealing information from the government system.
Here, the students released and hacked into the information of millions of citizens,
knowing that such information was private and confidential, the courts are of the
opinion that there is no need to release information when no public interest lies.106
Therefore, it is submitted that Aman Srivastava and Tanya Kumari are guilty of their
actions of hacking into the UIDAI server for the establishment of their app and that
their actions were under no conditions that of a reasonable or prudent man.
PRAYER
Wherefore, in light of the Issues Raised, Authorities Cited and Arguments
Advanced, it is most humbly and respectfully requested that the Hon'ble Supreme
Court of Indiana be pleased to:
1. SET ASIDE the decision given by the High Court of Uttam Pradesh.
2. DECLARE that the Janaadhaar Act, 2016 is not violative of the Articles 14, 19, 21
and 110 of the Constitution of Indiana.
3. DECLARE that the Sting Operation Report was defamatory in nature.
4. HOLD the actions of Aman Srivastava and Tanya Kumari as unreasonable,
unjustified and unwarranted.
5. DECLARE that Aman Srivastava and Tanya Kumari are guilty under sections 43,
65, 66 and 70 of The IT Act.
AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience.
All of which is most humbly and respectfully submitted
S/d
COUNSELS FOR THE APPELLANTS
———
1 N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196; Bharat Bank Ltd. v. Employees, AIR 1950 SC 188.
2Jamshed Wadia v. State of Mumbai, (2004) 3 SCC 214, see also, Durga Shankar v. Raghu Raj, AIR 1954 SC
520.
3 Ganga Retreat & Towers Ltd. v. State of Rajasthan, (2003) 12 SCC 91, see also, Kerala SEB v. Kurien E.
Kalathil, (2000) 6 SCC 293
4 Moot Proposition, pg 3, para 7
5 Pritam Singh v. The State, AIR 1950 SC 169; Shivanand Baswanti v. Laxmi Textile Mills, (2008) 13 SCC 323.
6 Bharat Bank Ltd v. Employees, AIR 1950 SC 188.
7 Moot Proposition, Para No. 7.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
9 Article 14, Indiana Constitution.
10 State of Andhra Pradesh v. McDowell, (1996) 3 SCC 709.
11 Biswambhar Singh v. State of Orissa, 1954 SCR 842.
12 R.K. Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538.
13Suraj Mall v. A.V. Viswanath, AIR 1954 SC 545; R.K. Garg v. Union of India, (1981) 4 SCC 675 : AIR 1981 SC
2138; Re-Special Courts Bill, (1979) 1 SCC 380 : AIR 1979 SC 478; Air India v. Nargesh Meerza, (1981) 4 SCC
335 : AIR 1981 SC 1829; R.C. Cooper v. Union of India, (1970) 1 SCC 248 : AIR 1970 SC 564.
14 P.B. Roy v. Union of India, (1972) 3 SCC 432.
15 Binoy Viswam v. Union of India, (2017) 7 SCC 59.

16 PUCL v. Union of India, (2013) 2 SCC 688.
17 Fertilizer Corpn. Kamagar Union v. Union of India, (1981) 1 SCC 568 : AIR 1981 SC 344.
18 Saghir Ahmad v. State of U.P., (1955) 1 SCR 707.

19 A.P. Shah, Report of the Group of Experts on Privacy, Planning Commission (2012), 73.
20 Article19(6), Constitution of Indiana.
21 Bannari Amman Sugar Ltd. v. CTO (2005) 1 SCC 625.

22 Ram Jawaya v. State of Punjab, (1955) 2 SCR 225.
23 Giri V.V. v. Dorasuri, AIR 1959 SC 1318.
24 State of A.P v. McDowell & Co., (1996) 3 SCC 709.

25 Bannari Amman Sugar Ltd. v. CTO (2005) 1 SCC 625.
26 Ram Jawaya v. State of Punjab, (1955) 2 SCR 225.
27 K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1.
28 Supra at
29 Synthetics and Chemicals Ltd. v. State of U.P., (1990) 1 SCC 109, at 89.
30
Synthetics and Chemicals Ltd. v. State of U.P., (1990) 1 SCC 109, at 531.
31
Vidya Verma v. Shiv Narain Verma, (1955) 2 SCR 983.
32 Radiological and Imaging Association v. Union of India, (2011) 113 Bom LR 3107.
33 State of Maharashtra v. Prabhakar Pandurang Sanzgiri, AIR 1966 SC 424.
34 Francis Coralie Mullin v. Union Territory Delhi, Adminstrator, (1981) 1 SCC 608 : AIR 1981 SC 746
35Board of Trustees of the Port of Bombay v. Dilip Kumar Raghavendranath Nandkarni, (1983) 1 SCC 124 : AIR
1983 SC 109.
36
Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360.
37 Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545.
38 Parmanand Katara v. Union of India, (1989) 4 SCC 286.
39
Janaadhaar (Authentication) Regulations, 2016, Reg. 6.
40 Article 122, cl. 1, Constitution of Indiana.
41 Article 110, cl. 3, Constitution of Indiana.
42
Mohd. Saeed Siddiqui v. State of UP., (2014) 11 SCC 415 : AIR 2014 SC 2051.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
43Pratik Datta et al, Judicial Review and Money Bills, No. 192, National Institute of Public Finance and Policy
(Mar. 7, 2017) http://www.nipfp.org.in/media/medialibrary/2017/03/WP_2017_192.pdf.
44The Complete Supreme Court Criminal Digest, Volume 1, Indian Penal Code, 1860, by Surendra Malik, Page 621,
Para 3
45
Sahib Singh Mehra v. State Of U.P., AIR 1965 SC 1451
46 Section 499
47 G. Narasimhan v. T.V. Chokkappa, (1972) 2 SCC 680
48
Secretary NCERT v. Dr. P.D. Bhatnagar, 1980 (5) R Cr C 393
49
Rodaro v. Royal Bank of Canada, (2000) OJ 272
50 Section 499 of IPC
51
S Chawdhury v. H.M. Jadwet, AIR 1968 Cal 266
52
Susanta v. State of W.B., 1983 Cri LJ 772
53 Amar Singh v. K.S. Badalia, (1965) 2 Cri LJ 83
54
Secretary NCERT v. Dr. P.D. Bhatnagar, 1980 (5) R Cr C 393
55
R.K. Anand v. Delhi High Court, (2009) 8 SCC 106
56 M.P. Narayan Pillai v. M.P. Chacko, 1986 Cri LJ 2002 (Kerala)
57
Moot Proposition, Pg 4, Para 9
58
Board of Trustees of the Port of Bombay v. Dilip Kumar Raghavendranath Nadkarni, (1983) 1 SCC 124 : AIR
1983 SC 109; Mehmood Nayar Azam v. State of Chhatisgarh, (2012) 8 SCC 1.
59
Dr. Subramanian Swamy v. Union of India, (2016) 7 SCC 221.
60
Id.
61 S Nihal Singh v. Arjan Das, 1983 Cri LJ 777 (Del)
62 Sundara Pandyan v. Viswanathan, 1986 Cri LJ 1181
63
In re, Munslow, [1895] 1 Q.B. 758
64 Supra at Note 10
65 Narottamdas v. Maganbhai, 1984 Cri LJ 1790
66
Violet Wapsore v. Maureen, 1970 Mad LW (Cr) 4
67
Veeda v. Yusuf, 1966 Cri LJ 1489 (SC)
68 Sewak Ram Sobhani v. R.K. Karanjiya, (1981) 3 SCC 208 : AIR 1981 SC 1514
69
Durga Prasad Choudhry v. State, 1991 SCC OnLine Raj 209
70 Mahendra Singh v. State of U.P., 1982 Cri LJ 156 (All)
71 Sodhi Gurbachan Singh v. Babu Ram, AIR 1969 Punj 201
72
Ashok Kumar Jain v. State of Maharashtra, 1986 Cri LJ 1987 (Bom.)
73 K.M. Mathew v. K.A. Abraham, 1998 Cri LJ 327 (Ker)
74
In re, S.K. Sundaram, (2001) 2 SCC 171
75
Konath Madhavi Amma v. S.M. Shereif, 1985 Cri LJ 1496 (Ker)
76 Uma Khurana v. Live India, WP (Crl.) No.1175/2007)
77 Vijay Shekhar v. Union Of India, (2004) 4 SCC 666
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
78
State of Gujarat v. Bilal Ismail Abdul Majid Sujela, R/CC/1/2011
79 Section 28(2), Janaadhaar Act, 2016.
80 Secion 43A, Information and Technology Act, 2000.
81
Section 38, Janaadhaar Act, 2016.
82 Section 36 , Janaadhaar Act, 2016.
83
Section 38, Janaadhaar Act, 2016.
84 Section 39 (Penalty for Tampering with data in Central Identities Data Repository), Janaadhaar Act, 2016.
85Soni Vallabhdas Liladhar v. Asstt. Collector of Customs, (1965) 3 SCR 854 : 1965 Cri LJ 490 : AIR 1965 SC
481.
87
Moot Proposition, Para No. 10.
88VAKUL SHARMA, INFORMATION TECHNOLOGY: LAW & PRACTICE 117, (Universal Law Publishing Co, 3rd ed.
2013).
2013).
2013).
93 Pune Citibank Mphasis BPO Fraud, 2005.
94 Syed Asifuddin & Ors v. The State of Andhra Pradesh, (2006) 1 ALD (Cri) 96, 2005 Cri LJ 4314.
95 Section 24, Indiana Penal Code, 1860.
96 Section 25, Indiana Penal Code, 1860.
97 Fowler v. Padget, (1898) 7 TLR 509 : 101 ER 1103.
98 Liberty Media Holdings, LLC v. Does 1-59.
99 Vijay Govind v. State & Anr.
100
A. Shankar S/o. K. Achimuthu v. State rep. by Deputy Superintendent of Police, Cyber Crime Cell Crime
Branch CID, Crl. O.P. No. 6628 of 2010; R v. Whiteley, (1991) 93 Cr App R 54.
101 Public Prosecutor v. Muhammad Nuzaihan Bin Kamal Luddain, [1999] 3 SLR(R) 653.
102Justice K.S. Puttaswamy (Retd.) & Anr v. Union of India & Ors, (2017) 10 SCC 1: (2017) 178 AIC 1 (SC):
(2017) 174 ALR 877: (2017) 4 KLT 1: (2017) 10 SCC 1 : AIR 2017 SC 4161; Nirmalkumar Bagherwal v. Minal
Bagherwal, 2013.

104 Nasscom v. Ajay Sood & Ors, (2005) 119 DLT 596, (2005) 30 PTC 437 Del.
106 R.K. Jain v. Union of India & Anr, (2013) 14 SCC 794 : (2013) 4 Bom CR 76.
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
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or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.
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Page 1 Tuesday, January 07, 2020

11th Amity National Moot Lucknow, 2018

BEFORE THE HONOURABLE SUPREME COURT OF INDIANA

1. Notwithstanding anything in this Chapter, the Supreme Court may, in its

[4.1] UIDAI HAS TAKEN ADEQUATE MEASURES TO ENSURE THE PROTECTION

15 Binoy Viswam v. Union of India, (2017) 7 SCC 59.

18 Saghir Ahmad v. State of U.P., (1955) 1 SCR 707.

21 Bannari Amman Sugar Ltd. v. CTO (2005) 1 SCC 625.

24 State of A.P v. McDowell & Co., (1996) 3 SCC 709.

103 Moot Proposition, Para No. 10.

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