Memorial on Behalf of Petitioner
TEAM C 07 TEAM CODE – SMC-017 1ST PROF. N. R. MADHAVA MENON SAARC MOOTING COMPETITION, 2016
India Round 9th to 10th January, 2016
BEFORE THE HON’BLE SUPREME COURT OF INDISTAN In the matter of … Petitioner
Mr. X, Mr. Y and Ors.
Versus
Union of Indistan
… Respondent
Written Submissions on behalf of the Petitioner,
Counsel for the Petitioner. 1
Memorial on Behalf of Petitioner TABLE OF CONTENTS
Table of Contents………………………………………………………………………………….2 List of Abbreviation……………………………………………………………………………….4 List of Authorities…………………………………………………………………………………5 Cases Referred………………………………………………….........................................5 Books Referred……………………………………………………………………………6 Legal Databases…………………………………………………………………………...7 Lexicons…………………………………………………………………………………...7 Legislations………………………………………………………………………………..8 Conventions……………………………………………………………………………….8 Statement of Jurisdiction………………………………………….……………………………….9 Statement of Facts………………………………………………………………………………..10 Issues Presented………………………………………………………………………………….12 Summary of Pleading…………………………………………………………………………….13 Detailed Pleadings……………………………………………………….....................................14 I.
Whether there is any “right to privacy” guaranteed under our Constitution….14 [I.1] Development of Right to privacy in India…………………………………...…14 [I.2] Right to be let alone in conjunction to Foreign Cases………………………….15 [I.3] Privacy Jurisprudence from Past Indian Case Laws……………………………16 [I.4] CONCEPTION OF PRIVACY AS UNDERSTOOD FROM LEGISLATIVE ACTIONS…………………………………………………………………………….17 [1.5] The implementation of the UIDAI has breached the right to privacy of the citizens…………………………………………………………………………….…18 [I.5.i] No Data Protection Laws…………………………………………………19 [I.5.ii] Ultra-vires Scheme……………………………………………………….20 2
Memorial on Behalf of Petitioner [I.5.iii] UID compromises the bodily integrity of each of us by snatching away an intimate aspect of our physical identity……………………………………………...20 [I.5.iv] Similar Project in UK struck down………………………………………21
II.
Whether UIDAI has any Legal Basis? [II.1] Executive order not sufficient to set up an institution, without being passed from Legislature………………………………………………………………………...…22 [II.1.i] Limits of Executive power……………………………………………….22 [II.1.ii] Rules of Procedure and Conduct of Business in Lok Sabha.....................23 [II.1.iii] design faults in UIDAI…………………………………………………26 [II.1.iii] serious security concerns…………………………………………..……28
Prayer…………………………………………………………………………………………….29
3
Memorial on Behalf of Petitioner LIST OF ABBREVATIONS
AIR……………………………………………………………………….All India Report
Regd.........……………………………………………………………………Registered
Co……………………………………………………………………………...Company
Edn/Ed…………………………………………………………………………..Edition
ER……………………………………………………………………...English Reporter
Anr…………………………………………………………………………….Another
Ors……………………………………………………………………………….Others
Etc……………………………………………………………………………….Etcetera
Vol.........................................................................................................................Volume
SC……………………………………………………………..…………..Supreme Court
SCC…………………………………………………………...…….Supreme Court Cases
SCR…………………………………………………………...…...Supreme Court Record
Id. …..……………………………………………………………………………….Ibid
Ltd...…………………………….....…………………………………………….Limited
No.………………………………………………………………………..…….Number
Pg./p………………………………………………………………………………..Page
¶……….....................................................................................................................Paragraph
Hon’ble.............................................................................................................Honourable
u/s……………………………………………………….……..……………Under Section
UOI………………………………………………………………………….Union of India
CJ.....................................................................................................................Chief Justice
UID............................................................................................................Unique Identification
UIDAI..........................................................................Unique Identification Authority of India
4
Memorial on Behalf of Petitioner INDEX OF AUTHORITIES CASES REFERRED
Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295
14, 15, 16
Thornburgh v. American College of Obstetricians & Gynecologists, 476 US 15 747, 772 (1986)
I.R Coelho V. State of Tamil Nadu AIR 2007 SC 861
15
R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264
15
Kesavananda Bharti Sripadagalvaru &Anr. v. State of Kerala & Ors., AIR 16 1973 SC 1461.
Olmstead v. United States, 277 US 438 (1928)
16
Griswold v. Connecticut, 381 U.S. 479 (1965)
16
Justice K.S.Puttaswamy(Retd). v. Union Of India & Ors, Writ Petition 16 (Civil) No.494 Of 2012
District Registrar v. Canara Bank,(2005) 1 SCC 496
16
Mehmood N. Azam v. State of Chhattisgarh, Civil Appeal No. 5703/2012.
16
PUCL v. Union of India, (1997) 1 SCC 301
16
Mr. X v. Hospital Z, (1998) 8 SCC 296
16
5
Memorial on Behalf of Petitioner
Sharda v. Dharmpal, (2003) 4 SCC 4931
Griswold v. Connecticut, 200 A.2d 479, 381 U.S. 479 (1965)
16
17
Eisenstadt v. Baird, 1029 L.2d 349,405 US 438 (1972).
17
M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300
17
Ambica Quarry Works v. State of Gujarat, (1987) 1 SCC 213
18
R. C. Cooper v. Union of India, (1973) 3 SCR 530
18
Roe v. Wade, 410 U.S 113(1973).
18
Selvi v. State of Karnataka 2010(7) SCC 263
19
A.K Gopalan v. Union of India, (1950) SCR 88
20
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378
20
Maneka Gandhi v. Union of India, 1978 SCR (2) 621
20
Malak Singh v. State of Punjab (1981) 1 SCC 420
20
Ram Jethmalani and Others v. Union of India and Others, (2011) 8 SCC 1
19
Bishan Dass vs. State Of Punjab, (1961) AIR 1570
22
6
Memorial on Behalf of Petitioner BOOKS REFERRED
1. Basu, Durga Das, Shorter Constitution Of India 396 (14th ed., 2012) 2. Row, Sanjiva, Hand Book of Indian Copyright Act, 1957 (6th ed., 2014) 3. Aggrawal, J.P., Pleadings and Precedents in India (3rd ed., 2012) 4. Shukla, V.N. , Constitution of India – (12th Ed., 2014) 5. Jain, M.P., Indian Constitutional Law – (7th Ed. 2014) 6. Volumes I and II Basu, Durga Das, Commentary on the Constitution of India – (8th Ed., 2012) 7. Prasad, Rajendra, Law of Social Status, 5th Ed. 1998, Hindu Law House. 8. Seervai, H.M., Constitutional law of India, 4th Ed. 2002, Volume 2, Universal Book Traders. 9. Joga Rao, S.V., Computer Contracts And Information Technology Law 970 (Wadhwa & Nagpur) (2003).
RESEARCH PAPERS/ REPORTS REFERRED
1. Jean Slemmons Stratford & Juri Stratford, Data Protection and Privacy in the United States and Europe, Paper presented at the IASSIST Conference, May 21, 1998, at Yale University, New Haven, Connecticut. 2. Robert Aldrich, Privacy Protection Law in the United States, (NTIA Report 82-98) in U.S. Congress. House. Committee on Government Operations. Oversight of the Privacy
7
Memorial on Behalf of Petitioner Act of 1974: Hearings. 98th Congress, 1st Session, 7-8 June 1983, 489 (Y4.G74/7:P93/11/974). 3. S. Bhushan, “The Uid Project: The 1984 Of Our Times”, NALSAR L.J 13(2013). 4. Shyam Divan, The Aadhaar trap: Why you should be really, really worried, 7th NLSIR Symposium at National Law School, Bangalore, (Dec. 28, 2015). 5. Gopal Krishna, Biometric NPR makes Indians worse than prisoners, violates Citizenship Act,
Census
Act
and
constitutional
rights
,
(Dec.
28,
2015),
http://www.toxicswatch.org/2014/06/biometric-npr-makes-indians-worse-than.html. 6. Forty-Second Report Standing Committee On Finance (2011-2012).
LEGAL DATABASES REFERRED
1. Manupatra Online Resources, http://www.manupatra.com.
2. Lexis Nexis Academica, http://www.lexisnexis.com/academica.
3. SCC Online, http://www.scconline.co.in.
4. Oxford Dictionary, http://www.oxforddictionaries.com
5. Supreme Court of India, http://supremecourtofindia.nic.in/
6. West Law, http://www.westlawindia.co
7. Hein Online, http://home.heinonline.org/
8
Memorial on Behalf of Petitioner LEXICONS
1. Aiyar Ramanathan P , Advanced Law Lexicon, 3 rd Edition, 2005, Wadhwa Nagpur. 2. Garner Bryana, Black‟s Law Dictionary,7th Edition,1999 LEGISLATIONS
1. The Constitution of India, 1950 2. Information Technology Amendment Act 2008 3. Right to Information Act 2005 4. The Telecom Unsolicited Commercial Communications Regulation, 2007 5. INDIAN TELEGRAPH ACT, 1885 6. THE INCOME TAX ACT, 1961 7. U.S. Privacy Act of 1974 8. U.S. Computer Matching and Privacy Act, 1988
CONVENTIONS
1. United Nation Declaration of Human Rights, 1948 2. International Convention on Civil and Political Rights, 1966 3. International Covenant on Economic, Social and Cultural Rights, 1966 4. United Nation Declaration on Indigenous People, 2007 5. European Convention on Human Rights, 1953
9
Memorial on Behalf of Petitioner
STATEMENT OF JURISDICTION
The Petitioners has approached the Hon’ble Supreme Court of Indistan under Article 137 with reference to 145(3) of Constitution of Indistan. The matter has been referred by the division bench to this Hon’ble Bench of Supreme Court of Indistan.
10
Memorial on Behalf of Petitioner
STATEMENT OF FACTS 1. The Govt. of Indistan based on recommendations of various expert panels decided to issue unique identification numbers to such individuals to ensure that the benefits of all Government sponsored schemes and measures reach to right person and not misused.
2. The scheme of unique identification involves collection of demographic and biometric information from individuals for the purpose of issuing of unique identification numbers to such individuals.
3. The Govt. of Indistan constituted the Unique Identification Authority of Indistan (UIDAI) in January, 2010, through an executive order. A noted activist and anthropologists filed a PIL titled as Mr.X vs. Union of Indistan invoking the writ jurisdiction of Supreme Court of Indistan challenging the manner in which the Bill has been passed in the Upper House of the Parliament inspite of Standing Committee rejecting the Bill in its entirety in present form.
4. By the year 2014, the UIDAI claim to have issued unique identification number to 80% of its target population. Fearing the misuse of data at the hand of Govt. agencies and its leakage to private corporations, agencies – one of the distinguished members of the Supreme Court Bar filed another PIL titled as “Mr. Y vs. Union of Indistan” questioning the linking and availability of social security schemes to the Unique identification number.
11
Memorial on Behalf of Petitioner
5. In light of the legal proposition as laid down by the Hon'ble Supreme Court, a local NGO has also questioned the legality of UID card vis- a –vis issuance of the same to the illegal migrants based on residence criteria by way of a Writ Petition in the High Court of United Province.
6. Both the PILs have been clubbed together by the Supreme Court of Indistan and it also transferred the Writ Petition pending before the High Court of United Province in exercise of power conferred under Article 139-A of the Constitution of Indistan. The Division Bench of the Supreme Court fixed the date of hearing on 18th August 2015.
7. The Division Bench of the Supreme Court prima facie opined that 'a substantial question of law' has thus arisen and passed the following reference order:-“Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.”
8. A bench of 'appropriate strength' has been constituted by the Chief Justice of Indistan to consider all the above issues raised in the moot proposition and the final hearing is scheduled to take place on 9th -10th January 2016.
12
Memorial on Behalf of Petitioner
ISSUES PRESENTED
ISSUE I – Whether there is any “right to privacy” guaranteed under our Constitution? Is ‘Right to Privacy’ a fundamental right? Whether collection of data and biometrics under the UID scheme violates it?
ISSUE II – Whether UID Scheme has any legal basis? Whether the manner of passing National Identification of Indistan Bill, 2010 is against the constitutional convention? Whether UID Scheme is helping ‘illegal migrants’?
13
Memorial on Behalf of Petitioner SUMMARY OF ARGUMENTS
ISSUE I:
Whether there is any “right to privacy” guaranteed under our Constitution?
It is most respectfully submitted before the Hon’ble Court that privacy rights has been developed though cases to protect the interest of the people. It is contented that the constitution of this country has been respected for upholding the fundamental rights of the citizens; the right to privacy though not expressly mentioned in the constitution holds an implied value in this regard and is well within the ambit of Art. 21 of the constitution which guarantees that “no person shall be deprived of his personal life or liberty”. The expression ‘personal life’ and ‘liberty’ in Art. 21 is comprehensive enough to include privacy also1 which is necessary for an individual to live a dignified life. ISSUE II:
Whether UID Scheme has any legal basis?
It is humbly submitted before the Hon’ble court that the authority in question i.e. UIDAI Aadhaar is totally based on an executive order which imposes a restriction on individual’s fundamental human and natural right, right to privacy. Then executive order issued for establishment UIDAI is void and contradictory to supreme court judgment .So it is having no known valid force of law as standing committee on finance has also raised questions regarding the nature of establishment of UIDAI without getting sanction from legislature. Moreover it is to be noted here that there are design faults in UIDAI and they could be categorized as a) Working in absence of statutory backup b) Issuing the cards to ‘residents’ which is proved as a boon for illegal immigrants. 1
Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, ¶ 38 (per SUBBA RAO, J.).
14
Memorial on Behalf of Petitioner ARGUMENTS ADVANCED
I.
Whether there is any “right to privacy” guaranteed under our Constitution?
The Counsel for the petitioners most humbly submits before this honorable court that the constitution of this country has been respected for upholding the fundamental rights of the citizens, the right to privacy though not expressly mentioned in the constitution holds an implied value in this regard and is well within the ambit of Art. 21 of the constitution which guarantees that “no person shall be deprived of his personal life or liberty”. The expression ‘personal life’ and ‘liberty’ in Art. 21 is comprehensive enough to include privacy also 2 which is necessary for an individual to live a dignified life The issue in hand deals with the question of existence of the fundamental right to privacy in the ambit of Indian Constitution here it would be appropriate to define privacy, privacy has been derived from the Latin word: privatus meaning thereby “separated from rest”. Moreover the concept of privacy rests on the promise that “a certain private sphere of individual liberty will be kept largely beyond the reach of government”3 . [I.1]
Development of Right to Privacy in India – It is most respectfully submitted before
the Hon’ble Court that privacy rights has been developed though cases to protect the interest of the people. Even this court in its recent judgment upon this matter has said - “In early days the scope of the guarantee provided by these rights was considered to be very narrow. Individuals could only claim limited protection against the state”4. This position has changed when the
2
Id.
3
Thornburgh v. American College of Obstetricians & Gynecologists, 476 US 747, 772 (1986).
4
I.R Coelho V. State of Tamil Nadu AIR 2007 SC 861
15
Memorial on Behalf of Petitioner Supreme Court held that the “right to privacy was a fundamental right, enforceable against private persons as well”5 and made it clear that they are not limited or narrow rights but provide a broad check against the violations or “excesses by the state authorities the narrow interpretation of fundamental rights chapter”6 is a thing of past. It is to be considered that if a fundamental right does not have an explicit mention that does not mean that it can be said to have no existence at all on the contrary “the fundamental rights themselves have no fixed content; most of them are empty vessels into which generation must pour its content in the light of its experience”7 [I.2]
This right was laid down in the Fourteenth Amendment of US Constitution, as was
confirmed in Olmstead v. United States8 wherein dissenting judge, Brandeis, J., defined privacy as "the right to be left alone". It was in Griswold v. Connecticut9 that, for the first time, general constitutional right to privacy, free of the Fourth and Fifth Amendments was established. In our country too, the word ‘personal liberty’ is construed in a liberal form to include the right to privacy; here also it has been termed as “right to be let alone”10. It is a part of dignity which has been declared as a non-negotiable `constitutional right flowing from the spirit of constitution and explicitly guaranteed under right to life & personal liberty in article 2111.
5
R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, ¶10, 16 (per B.P. REDDY, J.).
6
Supra 2
7
Kesavananda Bharti Sripadagalvaru &Anr. v. State of Kerala & Ors., AIR 1973 SC 1461.
8
564, 72 L, Ed. 944 277 U.S. 438. (1928).
9
1678, 14 L. Ed.2d 510, 381 U.S. 479, (1965).
10
Supra 5
11
Mehmood N. Azam v. State of Chhattisgarh ,(2012) 8 S.C.R 651
16
Memorial on Behalf of Petitioner It is most respectfully submitted that as the honorable court stated the compromis in Gobind v. State of M.P. & Another12that the right to privacy has to go through a case by case development process; the later cases of R. Rajagopal v. State of Tamil Nadu13 and PUCL v. Union of India14 have confirmed the existence of Right to Privacy of an individual. Even in the case of District Registrar v. Canara Bank15the Supreme Court acknowledged all Supreme Court precedents which accepted the fact that right to privacy is implied in the Constitution of India 16.The U.S Supreme Court also while considering the question of privacy has held that “right to privacy should be recognized as a penumbral extension of substantive fundamental rights”17. The meaning of this right to privacy was rightly held by the supreme court of U.S as “if the right to privacy means anything, it is the right of the individual, to be free from unwarranted government intrusion”18. [I.3]
Privacy Jurisprudence from the Past Cases – It is to be considered that the respondents
have placed strong reliance over the precedential value of this court’s judgment in M.P Sharma & others. v. Satish Chandra & others19 and Kharak Singh v. State of U.P. &others20where it 12
(1975) 2 SCC 148
13
Supra 10
14
(1997) 1 SCC 30
15
(2005) 1 SCC 496.
In pertinent part the Supreme Court held the following: “The right to privacy has since been widely accepted as implied in our Constitution, in other cases, namely, PUCL v. Union of India, (1997) 1 SCC 301; Mr. X v. Hospital 'Z', (1998) 8 SCC 296; PUCL v. Union of India, (2003) 4 SCC 399; Sharda v. Dharmpal, (2003) 4 SCC 4931.” 16
17
Griswold v. Connecticut, 200 A.2d 479, 381 U.S. 479 (1965)
18
Eisenstadt v. Baird, 1029 L.2d 349,405 US 438 (1972).
19
AIR (1954) SC 300.
20
Supra 6.
17
Memorial on Behalf of Petitioner was observed that the right to privacy is not guaranteed under the constitution and that we have no justification to import it, but this is not a valid argument. In regard to the M.P Sharma’s case the contention of the respondent is baseless as the part of the judgment cited by the respondent in relation to the right to privacy is the decision which was specifically limited to the scope of Article 20(3) and according to settled law as to the binding effect of precedents, was “an authority for what it actually was decided”21, the judgment was the obiter dicta of the case; hence it is not binding upon this honorable court. Also it should be considered that in the case of Malak Singh v. State of Punjab22 this court has held that “surveillance is intrusive and is an encroachment upon the right to privacy”; hence it is unfit to rely upon such cases, and hence the claim of respondents is baseless. In respect to Kharak Singh’s it is submitted that the reason for denial to a ‘fundamental’ right to privacy was that the this case was overruled by an 11- Judge bench of this court in the case of R.C Cooper v. Union of India23 and makes it clear that the main premise in relation to the privacy was not tenable24. Moreover it should be considered that the case was decided at the time when the A.K Gopalan25 approach was followed which emphasized strictly on the “procedure established by law” which meant that even article 21 provided no immunity against competent legislative action. But the trends changed in the post emergency period where this court sensing the need for protection of individual’s right, in the
21
22
23
Ambica Quarry Works v. State of Gujarat, (1987) 1 SCC 213 (1981) 1 SCC 420. (1973) 3 SCR 530.
Venkatesh Nayak, Indian Constituion Was Written Up, Enforced Without Explicit Recognition Of Individual’s Privacy As Fundamental Right, publ., Dec 28, 2015
24
25
A.K Gopalan v. Union of India, (1950) SCR 88.
18
Memorial on Behalf of Petitioner Maneka Gandhi’s26case not only broadened the meaning of “personal liberty” but also adopted the theory of “due process” in “procedure established by law”, which in itself protects the right to privacy27, it overruled the majority view in Kharak Singh’s case regarding the interrelationship between Articles 19 and 21. In Selvi v. State of Karnataka28court adopted a even wider meaning by holding that “personal knowledge of a fact”. It emphasized personal autonomy, holding that revealing a personal fact was entirely in the domain of the individual’s decision making, which must be free from interference. [I.4]
CONCEPTION OF PRIVACY AS UNDERSTOOD FROM LEGISLATIVE ACTIONS
– Recent legislative trends indicate a wider acceptance of the right with the passing of the Information Technology Amendment Act 2008, and Right to Information Act 200529 the latter making exceptions to the powers granted to citizens with regard to safeguarding the right to privacy of individuals. Further, the tenor in which the legislature perceive the right may be observed by examining the explanatory memorandum30 of The Telecom Unsolicited Commercial Communications Regulation, 2007 which mentions the right to privacy of consumers as being a determinative factor for the passing of the Regulation by the Govt. of India’s international
26
Maneka Gandhi v. Union of India, (1978) AIR 597.
27
Roe v. Wade, 410 U.S 113(1973).
28
2010(7) SCC 263
29
Right to Information Act 2005 ,22 of 2015§. 8 (1) (j) (2005) provides that there shall be no obligation to give any citizen information the disclosure of which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied that the large public interest justifies the disclosure of such information). 30
Explanatory Memorandum - The Telecom Unsolicited Commercial Communications Regulation 2007, (Last visited on 28 December 2015) ,http://www.trai.gov.in/trai/upload/Regulations/65/Regulation5june07.pdf
19
Memorial on Behalf of Petitioner obligations to protect this hallowed ground further made sacrosanct by various Conventions such as the International Covenant on Civil and Political Rights,31 and Universal Declaration of Human Rights,32 both of which in Art. 17 and Art. 12 reaffirm the right to privacy and as have been signed by India and are not contrary to our municipal law, 33 are to be further incorporated in our legislative mechanism. It is humbly submitted that the learned Counsels of Respondents have been claiming from the outset that the Right to Privacy is not mentioned in the Constitution but while considering the issue of Public Interest Litigation the great justice P.N Bhagwati observed that, “ In order to treat a right as a fundamental right, it is not necessary that it should be expressly stated in the constitution as fundamental right” he even went on further and held that “political, social and economic changes in the country entail the recognition of new rights. The law grows to meet the demands of the ever evolving society” and considering the present issue in question, the law has been growing on it on a case to case basis. Hence the Counsels from Petitioners side would urge the apex court to declare Right to Privacy as a Fundamental Right. We strongly state that though Right to Privacy is not embedded in our Constitution, Government has no authority to straightaway implement any policies defying privacy rights to its citizens. [I.5]
The implementation of the UIDAI has breached the right to privacy of the citizens –
It is most respectfully submitted before the Hon’ble bench that the above arguments have established beyond doubt that the “right to privacy” is well within the ambit of art. 21. The
31
International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976. 32
Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).
33
S.V. Joga Rao, Computer Contracts And Information Technology Law 970 (Wadhwa & Nagpur) (2003).
20
Memorial on Behalf of Petitioner UIDAI so formed is for profiling the residents of the nation, the profiling which will include biometric data collection is inherently dangerous because it tracks individuals based on their religious, behavioral and/or biological traits. History is replete with examples wherein such profiling has been used for genocide, holocaust and violence against all kinds of minorities. The fact is that Hon’ble Supreme Court of India conclusively established privacy jurisprudence on 4th July 2011 by its judgment in the Ram Jethmalani and Others v. Union of India and Others34 case (the Black Money Case). Hon’ble Court held: “Right to privacy is an integral part of right to life. This is a cherished constitutional value and it is important that human beings be allowed within the domains of freedom that are free of public scrutiny unless they act in an unlawful manner….as constitutional adjudicators we always have to be mindful of preserving the sanctity of constitutional values, and hasty steps that derogate from fundamental rights, whether urged by governments or private citizens, howsoever well meaning they may be, have to be necessarily very carefully scrutinized35.” [I.5.i] No Data Protection Laws – In US the major (generic) laws for privacy and data protection are the Privacy Act of 197436 and Computer Matching and Privacy Act.37 Privacy Act was adopted both, to protect personal information in federal databases and to provide individuals with certain rights over information contained in those databases. The Act has been characterized as “the centerpiece of U.S. privacy law affecting government record-
34
(2011) 8 SCC 1
35
Ibid
36
5 U.S.C. § 552a
37
Jean Slemmons Stratford & Juri Stratford, Data Protection and Privacy in the United States and Europe, Paper presented at the IASSIST Conference, May 21, 1998, at Yale University, New Haven, Connecticut.
21
Memorial on Behalf of Petitioner keeping”.38 The Act also requires federal agencies of US to publish an annual list of systems maintained by the agency that contain personal information which are subject to scrutiny. It is to be considered here that the UIDAI is not covered under any data-protection laws as we do not have it till date. Moreover it is not a statutory body and currently there is no legislation governing it. It has been established by way of an Executive Order .The National Identification Authority of Indistan Bill, 2010 has not been passed yet. In the absence of the Supreme Court’s order in the present case and any law governing the information available with UIDAI, this information could have been potentially shared with other national agencies (such as the CBI) with impunity. In fact, in the absence of the Supreme Court’s Order, the UIDAI could have shared this information with private agencies as well. No consent has been taken from citizens when providing their biometric information that it may be used in future potential investigations against them. This would also be in breach of an individual’s right against self-incrimination under Article 20(3) of the Constitution. Hence in the prevailing situation when the right to privacy has became an integral part of a man’s dignity and that the country does not have data protection and privacy legislations, this authority is breaching the right to privacy of the citizens. [I.5.ii] The UID project is destructive of limited government which is built into the Constitutional scheme and is part of the Basic Structure of the Constitution of India. Limited government is transgressed by breaching bounds of personal autonomy guaranteed to every person under the Constitution. There is no statute to back the impugned project but even if there were one, the statute would be ultra-vires the Constitution. The project is also ultra-vires because
38
Robert Aldrich, Privacy Protection Law in the United States, (NTIA Report 82-98) in U.S. Congress. House. Committee on Government Operations. Oversight of the Privacy Act of 1974: Hearings. 98th Congress, 1st Session, 7-8 June 1983, 489 (Y4.G74/7:P93/11/974).
22
Memorial on Behalf of Petitioner there is no statutory guidance (a) on who can collect biometric information39; (b) on how the information is to be collected; (c) on how the biometric information is to be stored; (d) on how throughout the chain beginning with the acquisition of biometric data to its storage and usage, this data is to be protected; (e) on who can use the data; (f) on when the data can be used. [I.5.iii] Aadhaar is wrong because it compromises the bodily integrity of each of us by snatching away an intimate aspect of our physical identity. It is wrong because it is no part of the business of the government of India to create a vast data bank of biometrics that can be used and abused against Indians. The Aadhaar project with its enormous potential of surveillance alters the relationship between citizen and state. It tilts the balance so steeply in favor of government that a citizen whose biometrics is controlled by the state is permanently condemned to submission. A central bank of biometric data robs individuals of dignity assured by the Preamble to the Constitution. It also gives an inordinate amount of power to those in government controlling the levers of power against every outsider. The Constitution of India has a morality which prohibits an Orwellian state40. [I.5.iv] It is submitted that UIDAI and related projects like NPR treats every Indian as a subject of surveillance unlike UK which abandoned a similar project (that used to be cited by Wipro Ltd in promotion of UID) because it is "untested, unreliable and unsafe technology” and the” possible risk to the safety and security of citizens.” It is evident that a large part of our constitution is derived from the English jurisprudence and it will be pertinent to note that UK Home Secretary on a similar project in U.K explained that they were abandoning the project
39
S. Bhushan, “The Uid Project: The 1984 Of Our Times”, NALSAR L.J 13(2013).
40
Shyam Divan, The Aadhaar trap: Why you should be really, really worried, 7th NLSIR Symposium at National Law School, Bangalore, Dec. 28, 2015.
23
Memorial on Behalf of Petitioner because it would otherwise be 'intrusive bullying' by the state, and that the government intended to be the 'servant' of the people, and not their 'master'41. It is most respectfully submitted before this Hon’ble court that the arguments above have clearly established that the most ambitious project of government i.e ‘UIDAI’ is infringing the right to privacy of the citizens. It is submitted that the Government had put the cart before the horse, how does Privacy Bill make sense when privacy of citizens is already violated through Aadhaar /UID related tracking and profiling system being implemented. In the face of such assault on Parliament’s prerogative, citizens’ rights and the emergence of a regime that is making legislatures subservient to database and data mining companies, the urgent intervention of this court is very important for the protection of citizen’s interest
41
Gopal Krishna, Biometric NPR makes Indians worse than prisoners, violates Citizenship Act, Census Act and constitutional rights , (Dec. 28, 2015), http://www.toxicswatch.org/2014/06/biometric-npr-makes-indians-worsethan.html.
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Memorial on Behalf of Petitioner ISSUE II: Whether UIDAI has any Legal Basis? [II.1] Executive order not sufficient to set up an institution, without being passed from Legislature – It is humbly submitted before the Hon’ble court that the authority in question i.e. UIDAI Aadhaar is totally based on an executive order which imposes a restriction on individual’s fundamental human and natural right, right to privacy. Then executive order issued for establishment UIDAI is void and contradictory to supreme court judgment .So it is having no known valid force of law as standing committee on finance has also raised question regarding the nature of establishment of UIDAI without getting sanction from legislature. [II.1.i]
Limits of Executive Power – While the executive power of the Union, and of the
States, is co-extensive with the legislative power of the Union and the States, this is a provision that sets out the limits of the power. These are not provisions that are meant to make Parliament, or the legislatures, redundant. While executive power cannot extend beyond the legislative power of the Union and the States, Parliament and the legislatures can, and routinely do, set out the terms on which the executive is to function. This is also how 'delegated legislation' or 'subordinate legislation' has to be within the extent of the 'parent statute'. It is also to be considered that even the standing committee has recommended that the “Government to reconsider and review the UID scheme was also the proposals contained in the Bill in all its ramifications and bring forth a fresh legislation before Parliament”42. Supreme Court in year 1961 in a landmark case related to non-validity of executive order “Bishan Dass vs. State Of Punjab”43 observed that restriction on a fundamental right can be imposed only through a statue,
42
FORTY-SECOND REPORT STANDING COMMITTEE ON FINANCE (2011-2012).
43
(1961) AIR 1570
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Memorial on Behalf of Petitioner statutory rule or statutory regulation. A fundamental right cannot be put under restraint merely by an executive direction or order. [II.1.ii]
It is most respectfully submitted before the Hon’ble that the upper house of the
parliament passed the bill without even considering and in total contravention of the recommendation made by the standing committee. It is to be considered here that the rule 331 E of the Rules of Procedure and Conduct of Business in Lok Sabha empowers the standing committee to examine the issue and provide the report. It is true that the Parliament is not bind by the report of the standing committee but rule 331 N categorically states that “ the report shall have persuasive value and shall be treated as considered advice”, but in the present situation the upper house of the parliament ignored the recommendations in toto44. This is a clear indication that to pass its ambitious project the government has even went on to take measures in contravention of the rules. [II.1.iii]
It is to be noted here that there are design faults in UIDAI and they could be
categorized as a) Working in absence of statutory backup b) Issuing the cards to ‘residents’. In respect to the first fault is that though we agree that the competence of the Executive is not limited to take steps to implement the law proposed to be passed by Parliament, but it will be a plain misconception to think that the executive can do what it pleases, including in relation to infringing constitutional rights and protections for the reason that Parliament and legislatures have the power to make law on the subject. [II.1.iii]
Serious security concerns – It is most respectfully submitted that a resident who
does not possess any documentary proof of identity or proof of address can obtain an aadhaar
44
Facts Dossier Pg. 4 ¶1.
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Memorial on Behalf of Petitioner number by being introduced by an introducer. On this issue even the standing committee was surprised that while the country is on one hand facing a serious problem of illegal immigrants and infiltration from across the borders, the National Identification Authority of India Bill, 2010 proposes to entitle every resident to obtain an aadhaar number; apart from entitling such other category of individuals as may be notified from time to time. This will, they apprehend, make even illegal immigrants entitled for an aadhaar number. The Committee is unable to understand the rationale of expanding the scheme to persons who are not citizens, as this entails numerous benefits proposed by the Government. The Committee has received a number of suggestions for restricting the scope of the UID scheme only to the citizens and for considering better options available with the Government by issuing Multi-Purpose National Identity Cards (MNICs) as a more acceptable alternative. The counsel for the petitioners contends that entrusting the responsibility of verification of information of individuals to the registrars to ensure that only genuine residents get enrolled into the system may have far reaching consequences for national security. Given the limitation of any mechanism such as a security audit by an appropriate agency that would be setup for verifying the information etc., “it is not possible that complete verification of information of all aadhaar number holders be done; and it is even not sure whether it would deliver the intended results without compromising national security”45. Even the Ministry of Home Affairs has risen “serious security concerns over the efficacy of introducer system, involvement of private agencies in large scale in the scheme may become a threat to national security”46. In this regard even the EGOM constituted have failed to 45
Supra Note 42 at Pg. 29 ¶2
46
Ibid at Pg.31 ¶2
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Memorial on Behalf of Petitioner analyze the purpose of collating the two schemes namely, the UID and National Population Register (NPR), and to look into the methodology and specifying target for effective completion of the UID scheme. It is most respectfully submitted before the Hon’ble court that even after such grave concerns raised by different departments of government including the Ministry of Planning have “expressed reservation over the merits and functioning of the UIDAI; and the necessity of collecting iris image”47, the government has taken such steps which should be taken back for the interest of public at large.
47
Ibid at Pg.31 ¶4
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Memorial on Behalf of Petitioner PRAYER
Wherefore, in the light of the questions raised, arguments advanced and authorities cited, it is most humbly prayed and implored before the Hon’ble Supreme Court of Indistan that it may be pleased to hold, adjudge declare and
(i)Pass such an order that Right to Privacy is a Fundamental Right and UID Scheme is breaching our Fundamental Right to Privacy
Also,
(ii) Pass an order that UIDAI Scheme has no legal basis whether in terms of Executive Order or Illegal Immigrants.
And, (iii) Also, pass further orders as the Hon’ble Supreme Court may deem fit and proper in the facts and circumstances of the case.
All of which is most respectfully submitted.
(Counsel for the Petitioner)
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