Petitioner Memorial

JUSTIFIED 2018, 3rd NATIONAL MOOT COURT COMPETITION

TEAM CODE :TC-01P JU-07


BEFORE THE HON’BLE SUPREME COURT OF INDICA

I N THE MATTER OF

GAZ FOUNDATION & ORS. (PETITIONERS)

v. UNION OF INDICA (RESPONDENT)

WRIT PETITION NO. ****/2018

Upon Submission t o the Hon’ble Supreme Court of I ndica ndica

MEMORANDUM ON BEHALF OF THE PETITIONERS DRAWN AND FILED BY THE COUNSELS FOR THE PETITIONERS

1 MEMORIAL ON BEHALF OF PETITIONERS


TABLE OF CONTENTS

List of Abbreviations Abbreviations ............................................... ..................................................... ............................................................... ..........iv Index of Authorities ................................................. ..................................................... ................................................................ ...........v Statement Statement of Jurisdiction Jurisdiction ...................................................................................................... .................................................. .....................................................ix . Statement Statement of Facts .................................................... ......................................................................................................... ................................................................ ...........x Statement of Issues of Issues ............................................................................................................... xii Summary Summary of Arguments Arguments ....................................................................................... ...............xiii Arguments Arguments Advanced .............................................. ..................................................... ................................................................ ...........1

[1]. That the Special Leave Petition is mainatainable ................................................... .........1 [1.1]. The matter involves Question of Law of General Public Importance......................1 [1.2] The matter involves Substantial Question of Law and Gross Injustice has been done ....................................................................................................................................2 [1.2.1] Substantial Question of Law is involved............................................................2 [1.2.2] Gross Injustice has been done ............................................................................3 [1.2.3] Finding of Facts may give rise to S ubstantial Question of Law. .......................3 [2]. That the Pehchaan Policy and the Pehchaan Act, 2014 brought by the Government Government are not Constitutional ................................................................ ...................4

[2.1] The Act was brought by b y the Legislature of the State ................................................4 [2.2] The Pehchaan Policy and the Pehchaan Act, 2014 brought by the Government violate the Fundamental Rights of the People ...................................................................4 [3]. That the Pehchaan Project of the Government is violative of the Fundamental Rights of the People provided by the Constitution Constitution .................................................. .........5

[3.1] Violation of the Fundamental Right to Privacy of the People ..................................5 [3.2] Mandia’s Commitment under International Law .................................................... ...................................................... ..6 [3.1.1] Pehchaan Project of the Government is not in accordance with the ‘Procedure 2 MEMORIAL ON BEHALF OF PETITIONERS


Established by Law’ as per Art. 21 of the Constitution............................................... Constitution............................................... ..8 [3.1.2] The Pehchaan Project of the Government is in violation of Art. 19 of the Constitution .................................................... ......................................................................................................... ................................................................ ...........9 [3.1.2.1] Restriction on the Right to Remain Silent b y the Government does not fall 10 within the ambit of Security of State .......................................................................10

[3.1.3] The Pehchaan Project of the Government is in violation of Art. 14 of the Constitution .................................................... ......................................................................................................... .............................................................. .........10 10 [3.1.3.1] Test of Reasonable classification ..............................................................11 11 [3.1.3.1.1] Information sought from the people of Mandia for the of making 12 Pehchaan Cards is unreasonable ..........................................................................12

[3.1.3.2] Test of Arbitrariness ............................................... ...................................12 [3.1.3.2.1] Disclosure of Religion .............................................. ..........................13 13 [3.1.4] Pehchaan Project of the government of Mandia is not just, fair and reasonable 13 [3.1.4.1] Pehchaan Project of the government violates the dignity of the People of 14 Mandia .....................................................................................................................14 15 [3.1.4.1.1] Deprivation of choice .........................................................................15

[3.1.4.1.2] Constant State Surveillance ............................................... .................15 15 [3.1.4.2] The restrictions imposed by the Government on the Fundamental Right of 16 Privacy of the People is not Proportional to objectives of the Act. .........................16 17 [3.1.4.2.1] Narrow Tailoring Test .............................................. ..........................17

[3.3] Conflict between Fundamental Fund amental Rights and Directive Principles P rinciples of State Policy ....17 [4]. That the Government has not taken adequate measures to Secure the Data collected collected for the purpose of making Pehchaan Pehchaan Cards ....................................................18

[4.1] Lack of Security measures to prevent Leakage of Data ..........................................19 19 [4.1.1] Prevalence of Identity Theft ................................................... ..........................19 19 [4.1.2] De-duplication of Identities .................................................... .............................................................................. ..........................19 3 MEMORIAL ON BEHALF OF PETITIONERS


20 [4.2] There are no adequate safeguards against misuse of Pehchaan Database ...............20

[4.3] Delegation of Authority to Private Entities and Private Vendors ...........................20 Prayer for Relief .............................................. ...................................................... ....................................................................... .................21



LIST OF ABBREVIATIONS

Abbreviations

Full Form

&

And

v.

Verses

AIDS

Acquired Immunodeficiency Syndrome

A.I.R

All India Report

Cr.LJ

Criminal Law Journal

ed.

Edition

ECHR

European Commission Human Rights

ECOSOC

Economic and Social Council

HC

High Court

HCHR

High Commission Human Rights

HIV

Human Immunodeficiency Syndrome

ICCPR

International Convents Council of Political Rights

IPC

Indian Penal Code

ISBN

International Standard Book Number

LGBT

Lesbian Gay Bisexual Transgender

LGBTQI

Lesbian Gay Bisexual Transgender Queer Intersex

MANU

Manupatra

MSM

Man having sex with Man

SC

Supreme Court

SCR

Supreme Court Reporter

Sec.

Section

UK

United Kingdom

UN

United Nation

UNHRC

United Nation Human Right Commission

UNGA

United Nation General Assembly

US

United States

Vol.

Volume 5 MEMORIAL ON BEHALF OF PETITIONERS


INDEX OF AUTHORITIES CASE LAWS CITED Name of Case

Citation

Bowers v. Hardwick Dudgeon v. United Kingdom

478 U.S. 186 (1896) Appl.No. 7525/76

Fitzpatrick v. Sterling Housing Association ltd.

(1999) UKHL 42; (1999) 4 All ER 705; (1999) 3 WLR 1113

Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others

1981 AIR 746, 1981 SCR (2) 516

Goodridge v. Department of Public Health

798 N.E.2d 941

Government v. Bapoji Bhatt

(1884) (7) Mysore LR 280

Grace Jeyaramani v. EP Peter

AIR 1982 Karnataka 46

Karner v. Australia Khanu v. Emperor Krishna v. State of Madras

No. 40016/98 1925 Sind. 28 1975 AIR 297, 1956 SCR 399

Law v. Canada Lewis v. Harris Loving v. Virginal Menka Gandhi v. Union of India Modinos v. Cyprus Naz Foundation v. Government of NCT of Delhi

(1991) 1 S.C.R 497 188 N.J. 415 (2006) 388 U.S 1 (1967) 1978 AIR 597, 1978 SCR (2) 621

Noris v. Republic of Ireland

(1988) no. 1051/83

R. Rajgopal V. State of Tamil Nadu Salgueiro Da Silva Mouta v. Portugal Suresh Kumar Kaushan v. Naz Foundation and ors.

(1995) AIR 264, 1994 SCC (6) 632 33290/97

Sutherland v. UK

Application No. 25186/94

7/1992/325/426 2010 CrLJ 94 (Del.)

MANU/SC/1278/2013



The National Coalition for Gay and Lesbian Equality v. The Minister of Justice

(1998) ZACC 15

Noshirwan V. Emperor

AIR 1935 Sind. 78

Queen Emprise v. Khairati

1884 ILR 6 ALL 204

Toonen v. Australia

Communication No. 488/1992, U.N. Doc. CCPR/c/50/D/488/1 CCPR/c/50/D/488/1992 992

FOREIGN CASES 1. Griswold v. Connecticut, [381 US 479 (1965)]………………………………………… (1965)]…………………………………………19 19 2. Munn v. Illinois, [94 US 113 (1877)]…………………………………………… (1877)]…………………………………………… ..…….. ..……..25 25 3. Roe v. Wade, [410 US 113 (1973)]……………………………………………… (1973)]……………………………………………… ..……. ..…….19 19 INDIAN CASES 1. Anuj Garg v. Hotel Assn. of India, AIR (2008) 3 SCC 1 (SCC p.15 para 34-35)…… 34-35)…….....24 .....24 2. Aruna Ramachandra Shanbaug v. Union of India & ors., AIR (2011) 4 SCC 454…. 454….…..25 …..25 3. Arunchalam v. Sethuratnam, AIR 1979 SC 1284.………………………………… 1284.…………………………………..……14 ……14 4. CCE v. Venus castings (p) ltd., AIR 2000 SC 1568 : (2000) 4 SCC 206.…………… 206.……………..…15 5. District Registrar and Collector v. Canara Bank AIR 2005 SC 186……………… 186………………..…….19 …….19 6. Durga Shankar v. Raghu Raj; AIR 1954 SC 520 : (1955) 1 SCR 267………………… 267…………………..14 ..14 7. Gobind Singh v. State of M.P. AIR 1975 SC 1378…………………………………… 1378……………………………………...18 ...18 8. Haripada dey v. State of West Bengal, AIR 1956.……………………………………… 1956.………………………………………14 14 9. Jamshed Hormusji Wadia v. Board of trustees, port port of Mumbai, (2004) 3 SCC 214.…..14 214.…..14 10. Justice K.S.Puttaswamy v. Union of India AIR 2015 SC 3081………………… 3081…………………... ...…….. ……..17 17 11. K.L.D. Nagasree v. Government of India AIR 2007 AP 102:……………………….… 102:……………………….…..19 ..19 12. Kerala State Electricity Board v. Kurien E. Kalathil, (2000) 6SCC 293 : AIR 2000 SC 2573….………………………………………………………… 2573….…………………………… ……………………………………………………… ……………………………. ….15 15 7 MEMORIAL ON BEHALF OF PETITIONERS


13. Keshvanand Bharti v. State of Kerala (1973) 4 SCC 225…………………………….… 225…………………………….…26 26 14. Kharak Singh v. State of U.P, AIR 1963 SC 1295………………………………………26 1295………………………………………26 15. Matru v. State of U.P, AIR 1971 SC 1050……………………………………………… 1050………………………………………………14 14 16. Mohammad Khalil Chisti v. State of Rajashtan, 2013 CrLJ 637 (649) (SC) : (2012) 12 SCALE 254; ………………………………………………………………………………… 14 17. Mr CJ Karira v. Planning Commission, Government of New Delhi……………………. Delhi…………………….26 26 18. Mr. X v. Hospital Z, AIR (1995) SC 95………………………………………………… 95………………………………………………… 18 19. N.Suriyakala 19. N.Suriyakala v. A. Mohandoss, (2007) 9 SCC 196 : (2007) 3JT 266……………. 266…………….……. 14 ……. 14 20. Narpat 20. Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666………………… 666………………….....14 .....14 21. National 21. National Legal Services Authority Authority v. Union of India………………………………..,, India………………………………..,,… …24 22. Parmanand Katara v. Union Of India & Ors, 1989 AIR 2039, 1989 SCR (3) 997.....….. 997.....…..21 21 23. People’s Union Union for Civil Liberties v. Union of India A IR 1997 SC 568…………...… 568…………...…...18 ...18 24. R. M. Malkani v. State of Maharashtra AIR 1973 SC 157………………………. 157……………………….... ...…… ……19 19 25. R. Rajagopal v. State of T.N. AIR 1995 SC 264…………………………………... 264………………………………….....…...18 …...18 26. Ram Pirari v. Bhagwant, AIR 1990 SC 1742: (1990) 3 SCC 364…………………… 364……………………..…15 27. Sambhu Das v. State of Assam, (2010) 10 SCC 374: (2010) 3 SCC (Cri) 1301…… 1301……..…..14 …..14 28. Sanwat Singh v. State of Rajashtan, AIR 1961 SC 715: (1961) 3 SCR 120…….... ……....……14 ……14 29. Selvi v. State of Karnataka, AIR 2010 SC 1974…………………………………..… 1974…………………………………..…..…19 30. Sharda v. Dharmpal, AIR (2003) SC 3450………………………………………...…… 3450………………………………………...…….26 .26 31. Shreya Singhal v. Union of India, (2015) 5 SCC 1……………………………………... 1……………………………………...19 19 32. State of Sikkim v. Dorjee, AIR 1991 SC 1933 ; (1991) 4 SCC 243……………. 243…………….……….15 ……….15 33. State of U.P v. Indian Hume Pipe Co. ltd, AIR 1977 SC 1132 : (1977) 2 SCCC 724......15 34. Suchitra Srivastava v. Chandighar Administration AIR 2010 SC 235………… 235…………..……….26 ……….26 35. Vishaka v. State of Rajasthan, AIR 1997 SC. 3011……………………………… 3011………………………………..…..… ..…19 36. Western Indian Plywood Ltd. v. P. Ashokan, AIR (1997) 7 SCCC 638……………… 638………………...15 ...15

STATUTES AND ACTS

1. Constitution of India 2. Indian Penal Code, 1860

BOOKS REFERRED 8 MEMORIAL ON BEHALF OF PETITIONERS


1.

M.P. Jain, Indian Constitutional Law (7th ed. 2016)

2.

Basu, D.D.; Commentary on the Constitution of India (8th ed. 2009 vol. 2, 3 & vol.5)

3.

Serrvai, H.M.; Constitutional Law of India (4th ed. 2008)

4.

Singh, M.P.; Shukla V.N.; Constitution of India (11th ed. 2008)

5.

Singhvi, L.M.; Swarup, Jagdish; Constitution of India (3rd ed. 2013)

WEBSITES REFERRED

1. Manupatra, (www.manupatra.com) 2. SCC Online, (www.scconline.com) 3. Westlaw, (www.westlawindia.com) Westlaw, (www.westlawindia.com) 4. Lexis Nexis Academica, (www.lexisnexis.com/academica www.lexisnexis.com/academica)) 5. Lexis Nexis Legal, (www.lexisnexis.com/in/legal www.lexisnexis.com/in/legal)) 6. SCC Online, (www.scconline.co.in (www.scconline.co.in)) 7. Hein Online, (heinonline.org) 8. onward.justicia.com TREATISES

1. European Convention on Human Rights, Article 8 2. International Covenant on Civil and Political Rights, Article 17 3. International Covenant on Civil and Political Rights, Article 19(2) 4. United Declaration on Human Rights, Article 12 5. United Declaration on Human Rights, Article 19

CONSTITUTIONAL PROVISIONS

1. Article 14 2. Article 15 3. Article 16 4. Artice 19 (1) (a) 5. Article 21 9 MEMORIAL ON BEHALF OF PETITIONERS


6. Article 25 7. Article 26 8. Article 38 9. Article 372

JOURNAL REFERRED

1. “The Right to Privacy with era of smart governanc e – concern concern raised by the introduction of biometric – biometric – enabled enabled national id cards in India” by Sheetal Asrani; Damm – Legal Legal Associates, World Bank Bank - Journal of Indian Indian Law Institute, vol 47, ed. 2005

DICTIONARIES REFERRED 1. Black’s Black’ s Law Dictionary, 7th Ed. (1999)



STATEMENT OF JURISDICTION

The Petitioners humbly submit this written submission in response to the writ petition filed before this Hon’ble Supreme Court. The petition invokes its jurisdiction under Article 32 of the Constitution of Indica.

It sets forth the facts and the laws on which the claims are based.



STATEMENT OF FACTS 1) The gov. of Mandia formulated a policy named Pehchaan for profiling its citizens and to provide them with a card called Pehchaan. It was provided free of cost by establishing various cyber cells throughout the country. It was meant for various benefits given by the government and to check duplicity of identity, illegal immigration, leakages in gov. schemes, corruption, tax evasion, terrorism and hawala transactions 2) The gov. of Mandia constituted NUIA for making of P ehchaan cards who further assigned this task to private vendors and further to private entities having expertise in this field. The Pehchaan card required the basic details like finger prints of both the hands, scanning of iris of the eyes, blood group, spouse and children details, education qualifications, number of spouses, religion to which the spouses belong, laws under which marriage is solemnized, life threatening diseases if any, permanent infertility both in male in females, civil/criminal cases pending in any court and gov. loan or any other liability 3) Mr. Satish Dhankar challenged this policy in the HC of Nehli through a PIL contending that the Pehchaan policy violates the right to life including the Right to Privac y and right to speech and expression especially the right to remain silent and not to part with basic info. about oneself. He also contended that the info. asked under this scheme is very intimate and integral to one’s personality and hence making it mandatory to provide basic and intimate info. is unconstitutional and violative of his FR. He also challenged the policy as there is no law/statutory support for backing the mandatory making of Pehchaan cards by the gov. 4) The gov. of Mandia made the Pehchaan compulsory for seeking benefits ben efits under different social welfare schemes of the gov. to which the petitioner p etitioner contended that during the pendency pend ency of case gov. cannot make Pehchaan cards mandatory. On this the HC passed an interim order directing the gov. not to make Pehchaaan card mandatory. The next day the gov. filed an application to make a plea that Pehchaan card be allowed to made mandatory for non- benefit schemes likemaking PAN card, applying for gas connection and opening of bank accounts 5)

Gov. of Mandia enacted a law called the Pehchaan Act, 2014 making the Pehchaan card mandatory for all benefit and non-benefit schemes. The law gave statutory basis to the NUIA and it had a whole chapter on data protection and penalties and punishments for data leakages. To this the petitioner filed a fresh application in the HC to amend his petition by allowing 12 MEMORIAL ON BEHALF OF PETITIONERS


challenging the Pehchaan Act along with the original prayer for quashing the whole Pehchaan project. 6) Gov. of Mandia issued a notification making it mandatory for every scheme and programme and made it mandatory for issuing PAN card, DL, Passport, opening bank account and also fixed March, 2016 as a deadline for linking Pehchaan cards with bank accounts and PAN cards failing which penal actions would be initiated. 7) The petitioner contented in the HC of Nehli thati) Pehchaan Act, 2014 was violative of Right to Privacy. Data demanded under Pehchaan scheme is most intimate info. and is integral to personality and hence violation of right to life under Art 21. ii) Data collected by the gov. is not safe and it can be leaked to private entities and be threatening to life and liberty of citizens. 13 crore data of citizens was leaked from Pehchaan database and is now in the hands of private companies. Recently an IIT passed graduate hacked into Pehchaan database to use its data for his online o nline payment App. iii) Data can be used by majoritarian gov. for communal profiling and hence depriving citizens of the basic rights and amenities provided b y the gov. 8) The Respondent argued in HC of Nehli that- There is no Right to Privacy provided in any provision of the Constitution of Mandia and gov. will soon bring a substantive law for the protection of data. 9) The HC of Nehli after hearing both sides rejected the PIL and held thati) Pehchaan Act, 2014 is constitutional and the gov. can make it mandatory. ii) Right to Privacy is a common law right and right to deny info. to the gov. cannot be held to be FR to protect p rotect the state from security and other security problems. iii) Making Pehchaan mandatory is essential for the benefits to reach to citizens as it will eradicate problems of duplicity of identities. 10) The Petitioner came to SC of Mandia under SLP praying for quashing the judgement of the Hon’ble HC of Nehli and to declare Pehchaan Act, 2014 and previous policy of providing Pehchaan cards as violative of various provisions of the constitution.



SUMMARY OF ISSUES ISSUES RAISED:

The counsels on behalf of petitioner want to raise these issues in front of Hon’ble Supreme Court of Indica:

I.

Whether the Special Leave Petition filed under Article 136 of the Constitution of Mandia is maintainable or not?

II.

Whether the citizens of Mandia have a Fundamental Right to Privacy? Privac y?

III.

Whether the maintenance of a record of biometric data violates the Right to Privacy under Art.21 of the Constitution?

IV.

Whether the Pehchaan card can be made mandatory for the residents of Mandia?



SUMMARY OF ARGUMENTS ISSUE-I

1. WHETHER SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE CONSTITUTION OF MANDIA IS MAINTAINABLE OR NOT?

It is humbly submitted before this Hon’ble Court that the special leave petition filed by the petitioner under the provisions prov isions of Constitution of Mandia is maintainable on the ground that there is a grave substantial question of law as it deals with the bodily integrity of the citizens of Mandia which infringes there Right to Privacy which comes under Art.21, Right to life and personal liberty. It also puts massive public interest at stake just to facilitate government interest and this act itself violates the public interest at large. Hence, the petition should be maintainable under Art.136 of the Constitution Con stitution of Mandia.

ISSUE-II

2. WHETHER THE CITIZENS OF MANDIA HAVE A FUNDAMENTAL RIGHT TO PRIVACY?

It is humbly submitted before Hon’ble Court that Right to Privacy is a Fundamental Right as evolved by the Court in its various pronouncements and by the International treaties of which Mandia is a signatory and the new privacy policy of Pehchaan card is in violation of the fundamental right, that is, Right to Privacy, provided to the people under the ambit of Article 21 of the Constitution of Mandia. Therefore it is humbly submitted before the Hon’ ble ble Court that “Right to Privacy” Privacy” is an integral part of right to life and personal liberty guaranteed under article 21.



ISSUE-III

3. WHETHER THE MAINTENANCE OF BIOMETRIC DATA VIOLATES THE RIGHT TO PRIVACY UNDER ARTICLE 21 OF THE CONSTITTION?

It is humbly submitted before this Hon’ble court that the that the finger prints or the retina scan or any other biometric method of storing one’s personal information and then using it without the consent of individual is totally violative of the fundamental right of Right to Privacy envisaged in Right to life under Art.21 as every individual or citizen in this country had complete control over his/her body and State cannot insist any person for giving his/her finger tips or iris of e yes, as a condition precedent to enjoy certain rights and the maintenance of biometric data violates citizens Right to Privacy.

ISSUE-IV

4. WHETHER THE PEHCHAAN CARD CAN BE MADE MANDATORY FOR ALL RESIDENTS OF MANDIA?

It is humbly submitted before this Hon’ble court that since that since the government does not have any comprehensive law to secure the Pehchaan data and by imposing the Pehchaan card the government is imposing the duty on the citizens which is giving the state much more rights that it required for a democratic country. So in the light of above submission the Pehchaan card should be not be made mandatory to the citizens of Mandia.



ARGUMENTS ADVANCED

1. WHETHER SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE CONSTITUTION OF MANDIA IS MAINTAINABLE OR NOT?

It is humbly submitted and requested before the Hon’ble Court that petition that petition shall be allowed as substantial question of law of general public importance is involved in this case, which needs to be finally laid at rest by it for the entire country.

1.1 Special or exceptional circumstances where leave is granted: 1. The powers given under Art.1361 of the constitution are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the the needs of justice demand interference by the Supreme Court of the land. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of o f special leave, against any kind of judgment or order made by the court or tribunal in any cause or matter.2 2. It is an exceptional power to be exercised sparingly, with caution and care and to remedy extraordinary situation or situations occasioning gross failures of justice.3 3. Supreme Court grants special leave to appeal in exceptional circumstances4, such as when a question of general importance arises or a decision shocks the conscience of the court5; where grave and substantial injustice has been done by disregard to the forms of legal process, or violation of the principles of natural justice, or otherwise.6

1

Art.136, Constitution of Mandia Durga Shankar v. Raghu Raj ; AIR 1954 SC 520 : (1955) 1 SCR 267 3 Narpat Singh v. Jaipur Development Authority; (2002) 4 SCC 666, at 674 : AIR 2002 SC 2036. N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196 : (2007) 3JT 266; Mohammad Khalil Chisti v. State of Rajashtan, 2013 CrLJ 637 (649) (SC) : (2012) 12 SCALE 254; Sambhu Das v. State of Assam, (2010) 10 SCC 374: (2010) 3 SCC (Cri) 1301 4 Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214; Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666. 5 Arunchalam v. Sethuratnam, AIR 1979 SC 1284; Haripada Dey v. State of west Bengal, AIR 1956; Matru v. State of U.P., AIR 1971 SC 1050 6 Sanwat Singh v. State of Rajashtan, AIR 1961 SC 715: (1961) 3 SCR 120 17 MEMORIAL ON BEHALF OF PETITIONERS 2


4. Special Leave is granted when: 

There is miscarriage of justice,7



The question is raised is a pure question q uestion of law,8



There is uncertainty in law so far as the high courts are concerned.9



The lower court’s findings are recorded by erroneous application of principle of law, which consequently results in miscarriage of justice.10

5. It is humbly submitted before the Hon’ble Court Hon’ble Court of Law that the special leave petition which is filed by the petitioner under the provisions of Co nstitution of Mandia is maintainable on the ground that there is a grave substantial question of law as it deals with the bodily integrity of the citizens of Mandia which infringes there Right to Privacy which comes under Art.21 Right to life and personal liberty. 6.

As Art 21,11 bestows upon an individual right to personal liberty which will be infringed if Pehchaan cards will be linked with all the personal as well as biometric details of the individuals, setting an individual in an apprehension that further data may be leaked by the government as already stated in the fact sheet that the data of 13 crore citizens is leaked. It is not mere an apprehension but backed by the action which has been taken place.

7. Therefore, it is a substantial question of law because it is a Fundamental Right of crores of people which is getting violated through this Pehchaan policy. 8. The Special leave petition has to be exercised sparingly and only in furtherance of the cause of justice and when special circumstances shown to exist. Petition should be allowed as it is a gross miscarriage of justice and it is gravely infringing the fundamental rights of citizen of

Mandia by collecting there: 

7

Biometric detail like finger prints of both hands, scanning of iris of eyes, blood group;

Kerala State Electricity Board v. Kurien E. Kalathil, (2000) 6SCC 293 : AIR 2000 SC 2573; State of Sikkim v. Dorjee, AIR 1991 SC 1933 ; (1991) 4 SCC 243; State of U.P. v. Harish Chandra, (1996) 9 SCC 309 : AIR 1996 SC 2173 8 State of U.P v. Indian Hume Pipe Co. Ltd, AIR 1977 SC 1132 : (1977) 2 SCCC 724; Western Indian Plywood Ltd. V. P. Ashokan, (1997) 7 SCCC 638 9 CCE v. Venus Castings (p) Ltd., AIR 2000 SC 1568 : (2000) 4 SCC 206; CIT V. P.J. Chemicals ltd., AIR 1994 SC 2727 : 1994 (Supp-3) SCC 535 10 Ram Pirari v. Bhagwant, AIR 1990 SC 1742 : (1990) 3 SCC 364. 11 Article 21, Constitutional of Mandia 18 MEMORIAL ON BEHALF OF PETITIONERS




Personal information such as religion to which both the spouses belong, no. of

spouses, educational qualifications, laws under which marriage is solemnised, details of life threatening diseases e.g., AIDS and cancer, infertility in males and females, criminal and civil cases pending in any an y court of law, governmental loan, liability on the citizen. 9. Here massive public interest is put at stake just to facilitate government. This very act itself violates the public interest at large. 10. If data is leaked then it will be used for multiple purposes as data is in hand of private companies which can use this data for telemarketing, making the life of consumers’ hell consumers’ hell by selling all sorts of products to them. 11. As all this integrated personal information will put the citizens in a very vulnerable state of threat. 12. Thus the Hon’ble Supreme Court Court should allow the petition for restoring bodily integrity, right to remain silent and not to reveal personal pe rsonal information so that they can completely enjoy their personal liberty.



2.

WHETHER THE CITIZENS OF MANDIA HAVE A FUNDAMENTAL RIGHT TO

PRIVACY?

It is submitted before this Hon’ble court, that Right to Privacy Privacy is a Fundamental Right, incorporated in the Constitution under the aegis of Art. 21. The right has been implicitly provided to the people, by way of various pronouncements and interpretation of Art. 21. 2.1 Meaning of Right to Privacy

13. Right to Privacy is vested within Right to life a nd personal liberty under Art.21. The definition of the phrase “personal liberty” given by Prof. Dicey, according to whom personal liberty means freedom from physical restraint and coercion which is is not authorized by law. An unauthorized intrusion into a person’s home and t he disturbance caused disturbance caused to him is the violation of the personal liberty of the individual12. Therefore, Right to life enshrined in Art.21 has been liberally interpreted so as to mean something more than mere survival and mere existence or animal existence. It therefore includes includes all those aspects of life which go to make a man’s life meaningful, complete and worth living. The Right to Privacy is not just a common law right, not just a legal right, not just a Fundamental Right under the constitution. It is a natural right inherent in every individual. 14. Right to Privacy is not just an elitist concern, not just a modern myth, nor entirely irrelevant in the internet age. The court has rejected any notion that the Right to Privacy is an impediment to social welfare in any way, and the idea that those who seek socio-economic security do not care about their civil and political rights. 15. Privacy with its attendant values assures dignity to the individual and it is only when life can c an be enjoyed with dignity can liberty be of true substance. As stated in recent judgment of Right to Privacy13, “To live is to live with dignity.” The Right of Privacy is defined as an individual's legal right, not explicitly provided in the United States Constitution, to be left alone and live life free from unwarranted publicity. Privacy rights are considered

12

Kharak Singh v. State of U.P. AIR 1963 SC 1295 Justice K. S Puttaswamy v. Union of India AIR 2015 SC 3081 20 MEMORIAL ON BEHALF OF PETITIONERS

13


fundamental rights. Privacy can also extend to other aspects, including bodily integrity, personal autonomy, informational self-determination, protection from state surveillance, dignity, confidentiality, compelled speech and freedom to dissent or move or think. In think. In short, the Right to Privacy has to be determined on a case-by-case basis. Privacy enjoys a robust legal framework internationally. Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, legally protect persons against “arbitrary interference” with one’s privacy, family, home, correspondence, honour and reputation. 13. “Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity in creating a zone of solitude”. At a time when individuals are being told what eat, who to love and marry, to respect or oppose, this assertion of the citizen’s autonomy citizen’s autonomy sends out an important message to both society and the state. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty it intended to achieve. The dignity of the individual, equality between human beings and quest for liberty are the foundational pillars of the Mandian constitution. 2.2 Implication of Right to Privacy under Article 21

14. In the case of Kharak Singh v. State of U.P.14 , privacy was though denied the status of a fundamental right, but it was affirmed by the bench that it indeed is a human right under common law, while construing the meaning of personal liberty. The dissenting opinion of SubbaRao J. did impute the Right to Privacy as a fundamental right under the ambit o f personal liberty but liberty but the same was not reckoned by the majority. 15. In Gobind Singh v. State v. State of M.P.15, the Supreme Court, through a three judge bench stated that privacy is a concern for an individual and is a part of the con cept of liberty. Furthermore,

14

Supra note at 12, Kharak Singh case Gobind Singh v. State of M.P. AIR 1975 SC 1378

15



in the case of R. of R. Rajagopal v. State of T.N.16 , more popular as the Auto Shankar case, case, the scope of right to be left alone was widened. The bench of the Supreme Su preme Court, decided to give a constitutional status to Right to Privacy stating that it is “implicit “ implicit in the right to life and personal liberty”. liberty”. 16. In the evolution of the law over Right to Privacy, in the case of People’s of People’s union for Civil Liberties v. Union of India17, it was admitted by the bench that Right to Privacy is a part of the right to life and personal liberty. Although the bench refused to define privacy, it did reckon that the infringement of the privacy would depend upon the basis of the facts of the various cases, considering the concept to be too broad and moralistic in order to define it in a judicial manner. 17. It is therefore therefore submitted before this Hon’ ble ble Court, that though Right though Right to Privacy has Privacy has not been explicitly mentioned as a fundamental right in the Constitution, it still is a part of the same as it is one of the essential ingredients of personal liberty. Today, the right has become, by evolution a multifaceted right. For instance, bodily privacy has been affirmed in the case of ‘ X’ X’ v. Hospital ‘Z’ 18, financial privacy in the case of District Registrar and Collector v. Canara Bank 19, communication privacy in the case of R. M. Malkani v. State of Maharashtra20, et.al. Therefore, Right to Privacy has now been given the status of the fundamental right. 18. Apart from Right to Privacy being a fundamental right, it is pertinent here to mention about the importance of the international treaties and laws on privacy which is to be respected according to Article 5121 of the constitution, in case if there is not no t a law already made for the issue which is being dealt with. 19. In the landmark case of Vishaka v. Vishaka v. State of Rajasthan22, it was propounded by the bench that if a fundamental right is being infringed and there is not any domestic legislation to deal with it then the subject must be construed in line with the provisions in the international treaties and conventions, to which the country is a party.

16

R. Rajagopal v. State of T.N. AIR 1995 SC 264 People’s Union Union for Civil Liberties v. Union of India AIR 1997 SC 568 18 ‘X’ v. Hospital ‘Z’ AIR ‘Z’ AIR 1999 SC 495 19 District Registrar and Collector v. Canara Bank AIR 2005 SC 186 20 R. M. Malkani v. State of Maharashtra AIR 1973 SC 157 21 Article 51, Constitution of Mandia. 22 Vishaka v. State of Rajasthan, AIR 1997 SC. 3011. 22 MEMORIAL ON BEHALF OF PETITIONERS 17


20. This approach was undertaken in the case of Kharak of Kharak Singh v. State of U.P.23, and, Gobind v. v. State of M.P.24. To make the position clear over the use of international treaties, the court in the Auto Shankar case25 cited Article 8 of the European Convention on Human Rights26 (ECHR) which does not treat privacy as an absolute right but indeed as an imperative right needed in a democratic society. Article 12 of Universal Declaration of Human Rights27 and Article 17 of International Covenant on Civil and Political Rights28 asks for the maintenance of privacy. This was referred to in the case of People’s of People’s union for Civil Liberties v. Liberties v. Union of India case India case29. To both of these, India is a signatory. 21. Considering the aforementioned treaties and covenants and the provisions therein, which explicitly states that privacy as an essential right of human being and its violation is noncongruous to the meaning of life, it is therefore submitted before the court to consider these international law treaties and jurisprudence while dealing with the case in hand. 22. Any kind of invasion into the privacy of the individual is wrong per wrong per se, se, and this has been upheld by the court by way of various judgments and pronouncements such as in the auto Shankar case30, PUCL case31, case of R.M. of R.M. Mlakaniv. Mlakaniv. State of Maharashtra32 et.al. Also, et.al. Also, the courts at times have refused to admit the evidences based on such intrusion to privacy of an individual33. 23. It is pertinent to note that the jurisprudence in the country has not developed much in this direction unlike the case in Europe and America, and due to such situations the Supreme Court has at numerous occasions considered the jurisprudence of these places as was done in the case of Shreya Singhal v. Union of India34. The case of Griswold v. Connecticut 35and Roe and Roe v. Wade36 which was dealt in the US Supreme Court was used by the apex court of India in the

23

Supra note at 12, Kharak Singh case Supra note at 14, Gobind case 25 Supra note at 16, Auto Shankar case. 26 European Convention on Human Rights, Article 8, Effective from September 3, 1953. 27 United Declaration on Human Rights, Article 12, adopted on December 10, 1948 28 International Covenant on Civil and Political Rights, Article 17, Signed on December 16, 1966 29 Supra note 17, PUCL case 30 Supra note 16, Auto Shankar case 31 Supra note 17, PUCL case 32 Supra note 20, Malakani case. 33 K.L.D. Nagasree v. Government of India AIR 2007 AP 102: 34 ShreyaSinghal v. Union of India, (2015) 5 SCC 1. 35 Griswold v. Connecticut, 381 US 479 (1965) 36 Roe v. Wade, 410 US 113 (1973) 23 MEMORIAL ON BEHALF OF PETITIONERS 24


auto shankar case shankar case to highlight to invasion of government bodies into an individual’s privacy and the violation of Article 21. 24. In the case of Selvi v Selvi v.. State of Karnataka37 , the court held that if an individual is being forced to give the consent for any purpose then that is a kind of intrusion into personal liberty. Even in the auto Shankar case, the Supreme Court said that right to be left alone wh ich is a corollary of Right to Privacy incorporates the principle of consent. 25. The Right to Privacy in any event will necessarily have to go through a process of case -bycase development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of Mandia and the freedom of speech create an independent Right to Privacy as an emanation from them which one can characteristic as a Fundamental Right. The right most valued by civilized men, the right to be left alone. But in our age, the age of internet, the right to be left alone includes also the right to be put out there, or exposed involuntarily. 

Forced disclosure of the information that comprises our identities in the age of biometric identification, social profiles, and cashless economic transactions, damages an essential component of all personal liberties.



Whether the individual’s information is information is used on its own, or is analyzed, profiled or linked in the “social graph” to to that of other related persons, forced disclosure of personal information in today’s today’s society society creates power in the state which receives the information.



Not all of the constitutional right of privacy cases in the age of the internet will involve forced disclosures. The cases that will matter most, should the court decide in favour favour of the fundamental right, right, will be where the government imposes a form of disclosure that, like limitations on physical movement, inhibits the ability to be on eself.



Court would find that the fundamental Right to Privacy is infringed when forced disclosure of personal information to government government interfere with the exercise exercise of any of the freedoms freedoms the Art.19 protects, when you cannot actually have your freedom of movement, or of

37

Selvi v. State of Karnataka, AIR 2010 SC 1974 24 MEMORIAL ON BEHALF OF PETITIONERS


expression, for example, because you are compelled to give information that empowers empowers government to restrict deny your rights. 26. The liberties guaranteed under Art.21, where, an Aadhar number is required before a patient can request ambulance service ,as has been ordered recently in UP, the right to medical care protecting life declared d eclared by Supreme court in Parmanad in Parmanad Katara v. Union of India38; in this case violated by compelled disclosure of identity. 27. Supreme Court decides the present issues fully; it will find that the common factors in all successful constitutional privacy claims are 

The forced disclosure of personal information



Under circumstances adversely affecting an individual’s individual’s ability to exercise freedoms protected by Art.19 or liberties guaranteed by Art.21



Also the terms of Art.14, that all persons must be equally treated with respect to requirements of personal information disclosure, without discrimination.

28. The importance of a fundamental right in our system is that it can only be enforced against the state. Platform social media companies receive voluntary disclosures of personal information in immense quantities every minute, but they are not subject to constitutional controls. Moreover, though these corporate are indeed ubiquitous in our lives, they are not obligatory. In dealing with them, we still have choices only the poor of the state can, in fact, compel us to expose ourselves more fully than we choose to do. 29. Right to Privacy of the Mandian citizen got more teeth against the arbitrary action the state. The supreme court’s ruling that the “Right “Right to Privacy” Privacy” is an integral part of right to life and personal liberty guaranteed under article 21 of the constitution will be seen in the light of its immediate context – context – the the Pehchaan case. 30. Therefore, it is submitted before this Hon’ble H on’ble court by the counsels for the petitioner that the new privacy policy of Pehchaan card c ard is in violation of the fundamental right, that is, Right to Privacy, provided to the people under the ambit of Article 21 of the Constitution of Mandia.

38

Parmanad Katara v. Union of India AIR 1989 SCR (3) 997 25 MEMORIAL ON BEHALF OF PETITIONERS


3. WHETHER THE MAINTENANCE OF BIOMETRIC DATA VIOLATES THE RIGHT TO PRIVACY UNDER ARTICLE 21 OF THE CONSTITTION?

It is to be humbly submitted before submitted before the Hon’ble Court of Law that every individual or citizen in this country had complete control over his/her body and State cannot insist any person from giving his/her finger tips or iris of eyes, as a condition precedent to enjoy certain rights and the maintenance of biometric data violates citizens Right to Privacy.

3.1 Biometric Pehchaan Cards are a threat to privacy

31. There are certain things that the State simply cannot do, because the action fundamentally alters the relationship between the citizens and the State. The wholesale collection of biometric data data including finger prints prints and storing it it at a central depository per se puts the State in an extremely dominant position in relation to the individual citizen. Biometric data belongs to the concerned individual and the State cannot collect or retain it to be used against the individual or to his or her prejudice in the future. 32. Further the State cannot put itself in a position where it can track an individual and engage in surveillance. The State cannot deprive or withhold the enjoyment of rights and entitlements by an individual or makes such entitlements conditional on a citizen parting with his/her biometrics. 33. Being a conscientious person in the society, no one wants to give away his finger tips or iris to private persons who were engaged as contractors/private enrollers by the Govt. for undertaking the job of enrolment under the Pehchaan. It is to be submitted that the data given to such persons are not safe and there was huge possibility that the same maybe leaked. Further, requirement of giving Pehchaan number for every transaction amounted to surveillance by the State and the entire profile of such persons would be available to the State. 34. In today’s technology, there was every possibility of copying copying the fingerprint and even the iris images. Various cases of fake Pehchaan Card has come to light. There are instances of Pehchaan leak as well. Even hacking is possible. As the collection of biometrics information is with the private authorities in a very poorly and unorganized manner which results in various reports of data breaches and the storage of these biometrics information in large 26 MEMORIAL ON BEHALF OF PETITIONERS


deposits is considerable risk for the security of these information’s and also these data of private information is stored in central identities data repository from where hacking and destroying the data is easily assessable. These are the issues within the realm of ‘Right ‘Right to Privacy’ Privacy’ which were to be decided by the Constitution Bench. 35. It is to be submitted that a citizen is entitled to enjoy all these rights including social and civil rights such as the right to receive an education, a scholarship, medical assistance, pensions and benefits under government schemes without having to part with his or her personal biometrics. 36. An individual’s biometrics such as finger prints and iris scan are the property and entitlement of that individual and the State cannot coerce an individual or direct him or her to part with biometrics as a condition for the exercise of rights or the the enjoyment of entitlements. 37. Every citizen has a basic right to informational self-determination and the state cannot exercise dominion over a citizen’s proprietary information either in individual cases or collectively so as to place itself in a position where it can aggregate information and create detailed profiles of individuals or facilitate this process. 38. The Constitution of Mandia is not a charter for a Police State which permits the State to maintain cradle to grave records of the citizenry. No democratic country in the world has devised a system similar to Pehchaan which operates like an electronic leash to tether every citizen from cradle to grave. 39. In National In National Legal Services Authority v. Union of India & Ors. Ors. Article 21, as already indicated, guarantees guarantees the protection of “personal autonomy” of an individual. 40. In Anuj In Anuj Garg v. Hotel Assn. of India39 this Court held that personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in. Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Art.21 of the Constitution of India.”

39

AIR (2008) 3 SCC 1] (SCC p. 15, paras 34-35) 27 MEMORIAL ON BEHALF OF PETITIONERS


41. In Kharak In Kharak Singh 40 case Subba case Subba Rao, J. quoted Field, J. in Munn in Munn v. Illinois41 to emphasise the quality of life covered by Art.21: Art.21: “Something “Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the ampu tation of an arm or leg, or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world .” .” 42. Aruna 42. Aruna Ramachandra Shanbaug v. Union of India & Ors42, it was held that in common law it is the right of every individual to have the control of his own o wn person free from all restraints or interferences of others. Every human being of adult years and sound mind has a right to determine what shall be done with his own body. In the case of medical treatment, for example, a surgeon who performs an operation without the patient's consent co mmits assault or battery. It follows as a corollary that the patient possesses the right not to consent i.e. to refuse treatment. This is known as the principle of self-determination or informed consent. 43. The right to life covers and extends to a person’s right to protect his or her body body and identity from harm. The right to life extends to allowing a person to preserve and protect his or her finger prints and iris scan. The strongest and most secure manner of a person protecting this facet of his or her bodily integrity and identity is to retain and not part with finger prints/iris scan. 44. The right to life under Art.21 permits every person to live life to the fullest and to enjoy freedoms guaranteed as fundamental rights, constitutional rights, statutory rights and common law rights. The effect of the impugned provision is to coerce persons into parting with their finger prints and iris scan and lodging these personal and intimate aspects of an individual’s identity with the State as part of a programme that is wholly illegitimate. 45. Pehchaan policy violates the Right to Privacy as the scheme is directly interfering with the physical body of an individual who has to provide his biometric information aforesaid to get himself registered in the government records.43

40

Supra note 12, Kharak singh case [94 US 113 (1877)] 42 (2011) 4 SCC 454 43 Mr CJ Karira v. Planning Commission, Government of New Delhi. 28 MEMORIAL ON BEHALF OF PETITIONERS 41

JUSTIFIED 2018, 3rd NATIONAL MOOT COURT COMPETITION 3.2 Providing general information can lead to a proper identification

46. It is to be be submitted before the Hon’ble Court Court that by abolishing the system of biometrics information and just providing general information can also lead to a proper p roper identification of an individual and on records of the government also. 47. Looking very deep into the topic the counsel come across a very important aspect of government’s continuous attempts to amending the fundamental rights as government is directly affecting an individual’s Right to Privacy and creating a risk to their personal data which should be kept safe. But it is laid down in the case of Keshavnanda of Keshavnanda Bharti v. State of Kerala44 that any part of the constitution can be changed except the basic structure of the constitution which also counts fundamental right. 48. Biometric system cannot authenticate a person with 100 percent certainty as there are no safeguards or penalties and no legislative backing for obtaining personal information. 49. When tapping of telephonic conversation45, disclosure of dreadful disease46, Right to Privacy and subjecting to medical tests47, women’s right to make reproductive choices48 can be considered as Right to Privacy then how giving our biometric details49 cannot be considered as infringement of Right to Privacy. 50. NUIA 50. NUIA is definitely violative of the fundamental right of privacy as it misuses the personal information for a variety of purposes not only by government organization but also private institutions. 51. It is to be submitted before the Hon’ble court that the t he finger prints or the retina scan or any other biometric method of storing one’s personal information and then using it without his consent is totally violative of the fundamental right of Right to Privacy envisaged in Right to life under Art.21 forming the heart of fundamental rights.

44

(1973) 4 SCC 225 Supra note 17, PUCL case 46 Supra note 18, X case 47 Sharda v. Dharmpal, AIR (2003) SC 3450 48 Suchitra Srivastava v. Chandighar Administration AIR 2010 SC 235 49 Supra note13, Puttaswamy case 29 MEMORIAL ON BEHALF OF PETITIONERS 45


4. WHETHER THE PEHCHAAN CARD CAN BE MADE MANDATORY FOR ALL RESIDENTS OF MANDIA?

It is humbly submitted submitted before before the Hon’ble Supreme Supreme Court that Pehchaan Card cannot be made mandatory for all residents of Mandia because of the following arguments-

4.1 Phechaan card systems lead to function creep and discrimination: Function creep means- the gradual widening of the use of a technology or system beyond the

purpose for which it was originally intended, especially when this leads to potential invasion of privacy. 52. Pehchaan Card was introduced for a certain purpose but now is expanded beyond its original intent. In the case of the unique identification (UID) project, it was promoted as providing the poor with an identity. Then, it was about de-duplicating the entire population, so that each person would have one unique number by which they could be identified. Then it was to get rid of ‘ghosts’ and ‘duplicates’ in welfare systems and to prevent ‘leakages’. Then data as property and the exploitation of the UID number for making people leave detailed digital footprints became the game. Then it became a precondition for underserved and socioeconomically vulnerable people to get any manner of state assistance. Then, from denial of entitlements if a person is not enrolled or does not seed their number, it has reached a point where not having a UID number will force you to commit an offence because you want to pay your taxes, but you cannot, because the government will refuse to accept tax payment from you if you do not give them your UID number. And they will cancel your PAN card and then levy a penalty because you do not have a PAN card. 53. It has lead to invasion of privacy. Every identity system is made up of a support register containing personal information parallel to that on the ID card. When this information is maintained on a central database, the ID number acts as a common identifier for multiple government agencies. The risks that this poses for individual privacy is monumental. Centralized information is centralized power. A national identifier contained in an ID card enables disparate information about a person scattered in different databanks to be easy linked 30 MEMORIAL ON BEHALF OF PETITIONERS


and analyzed through data mining techniques. Moreover, multiple agency access to sensitive data greatly increases the potential for misuse of personal information, either throu gh corrupt disclosure or lapses in security.

4.2 Phechaan cards systems shift the balance of power from the individual to the state

54. Pehchaan systems invariably pave the way for the convergence of government services and the development of a comprehensive linkage between public and private sector information systems. Such initiatives turn nations into more authoritarian societies 50. This profound impact in inevitable because the Phechaan card is a component of complex web of technology techn ology that fuses the most intimate characteristics of the individual with the machinery of state. In order to give the card, the necessary legal gravity, its introduction is accompanied by a substantial increase in police power. Authorities will, after all, want to demand the card in a wide range of circumstances, and people must be compelled to comply. Government rarely promotes this sobering outcome. Instead, such initiatives are benignly dressed up as “citizen cards” guaranteeing entitlement to benefits and services, and streamlining a person’s dealings with the government. 55. The law leaves too much power in the hands of the executive. For instance, the bill gives the NUIA powers to determine if it should collect any biological attribute of people too. This means the government could at a later date mandate that DNA of all Pehchaan numbers too be collected. 56. The biometrics of citizens are of citizens alone. The government can have no claim over them. In the Identification of Prisoner's Act, 1920, recognizes the right of a person to protect his or her finger impressions. These short Act comprising 8 sections requires persons convicted of offences punishable with rigorous imprisonment for a term of one year or more to allow his measurements and photographs to be taken by a police officer. A measurement may also be taken when a person is arrested in connection with such an offence. A magistrate may order a person to give finger impressions or a photo graph for the purposes of investigations.

50

Moot Proposition p.4 para 20



57. Resistance is deemed to be an offence under Section 186 of the IPC51 (Obstructing a public servant in the discharge of his duty). Where a person is not a repeat offender, his photographs (negatives and copies) and all measurements are required to be destroyed when he is released without trial or discharged or acquitted. 58. This pre-constitutional regime, which gave limited rights to the state, is now being turned on its head with wholesale trawling of fingerprints through an administrative scheme with no statutory protection to individuals

4.3 No Data protection law in the state of Mandia

59. The question of whether or not the government’s bur eaucracy eaucracy is equipped to handle something like the Pehchaan database and this is pertinent as the incapability to do so will only make it easier for hackers to target the Pehchaan system. It is clearly evident from the facts of the case that hackers and internet users leaked crores of data from Pehchaan database which are now it is in the hands of the private companies. This shows that bureaucracy is not well equipped to handle the Pehchaan system currently. 60. Despite the critical importance of the Pehchaan number to all residents of Mandia, especially the poor, as well as the several doubts raised over the accuracy of the technology, the government has not provided for a grievance redressal system in the act. It included no provision for cases where a person has been denied a Pehchaan number or has run into authentication issues, depriving them of access to a subsidy or service. A system of this scale would likely require an independent nation-wide, taluk-level grievance redressal mechanism, but the Pehchaan Act, 2014 201 4 does not even hint at such a mechanism. Instead, Clause 23 (2) (s) of the Pehchaan Act delegates the entire process of setting up grievance redressal mechanisms to the NUIA. It is not good policy to leave such a vital function to the very agency agenc y that is responsible for the administration of the project. 61. The project is also ultra vires because there is no statutory guidancei) on who can collect biometric information ii) on how the information is to be collected iii) on how the biometric information is to be stored

51

Sec 186 - Obstructing a public servant in the discharge of his duty 32 MEMORIAL ON BEHALF OF PETITIONERS


iv) on how throughout the chain beginning with the acquisition of biometric data to its storage and usage, this data is to be protected v) on who can use the data vi) on when the data can be used.

4.4 Sharing of one’s integral intimate information with government is imposition of duty on an individual by state

62. The impugned provision is wholly disproportionate and excessive. The so called state interest is minuscule compared to the massive invasion on person liberty and freedom of an individual. 63. If a person chooses not to enroll, at the highest, in terms of the Pehchaan Act he or she may be denied access to certain benefits and services funded through the Consolidated Fund of India. When the Pehchaan enrolment procedure is supposedly based on informed free consent and is voluntary a person cannot be compelled by another law to waive free consent so as to alter the voluntary nature of enrolment that is engrafted in th e parent statute. 64. By visiting a conscientious objector (such as the petitioners) or any other person who does not have a Pehchaan number num ber with severe consequences, the object of the impugned provision is itself discriminatory and violative of Art.14 52. There is no justification for discriminating against persons who do not wish to part with their sensitive biometric information such as finger prints and iris scan. 65. The impugned provision in effect treats an individual’s finger prints and iris scan as b elonging to the state, blurring the distinction between the individual and the state. The impugned provision reduces to a mirage the voluntary nature of enrolment carried out under the Pehchaan Act. It compels Pehchaan enrolment which is directly in conflict with the Pehchaan Act. 66. A statutory provision that completely takes away the voluntary nature of Pehchaan and compels expropriation of a person’s finger prints and iris scan is scan is per se violative of Art.21. In any event, such coercion cannot be imposed on legitimate tax payers and assesses who are otherwise willing to and pay income tax. There is no concept of eminent domain of the state qua a person and his body.

52

Art.14, under Constitution of Mandia 33 MEMORIAL ON BEHALF OF PETITIONERS


67. The state cannot hold an individual citizen hostage, by compelling them to part with something that does not belong to the state. 68. In a digital world, the right to life includes maintaining personal autonomy through informational self-determination. An individual must be allowed to limit what he or she wants to put out because otherwise her personal autonomy could get compromised. The coercion amounts to compelled speech. The freedom of speech includes the right to remain silent. Here, the citizen is being compelled to speak or part with his or her demographic information as well as finger prints and iris scan. The impu gned provision violates Art.19(1) (a)53 and is not saved under Art.19(2)54. 69. Whenever a person voluntarily entrusts his finger prints and iris scan to the state, the ‘property’ and entitlement is retained with that individual throughout his life. The state merely acts as a trustee or fiduciary. The trustee or fiduciary cannot comp el the “beneficiary” to part with such sensitive person information. 70. The framework of the Pehchaan Act is found ed on voluntary enrolment. This is a foundational premise of the programme. According to the state, state, “free informed consent” is the essence of Pehchaan. The state cannot alter this basic premise based on which individuals were asked to enrol. 71. There is no comparison between the existing PAN system and the proposed or intended Pehchaan number system as the PAN system does not require parting with the fingerprints and iris scan of an individual; Expose personal Expose personal information and data to private private enrollers; enrollers; create an ecosystem of authentication that potentially could compromise the identity of the individual. Therefore, it it is humbly submitted by the council before the Hon’ble SC that since the government does not have any comprehensive law to secure the Pehchaan data and by imposing the Pehchaan card the government is imposing the duty on the citizens which is giving the state much more rights that it required for a democratic county. So in the light of above arguments the Pehchaan card should be not be made mandatory to the citizens of Mandia.

53

Art.19(1)(a), under Constitution of Mandia Art 19 (2), under Constitution of Mandia

54



PRAYER

Wherefore, in the lights of facts stated, issues raised, authorities cited & arguments advanced, it is most humbly prayed & implored before the Hon’ble Court, that it may be graciously graciousl y pleased to adjudge & declare – declare – 35 MEMORIAL ON BEHALF OF PETITIONERS


1. That, the Special Leave Petition filed under Art.136 of the Constitution of Mandia is

maintainable. 2. That, the citizens of Mandia have a Fundamental Right to Privacy. 3. That, the maintenance of a record of biometric data violates the Right to Privacy under

Art.21 of the Constitution. 4. That, the Pehchaan card cannot be made mandatory for the residents of Mandia. 5. That, to declare Pehchaan Act, 2014 unconstitutional.

And pass any other relief, that this Hon’ble Co urt may deem fit and proper in the interest of justice, equity and good conscience.

For this act of Kindness, the petitioner shall be duty bound forever pray.

Sd/ALL OF WHICH IS RESPECTFULLY SUBMITTED COUNSELS FOR THE PETITIONER


Petitioner Memorial

Recommend Documents