IV JUSTICE MURTAZA HUSAIN MEMORIAL MOOT COURT COMPETITION - APPELLANT-

IN THE HON’BLE
SUPREME COURT OF MANDIA
(2017)

In the Matter Of
SPECIAL LEAVE PETITION (CIVIL) (____/2017)
UNDER ARTICLE 136 OF THE CONSTITUTION OF MANDIA

SATISH DHANKAR …………………APPELLANT

versus

UNION OF MANDIA ………………..RESPONDENT

MEMORANDUM FOR APPELLANT

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TABLE OF CONTENTS
LIST OF ABBREVIATIONS ................................................................................................. 2
INDEX OF AUTHORITIES ................................................................................................... 3
I. STATUTES....................................................................................................................... 3
II. BOOKS ............................................................................................................................. 3
III.CASES CITED ................................................................................................................. 4
A. INDIAN CASES...................................................................................................... 4
B. FOREIGN CASES .................................................................................................. 5
STATEMENT OF JURISDICTION ...................................................................................... 6
STATEMENT OF FACTS ...................................................................................................... 7
STATEMENT OF ISSUES ................................................................................................... 10
I. WHETHER THE RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT
GUARANTEED UNDER CONSTITUTION OF MANDIA? ....................................... 10
II. WHETHER THE PEHCHAAN ACT, 2014 IS VIOLATIVE OF THE PROVISIONS
OF THE CONSTITUTION OF MANDIA ..................................................................... 10

SUMMARY OF ARGUMENTS ........................................................................................... 11

I. WHETHER THE RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT
GUARANTEED UNDER CONSTITUTION OF MANDIA? ....................................... 11
II. WHETHER THE PEHCHAAN ACT, 2014 IS VIOLATIVE OF THE PROVISIONS
OF THE CONSTITUTION OF MANDIA ..................................................................... 11

ARGUMENTS ADVANCED ................................................................................................ 12

I. WHETHER THE RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT
GUARANTEED UNDER CONSTITUTION OF MANDIA? .................................. 12
VIEW ON PRIVACY BY FOREIGN COURTS AND FOREIGN
CONSTITUTIONS: .................................................................................................. 12
MANDIA’S COMMITMENTS UNDER INTERNATIONAL LAW ..................... 17
MANDIAN JUDICIAL RESPONSE TO PRIVACY .............................................. 18
PRIVACY FROM THE LENSES OF CONSTITUENT ASSEMBLY ................... 20
II. WHETHER THE PEHCHAAN ACT, 2014 IS VIOLATIVE OF THE
PROVISIONS OF THE CONSTITUTION OF MANDIA ....................................... 21
PEHCHAAN ACT AND PRIVATE ENTITIES ...................................................... 25
DOCTRINE OF UNCONSTITUTIONAL CONDITIONS ..................................... 28
DATA MAINTAINED BY PEHCHAAN IS SENSITIVE DATA .......................... 30

PRAYER ................................................................................................................................. 33

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LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER

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

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INDEX OF AUTHORITIES

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

II. BOOKS
1. JAIN M.P, INDIAN CONSTITUTIONAL LAW, 6TH EDITION 2011, LEXISNEXIS
2. BASU D.D, SHORTER CONSTITUTION OF INTDIA, 14TH EDITION,
LEXISNEXIS.
3. SINGH M.P., V.N. SHUKLA’S CONSTITUTION OF INDIA, 13TH EDITION 2017,
EASTERN BOOK CO.
4. JAIN M.P & JAIN S.N, PRINCIPLES OF ADMINISTRATIVE LAW, 6TH
ENLARGED ED., VOL. I, WADHWA NAGPUR, 2010.
5. JAIN M.P, INDIAN ADMINISTRATIVE LAW: CASES AND MATERIALS, VOL.
I.1994, WADHWA AND COMPANY NAGPUR, 1994, 1996.
6. PANDEY T.N, “RULE OF NATURAL JUSTICE IN THE ADMINISTRATION OF
LAW”, VOL. 131, TAXMAN, 2003.
7. BLACK HC, BLACK'S LAW DICTIONARY, STANDARD EDITION, LEGAL
SOLUTION
8. WILLIS HUGE EVANDER, CONSTITUTIONAL LAW OF UNITED STATES, 1936,
THE PRINCIPIA PRESS
9. BENSON PETER, PHILOSOPHY OF PROPERTY LAW, OXFORD UNIVERSITY
PRESS

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III. CASES CITED

A. INDIAN CASES

M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300
Malak Singh v State of Punjab and Haryana, (1981) 1 SCC 420
Gobind v State of Madhya Pradesh, (1975) 2 SCC 148
State of Maharashtra v Madhukar Narayan Mardikar, (1991) 1 SCC 57
Mrs. Neera Mathur Vs. Life Insurance Corporation of India and Anr, AIR 1992 SC 392
R. Rajagopal vs State Of T.N, 1995 AIR 264
PUCL v. Union of India, (1997) 1 SCC 301
Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat, (2008) 5 SCC 33
District Registrar and Collector, Hyderabad v Canara Bank, (2005) 1 SCC 496
Kharak Singh vs. The State of U.P. and Ors, 1962 (1) SCR 332
R.K. Dalmia v. Justice S.R. Tendolkar, (1959) SCR 279
Binoy Viswam v. Union of India, Writ Petition(Civil) No.247 Of 2017, Supreme Court of
India
Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh, (2016) 7
SCC 353
Justice K S Puttaswamy (Retd.), And Anr. v, Union Of India And Ors.)( Writ Petition (Civil)
No 494 Of 2012
Maneka Gandhi v. Union of India, 1978 AIR 597
State of Madhya Pradesh & Anr. v. Thakur Bharat Singh, AIR 1967 SC 1170
Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1
National Legal Services Authority v. Union of India & Ors, (2014) 5 SCC 438
Sunil Batra & Anr. v. Delhi Administration & Ors, 1980 AIR 1579
Kharak Singh v The State Of U. P. & Others, 1963 AIR 1295
Aruna Ramachandra Shanbaug v. Union of India & Ors, (2011) 4 SCC 454
Kesavananda Bharati v State Of Kerala And Anr, (1973) 4 SCC 225
Minerva Mills Ltd. & Ors v Union Of India & Ors, 1981 SCR (1) 206
I.R. Coelho (Dead) By Lrs v State Of Tamil Nadu & Ors, AIR 2007 SC 861
Nagpur Improvement Trust & Anr. v. Vithal Rao & Ors, 1973 AIR 689
Subramanian Swamy v. Director, Central Bureau of Investigation & Anr, (2014) 8 SCC 682

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Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148

Olga Tellis & Ors. V.Bombay Municipal Corporation & Ors. Etc, 1986 AIR 180
Behram v State of Maharashtra, AIR 1955 SC 123
Basheshar Nath vs. the Commissioner Of Income-tax, Delhi & Rajasthan, 1959 AIR 149
Ahmedabad St Xavier’s College v State of Gujarat, 1975 SCR (1) 173
In RE: The Kerala Education Bill, 1959 1 SCR 995
Axis Bank Limited v. Suvidhaa Infoserve Private Limited & Anr., Commercial Suit (Lodg.)
No. 108 of 2017

B. FOREIGN CASES

Roe v Wade, 410 US 113 (1973)

Kyllo v. United States, 3 533 US 27 (2001)
United States v Jones, 565 US 400 (2012)
National Media Ltd v Jooste, 1996 (3) SA 262 (A)
NM and Others v Smith and Others, 2007 (5) SA 250 (CC)
Her Majesty, The Queen v Brandon Roy Dyment, (1988) 2 SCR 417
Olmstead v United States, 277 US 438 (1928)
Department of State v. Ray, 502 U.S. 164 (1991)
Griswold v. Connecticut, 381 US 479 (1965)
Stanley v. Georgia, 394 U.S. 557 (1969)
R v The Commissioner of Police of the Metropolis, (2011) UKSC 21
Douglas v Hello Ltd, (2001) QB 967
Munn v. Illinois, 94 US 113 (1877)
Schloendorff v. Society of New York Hospital 211 NY 125 : 105 NE 92 (1914)
R. v. Oakes, (1986) 1 S.C.R. 103
Frost & Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 594 (1926)
Perry v. Sindermann., 408 U.S. 593 (1972)
Speiser v. Randall, 357 U.S. 513, 526 (1958)

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STATEMENT OF JURISDICTION

This Hon’ble Supreme Court of Mandia has jurisdiction over the matter under Article 136 of
Constitution of Mandia1. If the Court thinks appropriate to proceed in this matter, we
humbly accept your jurisdiction.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE.

ALL OF WHICH HUMBLY SUBMITTED:

Counsel for the Appellant.

1
136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of Mandia

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STATEMENT OF FACTS

• The following developments took place in the Republic of Mandia, which resulted
into a Special Leave Petition in the Supreme Court of Mandia:
• That the government of Mandia formulated a policy named ‘Pehchaan’ for profiling
of its citizens and to provide them a card called Pehchaan. The Pehchaan was meant
to identify citizens for various benefits given by the government, to save duplicity of
identities and duplicity of election cards, to identify illegal immigrants in the country,
to improve tax collection of the government and also to check the leakage in
government schemes and to prevent corruption happening in PDS and other subsidy
providing schemes of the government.
• That as per government notification issued on 12th October, 2009, Pehchaan policy is
also aimed at eliminating all forms of terrorism by finishing off sleeping modules and
local support base of terrorists in the country. Terror finance will be curbed through
Pehchaan and Hawala transactions and foreign contributions to suspect NGOs can be
checked by making payments, salaries and other financial transactions online and
linking them with Pehchaan system.
• That the government of Mandia constituted National Unique Identification Authority
under the Chairmanship of Mr. Rajeev Khanna, IT specialist on 30th November, 2009.
This Authority started its work of making Pehchaan cards and assigned this task to
private entities having expertise in this field. These private entities further outsourced
this work to private vendors in every district and block of Mandia to provide
Pehchaan cards to the citizens by taking their basic details like finger prints of both
the hands, scanning of iris of the eyes, blood group, spouse and child(ren) details,
their educational qualifications, number of spouses, the religion to which both spouse
belong to, laws under which marriage is solemnized, details of life-threatening
diseases like AIDS, Cancer and Hepatitis-B, permanent infertility both in male and
female and criminal/civil cases pending in any court and government loan or any
other liability on the citizen.
• That the Petitioner, Mr. Satish Dhankar, challenged this policy of mandatory
Pehchaan cards in the High Court of Nelhi, one of the states of the Republic of
Mandia on 22nd January, 2009 through a Public Interest Litigation (PIL) contending
that the Pehchaan policy violates right to life including the right to privacy and right

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to speech and expression- especially the right to remain silent and not to part with
basic information about oneself.
• On this High Court on 27th July, 2014 passed an interim order directing the
government not to make Pehchaan cards mandatory.
• That the government of Mandia the next day i. e. 28th July, 2014 filed an application
for the clarification of the interim order and to make a plea that Pehchaan cards be
allowed to be made mandatory for non-benefit schemes or programmes of the
government like making of PAN Cards, Mobile connections, applying for gas
connection and opening of bank accounts. The High Court allowed government’s plea
permitting it to make Pehchaan cards mandatory for non-benefit schemes,
programmes and initiatives of the government.
• In the monsoon session of the Parliament of Mandia on 11th August, 2014, the
government of Mandia enacted a law called the Pehchaan Act, 2014 making
mandatory the Pehchaan cards for all schemes (benefit and non-benefit both). This
law also provided a statutory basis to the National Unique Identification Authority.
The Act of 2014 also has a whole chapter on data protection and penalties and
punishments for data leakage.
• That the Petitioner filed a fresh application in the High Court to amend his petition for
including the challenge to the Pehchaan Act, 2014. The High Court allowed his plea
to challenge the Pehchaan Act, 2014 along with his original prayers for quashing the
whole Pehchaan project of the government of Mandia.
• That on 13th January, 2015, the government of Mandia issued a notification making
Pehchaan mandatory for every scheme and programme and fixed March, 2016 as the
deadline for linking Pehchaan cards with bank accounts and PANS cards and asked
every citizen to comply with it and in the absence of compliance penal actions are to
be initiated.
• That the Petitioner claimed Pehchaan Act, 2014 as violative of right to privacy
guaranteed by the Constitution of Mandia. He contended that data collected by
government is not safe and it can be leaked to private entities very easily threatening
the life and liberty of the citizens.
• That the Petitioner also contended that 13 crore data of citizens was leaked from
Pehchaan database and now this data is in the hands of the private companies, which

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can use this data for telemarketing, making the life of the consumers/citizens hell by
selling all sorts of products to them.
• That the Petitioner also claimed that recently an IIT passed graduate hacked into
Pehchaan database to use its data for his online payment App.
• That the Respondent argued in the High Court that there is no right to privacy
provided in any provision of the Constitution of Mandia.
• That after hearing the matter in detail and going through the materials and documents
submitted by Petitioner and the Respondent, the High Court of Nelhi rejected the PIL
and held that Pehchaan Act, 2014 is constitutional and government can make
mandatory the making of Pehchaan cards. It further held that right to privacy is a
common law right and right to deny information to the government cannot he held to
be fundamental right in the light of the necessity to protect the state from terrorism
and other security related problems. Since the state of Mandia is surrounded by hostile
neighbours it becomes incumbent on the part of the government to provide Pehchaan
cards to all its citizens.
• That the High Court of Nelhi also held that making Pehchaan mandatory is essential
for the benefits of schemes to reach to citizens as it will eradicate the problem of
duplicity of identities. It will further help in making elections free and fair by
eliminating double election cards and voting rights at two or more than two places.
• That the High Court of Nelhi also justified the collection of data by private entities for
the Pehchaan as government of Mandia is not having adequate resources and staff for
this purpose and hence its outsourcing of data collection exercise is justified because
of the reasons of lack of resources, expertise and staff with the government.
• That the Petitioner went to the Supreme Court of Mandia assailing the decision of the
Hon’ble High Court of Nelhi.
• That the Petitioner came to the Supreme Court of Mandia through a Special Leave
Petition under the provision of the Constitution of Mandia. He prayed for quashing
the judgment of the Hon’ble High Court of Nelhi and to declare the Pehchaan Act,
2013 and previous policy of providing Pehchaan cards.

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STATEMENT OF ISSUES

I. WHETHER THE RIGHT TO PRIVACY IS A FUNDAMENTAL

RIGHT GUARANTEED UNDER CONSTITUTION OF MANDIA?

II. WHETHER THE PEHCHAAN ACT, 2014 IS VIOLATIVE OF THE

PROVISIONS OF THE CONSTITUTION OF MANDIA

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SUMMARY OF ARGUMENTS

I. WHETHER THE RIGHT TO PRIVACY IS A FUNDAMENTAL

RIGHT GUARANTEED UNDER CONSTITUTION OF MANDIA?

Right to privacy is the fundamental right enshrined within the right to life and liberty. This
right is so crucial that it becomes dangerous not to put such a right into the fundamental
rights. The right of privacy gets ample amount of attention as well as due weight from the
foreign courts, making it stand in the category of fundamental rights. Countries such as the
U.S.A, U.K among others, with it's various judgements, have considered it a fundamental
right. Constitution of Mandia, it's commitment under various international laws and the
stand of Indian judiciary altogether prove, cogently, that right to privacy is a fundamental
right.

II. WHETHER THE PEHCHAAN ACT, 2014 IS VIOLATIVE OF THE

PROVISIONS OF THE CONSTITUTION OF MANDIA

The pehchaan Act fails to fulfill both the tests which are indispensable for the correct
application of the Act forming the very ground for it to be a success. The twin test
classification puts forth two conditions to be complied with. These are: (I) Reasonable
classification; (ii) The presence of a Nexus of this reasonable classification to the basic
objective to be achieved.
In the instant case the second condition is, clearly, ignored. The state has failed to show that
mandatory Linking of pehchaan card with its accompanying consequences will make the state
their goal. Putting an individual's privacy at stake, without a reasonable condition, is the
biggest danger the state can throw itself into. There is a possibility of misuse of personal
information parted with by an individual in the form of biometrics.
Various native and foreign laws/precedents emphasized time and time again, on the
importance of privacy. It ought not to be taken away by unconstitutional conditions. The
petitioner has this right as a fundamental right for which the provision of invoking writs is
also a remedy.

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ARGUMENTS ADVANCED

I. WHETHER THE RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT

GUARANTEED UNDER CONSTITUTION OF MANDIA?

Any meaningful human existence requires independence in thought and action which is
protected by privacy.
The legal definition of privacy has evolved over a period of time. In an 1890 article by
Samuel Warren and Louis Brandeis2 who were concerned about the invasion of privacy by
the photographic images, argued for the creation of a general right of privacy that would give
an individual a right to prevent the unauthorized use of private matters by the press. The
authors foresaw that new technologies, such as the telephone and photographs, would lead to
violation of the right to be let alone, and they concluded that privacy protection required
better legal protection.
In 1967, a more modern definition of the Right to Privacy3 was propounded by Alan Westin,
which has also been accepted by the US Supreme Court. According to this definition, the
Right to Privacy is the “claim of individual, groups and institutions to determine for
themselves when, how and to what extent information about them is communicated to
others”. Although privacy may be a value common to most societies, its recognition as an
enforceable right in various legal systems has been relatively recent.
The French Declaration of Rights of Man4 and the American Bill of Rights5 both have fairly
specific declarations on the freedom of expression, but no equivalent general statement of the
Right to Privacy. It is heartening to see that the US courts did a good job in protecting Right
to Privacy.

VIEW ON PRIVACY BY FOREIGN COURTS AND FOREIGN CONSTITUTIONS:

In an English case of Douglas v Hello Ltd6, it was held that:

2
The Right to Privacy, Samuel D. Warren; Louis D. Brandeis Harvard Law Review, Vol. 4, No. 5. (Dec. 15,
1890), pp. 193-220
3
Alan F. Westin, Privacy and Freedom, 25 Wash. & Lee L. Rev. 166 (1968)
4
Declaration of Human and Civic Rights, 1789, France
5
"The Charters of Freedom: The Bill of Rights". Washington D.C.: National Archives and Records
Administration.
6
Douglas v Hello Ltd [2001] QB 967

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“What the House [in Campbell] agreed upon was that the knowledge, actual or imputed,
that information is private will normally impose on anyone publishing that information
the duty to justify what, in the absence of justification, will be a wrongful invasion of
privacy.”

It was further argued that reliance must be placed upon the judgment of Sedley LJ 7 in
Douglas case, where it was said that:

"What a concept of privacy does, however, is accord recognition to the fact that the law
has to protect not only those people whose trust has been abused but those who simply
find themselves subjected to an unwanted intrusion into their personal lives. The law no
longer needs to construct an artificial relationship of confidentiality between intruder
and victim: it can recognise privacy itself as a legal principle drawn from the
fundamental value of personal autonomy."

In another English case R v The Commissioner of Police of the Metropolis8 was a case
concerning the extent of the police's power (under guidelines issued by the Association of
Chief Police Officers- the ACPO guidelines) to indefinitely retain biometric data associated
with individuals who are no longer suspected of a criminal offence. The UK Supreme Court,
by a majority held that the police force's policy of retaining DNA evidence in the absence of
'exceptional circumstances' was unlawful and a violation of Article 8 of the European
Convention on Human Rights. Lord Dyson, on behalf of the majority, held that:

“The present ACPO guidelines are unlawful because they are incompatible with article 8
of the ECHR. I would grant no other relief.”

Griswold v. Connecticut9 was the first leading case of United States where the Supreme Court
quashed a Connecticut law prohibiting the use of contraceptives by a married couple. By a 7-
2 majority, the court ruled that the government measure was against the right of marital
privacy. In 1969, in Stanley v. Georgia10, the attempt of the Georgia government to convict
the possessor of an obscene film in his house was frustrated. The Supreme Court ruled that
along with the idea of fundamental right to receive information there is also “the right to be

7
Ibid.
8
R v The Commissioner of Police of the Metropolis (2011) UKSC 21
9
Griswold v. Connecticut 381 US 479 (1965)
10
Stanley v. Georgia 394 U.S. 557 (1969)

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free except in very limited circumstances from unwarranted governmental intrusions into
one’s privacy”.
Then in 1973 in Roe v. Wade11, the US Supreme Court disallowed a Texas Statute forbidding
abortion except to save the life of the mother. The court found the measure violative of a
mother’s Right to Privacy. In this case, thus an unmarried pregnant woman was allowed
abortion, as the court found no compelling state interest in such a measure.
In 1992, a landmark decision was given involving the names and home addresses of returned
Haitian refugees. In Department of State v. Ray12, the US Supreme Court overturned a lower
court order that would have required disclosure of personal identifying information for
possible use in pending immigration proceedings. Writing for the court, Justice John Paul
Stevens first determined that release of the Haitian interviewees identities “would be a
significant invasion of their privacy because it would subject them to possible embarrassment
and retaliatory action”. Disclosure under the circumstances of the case could be regarded as
“a special affront” to their privacy interests.

In United States, in Kyllo v. United States13, the U.S. Supreme Court found that the use of a
thermal imaging device, aimed at a private home from a public street, to detect relative
amounts of heat within the private home would be an invasion of the privacy of the
individual.

Also in, United States v Jones14, it was held unanimously that installing a Global Positioning
System (GPS) tracking device on a vehicle and using the device to monitor the vehicle's
movements constitutes a search under the Fourth Amendment.

In South Africa, the right to privacy has been enshrined in Section 14 of the Bill of Rights15.
Section 14 provides that:

“Privacy- Everyone has the right to privacy, which includes the right not to have-
(a) their person or home searched;(b) their property searched; (c) their possessions seized; or
(d) the privacy of their communications infringed.”

11
Roe v. Wade, 410 US 113 (1973)
12
Department of State v. Ray. 502 U.S. 164 (1991)
13
Kyllo v. United States 533 US 27 (2001)
14
United States v Jones 565 US 400 (2012)
15
1996 Constitution of South Africa

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In South African case of National Media Ltd v Jooste16, Justice Harms defined privacy in the
following terms:

“Privacy is an individual condition of life characterized by exclusion from the public and
publicity. The condition embraces all those personal facts which a person concerned has
determined him to be excluded from the knowledge of outsiders and in respect of which
he has the will that they be kept private”

On the ambit of the right to privacy, the Court held that: “A right to privacy encompasses the
competence to determine the destiny of private facts...the individual concerned is entitled to
dictate the ambit of disclosure ...the purpose and method [of] the disclosure... when and
under what conditions private facts may be made public. A contrary view will place undue
constraints upon the individual's so-called “absolute rights of personality”… It will also
mean that rights of personality are of a lower order than real or personal rights”.

In another South African Case, NM and Others v Smith and Others17 (2007) Court Stated,

“…. The more intimate that information, the more important it is in fostering privacy,
dignity and autonomy that an individual makes the primary decision whether to release
the information....Secondly, we value privacy as a necessary part of a democratic
society and as a constraint on the power of the state... In authoritarian societies, the
state generally does not afford such protection…”

On the inter-relationship between the right to privacy, liberty and dignity, the Court observed
that: “The right to privacy recognises… it highlights the inter-relationship between privacy,
liberty and dignity as the key constitutional rights which construct our understanding of what
it means to be a human being. All these rights are therefore inter-dependent and mutually
reinforcing. We value privacy for this reason at least – that the constitutional conception of
being ….”

Although the Canadian Charter of Rights and Freedoms of 198218 (“the Charter”) does not
explicitly provide for a right to privacy, certain sections of the Charter have been relied on by

16
National Media Ltd v Jooste, 1996 (3) SA 262 (A)
17
NM and Others v Smith and Others, 2007 (5) SA 250 (CC)

18
Bill of rights entrenched in the Constitution of Canada

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the Supreme Court of Canada to recognize a right to privacy. Most notably, Section 8 19
(Provides as follows: “Everyone has the right to be secure against unreasonable search or
seizure.”) (the Canadian version of the Fourth Amendment of the US Constitution) has been
employed in this respect.

In Canadian landmark case, Her Majesty, The Queen v Brandon Roy Dyment20 (1988)

“Privacy is at the heart of liberty in a modern state...Grounded in man's physical and

moral autonomy, privacy is essential for the well-being of the individual. For this
reason alone, it is worthy of constitutional protection, but it also has profound
significance for the public order. The restraints imposed on government to pry into the
lives of the citizen go to the essence of a democratic state.”

On the importance of informational privacy, it was held:

“This notion of privacy derives from the assumption that all information about a person
is in a fundamental way his own, for him to communicate or retain for himself as he
sees fit... In modern society, especially, retention of information about oneself is
extremely important. We may, for one reason or another, wish or be compelled to
reveal such information, but situations abound where the reasonable expectations of
the individual that the information shall remain confidential to the persons to whom,
and restricted to the purposes for which it is divulged, must be protected.”

In Europe, there are two distinct but related frameworks to ensure the protection of the right
of privacy. The first is the European Convention on Human Rights (ECHR)21 and The second
is the Charter of Fundamental Rights of the European Union (CFREU)22.

Article 823 of the ECHR provides that: “Right to respect for private and family life”Under the
Charter, the relevant provisions are: Article 724: Respect for private and family life and
Article 8: Protection of personal data

19
Canadian Charter, Section 8
20
Her Majesty, The Queen v Brandon Roy Dyment [1988] 2 SCR 417
21
An international agreement to protect human rights and fundamental freedoms in Europe
22
A treaty enshrining certain political, social, and economic rights for the European Union.
23
European Convention on Human Rights
24
Charter of Fundamental Rights of the European Union

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MANDIA’S COMMITMENTS UNDER INTERNATIONAL LAW

The recognition of privacy as a fundamental constitutional value is part of Mandia’s

commitment to a global human rights regime. Article 5125 of the Constitution, which forms
part of the Directive Principles, requires the state to endeavor to “foster respect for
international law and treaty obligations in the dealings of organized peoples with one another.

Article 1226 of the UDHR, recognizes the right to privacy: “Article 12: No one shall be
subjected to arbitrary interference with his privacy, family, home or correspondence, nor to
attacks upon his honor and reputation. Everyone has the right to the protection of the law
against such interference or attacks”

Similarly, Article 1727 the ICCPR provides: “Article 17: The obligations imposed by this
article require the State to adopt legislative and other measures to give effect to the
prohibition against such interferences and attacks as well as to the protection of the right.”

The ICCPR28 casts an obligation on states to respect, protect and fulfil its norms. The duty of
a State to respect the right mandates that it must not violate the right. The duty to protect the
right mandates that the government must protect it against any interference, even by private
parties. The duty to fulfil norms postulates that government must take steps towards
realization of a right. While elaborating the rights under Article 17 29, general comment
specifically stipulates that:
“..there is universal recognition of the fundamental importance, and enduring relevance,
of the right to privacy and of the need to ensure that it is safeguarded, in law and
practice.”

Significantly, while acceding to the ICCPR30, Mandia did not file any reservation or
declaration to Article 17. Therefore, we are mandated to recognize right to privacy and
safeguard it.

25
Constitution of India, 1950
26
Universal Declaration of Human Rights, 1948
27
International Covenant on Civil and Political Rights, 1966
28
Ibid.
29
Ibid.
30
Ibid.

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In the present case, there is no contradiction between the international obligations assumed by
state of Mandia and the Constitution. There is no such inconsistency between Indian laws
which would make courts not to readily presume Privacy to be fundamental. Our
constitutional provisions must be read and interpreted in a manner which would enhance their
conformity with the global human rights regime31.

MANDIAN JUDICIAL RESPONSE TO PRIVACY

The law on the Right to Privacy was almost well settled and the current controversy was
unnecessary. The case in which the issue of Right to Privacy was indirectly raised was M.P
Sharma32 (1954), where the central question was about the state power of search and seizure.
The court strangely pointed out the lack of specific provisions on the Right to Privacy in the
Constitution like the Fourth Amendment of the US Constitution providing for the right of the
people to be secure in their persons, houses, papers, and other effects against unreasonable
search and seizure under the Mandian Constitution and concluded in just one sentence that in
such a situation we could not import a Right to Privacy in Mandia.
In Kharak Singh33 case, The six judges conceded the common law maxim that ‘everyman’s
home is his castle’ and held the regulations as unconstitutional but yet again in one small
sentence judgement said that there was no fundamental Right to Privacy in India. But then
there was a powerful dissenting judgement of Justice Subba Rao who argued that even
though the Right to Privacy was not specifically mentioned yet it was a necessary ingredient
of the right to personal liberty.
In Gobind34 this minority opinion of Kharak Singh35 case became the majority opinion.
Justices Matthew, Krishna Iyer and Goswami, JJ accepted the view that there does exit a
Right to Privacy in India.
They certainly realized as Brandies, J. said in his dissent in Olmstead v. United States36, the
significance of man’s spiritual nature, of his feelings and his intellect and that only a part of
the pain, pleasure, satisfaction of life can be found in material things and, therefore, they
must be deemed to have conferred upon the individuals as against the government, a sphere
in which he should be left alone. The court without being hampered by precedent

31
Justice K S Puttaswamy (Retd.), And Anr. v, Union Of India And Ors., Part K Pg 130, (Writ Petition (Civil)
No 494 Of 2012
32
M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300
33
Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295
34
Gobind v State of Madhya Pradesh, (1975) 2 SCC 148
35
Iboid
36
Olmstead v United States, 277 US 438 (1928)

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consciousness held the Right to Privacy as an independent fundamental right, emanating from
the rights to personal liberty, freedom of speech and the freedom of movement. (the US Court
reviewed whether the use of evidence disclosed in wiretapped private telephone
conversations by federal agents, without judicial approval violated privacy) Then in Malak
Singh37, the court went a step ahead and held that surveillance was intrusive and seriously
encroached on the Right to Privacy guaranteed by Article 2138 and 19(1) (d).
In Madhu Kumar Narain39, the ambit of the Right to Privacy was further enlarged when the
court rightly held that even woman of easy virtue had a Right to Privacy and no one was
entitled to invade her privacy.
In Neera40, where a probationer with the Life Insurance Corporation during medical
examination had given a false declaration about her last menstruation period, the court found
clauses such as regularity of menstrual cycle and number of conceptions, etc. as violation of
the Right to Privacy and ordered deletion of such columns.
In Raja Gopal41, the apex court declared that even a person condemned to death by the court
had the Right to Privacy which was a fundamental right under Article 21.
In People's Union of Civil Liberties vs Union of India and Anr42, after referring to the cases
of Gobind v state of Madhya Pradesh43 and Kharak Singh vs State of UP44, it was finally
stated that privacy as a right is imbibed within the meaning of “life” and “personal liberty”
under Article 21. Court in the present case observed in para 18:
“18. We have, therefore, no hesitation in holding that right to privacy is a part of the
right to "life" and "personal liberty" enshrined under Article 21 of the Constitution.
Once the facts in a given case constitute a right to privacy, Article 21 is attracted.”
The apex court declared that telephone tapping did violate the Right to Privacy which was an
integral part of not only the right to personal liberty but also freedom of speech and
expression.
Then in Hinsa Virodhak Sangh45 laid down that food preferences i.e. vegetarian or non-
vegetarian are included within the Right to Privacy. In case the court observed:

37
Malak Singh v State of Punjab and Haryana, (1981) 1 SCC 420
38
Constitution of India,1950
39
State of Maharashtra v Madhukar Narayan Mardikar, (1991) 1 SCC 57
40
Mrs. Neera Mathur Vs. Life Insurance Corporation of India and Anr, AIR 1992 SC 392
41
R. Rajagopal vs State Of T.N, 1995 AIR 264
42
PUCL v. Union of India, (1997) 1 SCC 301
43
Gobind v State of Madhya Pradesh, (1975) 2 SCC 148
44
Kharak Singh vs. The State of U.P. and Ors. 1962 (1) SCR 332
45
Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat, (2008) 5 SCC 33

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“What one eats is one's personal affair and it is a part of his right to privacy which is included
in Article 21 of our Constitution as held by several decisions of this Court.”
In District Registrar and Collector, Hyderabad v Canara Bank46, a judgement by 2 judge
bench reaffirmed the fact that right to privacy emanates from liberties under Article 19 and
from protection of life and personal liberty under Article 21. Secondly, the right to privacy is
construed as a right which attaches to the person. In the view of the Court, even if the
documents cease to be at a place other than in the custody and control of the customer,
privacy attaches to persons and not places and hence the protection of privacy is not diluted.
Thirdly, information provided by an individual to a third party (in that case a bank) carries
with it a reasonable expectation that it will be utilized only for the purpose for which it is
provided. Parting with information (to the bank) does not deprive the individual of the
privacy interest. The reasonable expectation is allied to the purpose for which information is
provided. The decision in Canara Bank47 has thus important consequences for recognizing
informational privacy.

PRIVACY FROM THE LENSES OF CONSTITUENT ASSEMBLY

It has been widely stated that by not explicitly putting notion of privacy in part 3 of the
constitution, they intended to keep it out from the fundamental rights altogether, is not right.
Therefore, it would be outside the realm of constitutional adjudication for the Court to
declare a fundamental right to privacy48. The argument merits close consideration. The
debates of the Constituent Assembly indicate that the proposed inclusion (which was
eventually dropped) was in two specific areas namely correspondence and searches and
seizures. From this, it cannot be concluded that the Constituent Assembly had expressly
resolved to reject the notion of the right to privacy as an integral element of the liberty and
freedoms guaranteed by the fundamental rights.

In conclusion a significant point to note is that it was a unanimous judgement of the nine-
judges bench. It must not have been an easy task to speak in a “one voice” on this complex
issue of privacy. The learned Judges must have debated among themselves a lot and looked at
the issue from all the angles. It was clear that they had kept in mind the consistent and sound

46
District Registrar and Collector, Hyderabad v Canara Bank, (2005) 1 SCC 496
47
Ibid.
48
B. Shiva Rao, The Framing of India’s Constitution, Indian Institute of Public Administration (1967), Vol. 2

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judicial interpretations. Unanimously, the court did not permit dilution of civil liberties49. The
court saved the country “from the neo-colonialism” where private foreign companies have
got the monopoly in storing personal information of more than 110 crore Mandians.

II. WHETHER THE PEHCHAAN ACT, 2014 IS VIOLATIVE OF THE PROVISIONS OF

THE CONSTITUTION OF MANDIA

Pehchaan act is violation of Art. 1450 on the application of the twin-test of classification,
which is there should be a reasonable classification and that this classification should have
rational nexus with the objective sought to be achieved51
First test is met as individual assesses form a separate class and, to this extent, there is a
rational differentiation between individuals and other categories of assesses.
But the second limb of the twin-test of classification is not satisfied because there is no
rational nexus with the object sought to be achieved.
Objectives of the pehchaan act are as follows:
• It is also meant to save duplicity of identities such as election cards, PAN cards
• The Pehchaan is meant to identify citizens for various benefits given by the government
and to check the leakage in government schemes and to prevent corruption happening in
PDS and other subsidy providing schemes of the government. Basically, the philosophy
behind this policy is ‘Zero Tolerance for corruption’.
Even if the State succeeds in showing a proper purpose and a rational connection with the
purpose, thereby meeting the test of Article 1452, the impugned law clearly fails on clauses
(iii) (narrow tailoring) and (iv) (balancing) of the proportionality test53 of the above decision.
The State has failed to show that mandatory Linking of pehchan card with its accompanying
consequences for the life of an individual is narrowly tailored to achieving its goal.
In accordance with the arguments advanced above, the State’s own data 54 shows that the
problem of duplicate PANs or Election cards was minuscule, and the gap between the tax
payer base and the PAN Card holding population can be explained by plausible factors other

49
Justice K S Puttaswamy (Retd.), And Anr. v, Union Of India And Ors., Writ Petition (Civil) No 494 Of 2012
50
Article 14, Constitution of Mandia, 1950
51
R.K. Dalmia v. Justice S.R. Tendolkar, (1959) SCR 279
52
Article 14, Constitution of Mandia, 1950
53
R.K. Dalmia v. Justice S.R. Tendolkar, (1959) SCR 279 also in Modern Dental College and Research Centre
& Ors. v. State of Madhya Pradesh, (2016) 7 SCC 353
54
Binoy Viswam v. Union of India, Writ Petition(Civil) No.247 Of 2017, Supreme Court of India

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than duplicates and forgeries. There is no wisdom compelling 99.6% of the taxpaying
citizenry to enroll for Pehchaan (with the further prospect of seeding) in order to weed out the
0.4% of duplicate PAN Cards, as it fails the proportionality test entirely.
On the principle of proportionality, it is submitted that this principle was applied in the R.K.
Dalmia55 case as per the following passage:
“11 … (d) that the Legislature is free to recognize degrees of harm and may confine its
restrictions to those cases where the need is deemed to be the clearest; (e) that in order
to sustain the presumption of constitutionality the court may take into consideration
matters of common knowledge, matters of common report, the history of the times and
may assume every state of facts which can be conceived existing at the time of
legislation;…”
The affected persons by the objectives are individuals including people who are professionals
like lawyers, doctors, architects etc. and lakhs of businessmen having small or micro
enterprises. If the linking of Pehchaan to PAN and bank account is made mandatory then
there is a direct infringement to Art. 19(1)(g)56. Once it is shown that the right under Art.
19(1)(g)57 has been infringed, the burden shifts to the State to show that the restriction is
reasonable, and in the interests of the public, under Art. 19(6)58 of the Constitution. The
correct test to apply in the context of Art. 19(6)59 was the test of proportionality60
The right to life extends to allowing a person to preserve and protect his or her finger prints
and iris scan. Thus every individual or citizen in this country has complete control over
his/her body and State cannot insist any person for giving his/her finger tips or iris of eyes, as
a condition precedent to enjoy certain rights. 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 but the state merely acts as a trustee or fiduciary. The trustee or
fiduciary cannot compel the “beneficiary” to part with such sensitive person information.
According to John Locke, “Though the Earth, and all inferior Creatures be common to all
Men, yet every Man has a Property in his own Person,” and Salmond reminds us that he
speaks “of a man’s right to preserve his own property i.e. his life, liberty and estate.”61

55
R.K. Dalmia v. Justice S.R. Tendolkar, (1959) SCR 279
56
Article 19(1)(g), The Constitution Of Mandia 1950 - to practise any profession, or to carry on any occupation,
trade or business
57
ibid
58
Article 19(6), The Constitution Of Mandia 1950
59
ibid
60
Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh, (2016) 7 SCC 353
61
Benson Peter, Philosophy of Property Law, Oxford University Press

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With today’s technology, there is every possibility of copying the fingerprint and even the iris
images. Various cases of fake Pehchaan Card had come to light and even as per the
Government’s statement, 3.48 lakh bogus Pehchaan Cards were cancelled.62. There were
instances of Pehchan leak as well. Even hacking is possible63.
Hence,
The impugned provision coerces the individuals to part with their private information which
was a part of human dignity64 and, thus, the said provision was violative of Art. 21 of the
Constitution as it offended human dignity.
In Maneka Gandhi v. Union of India65, it was stated:
"procedure which deals with the modalities of regulating, restricting or even rejecting a
fundamental right falling within Art. 21 has to be fair, not foolish, carefully designed to
effectuate, not to subvert, the substantive right itself".
Republic of Mandia is a sovereign country, its governance is controlled by the provisions of
the Constitution which sets parameters within which three wings of the State, namely,
Legislature, Executive and Judiciary has to function. Thus, no wing of the State can breach
the limitations provided in the Constitution which employs an array of checks and balances to
ensure open, accountable government where each wing of the State performs its actions for
the benefit of the people and within its sphere of responsibility. The checks and balances are
many and amongst them are the respective roles assigned by the Constitution to the
legislature, the executive and the judiciary. Provisions in the Constitution such as the
fundamental rights chapter (Part III) and the chapter relating to inter-state trade (Part XIII)
also circumscribe the authority of the State. These limitations on the power of the State
support the notion of ‘limited government’66. In this sense, the expression ‘limited
government’ would mean that each wing of the State is restricted by provisions of the
Constitution and other laws and is required to operate within its legitimate sphere. Exceeding
these limits would render the action of the State ultra vires the Constitution or a particular
law.
This notion of a limited government is qua the citizenry as a whole. 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 including

62
Binoy Viswam v. Union of India, Writ Petition(Civil) No.247 Of 2017, Supreme Court of India
63
Paras 18 and 19 moot proposition
64
Justice K S Puttaswamy (Retd.), And Anr. v, Union Of India And Ors.)( Writ Petition (Civil) No 494 Of 2012
65
Maneka Gandhi v. Union of India, 1978 AIR 597
66
State of Madhya Pradesh & Anr. v. Thakur Bharat Singh, AIR 1967 SC 1170

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finger prints and storing 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. 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 her biometrics.
The distinction between an individual or person and the State is the single most important
factor that distinguishes a totalitarian State from one that respects individuals and recognizes
their special identity and entitlement to dignity. The Constitution67 does not establish a
totalitarian State but creates a State that is respectful of individual liberty and constitutionally
guaranteed freedoms. The Constitution68 is not a charter of servitude.
There can be no question of free consent in situations where an individual is being coerced to
part with its biometric information (a) to be eligible for welfare schemes of the State; and/or
(b) under the threat of penal consequences. In other words, the State cannot compel a person
to part with biometrics as a condition precedent for discharge of the State’s constitutional and
statutory obligations, it has to be voluntary
Art. 2169, guarantees the protection of “personal autonomy” of an individual 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.70
In Sunil Batra & Anr. v. Delhi Administration & Ors71.
“55. And what is “life” in Art. 21? In Kharak Singh case72 Subba Rao, J. quoted Field, J.
in Munn v. Illinois73 to emphasise the quality of life covered by Art. 21 “Something more
than mere animal existence. The inhibition against its deprivation extends to all those
limbs and faculties by which life is enjoyed.” A dynamic meaning must attach to life and
liberty.”

67
The Constitution of Mandia, 1950
68
ibid
69
Article 21, The Constitution of Mandia,1950
70
Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1
71
Sunil Batra & Anr. v. Delhi Administration & Ors, 1980 AIR 1579
72
Kharak Singh v The State Of U. P. & Others, 1963 AIR 1295
73
Munn v. Illinois, 94 US 113 (1877)

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In general, in common law it is the right of every individual to have the control of his own
person free from all restraints or interferences of others74
In the United States this right is reinforced by a constitutional right of privacy. This is known
as the principle of self-determination or informed consent. the informed consent doctrine has
become firmly entrenched in American Tort Law. The logical corollary of the doctrine of
informed consent is that the patient generally possesses the right not to consent, that is, to
refuse treatment75
Hence, the right to life and liberty and personal liberty under Art. 2176 covers and extends to
a person’s right to protect his or her 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.
In conclusion
The basic structure test propounded by the apex court77, if any law encroaches upon the
fundamental rights guaranteed under part III of the constitution, then such law would be
against basic structure of the constitution and would be void. This test was reaffirmed in
Minerva Mills Ltd. & Ors v Union Of India & Ors78 and I.R. Coelho (Dead) v State Of Tamil
Nadu & Ors79

PEHCHAAN ACT AND PRIVATE ENTITIES

Furthermore, the main objective of the Pehchaan confines itself only to governmental entities.
However, the Act also allows private persons to use Pehchaan as a proof of identity for any
purpose. Thus allowing private agencies to use Pehchaan contradicts statement of objects and
reasons of the Bill.
There is a possibility of misuse of personal information parted with by the citizenry in the
form of biometrics i.e. finger prints and iris scan. The requirement of enrolment for Pehchaan
is designed to facilitate and encourage private sector operators to create applications that
depend upon the Pehchaan data base for the purposes of authentication/verification. This
would mean that non-governmental, private sector entities such as banks, employers, any
point of payment, taxi services, airlines, colleges, schools, movie theatres, clubs, service

74
Aruna Ramachandra Shanbaug v. Union of India & Ors, (2011) 4 SCC 454
75
Schloendorff v. Society of New York Hospital 211 NY 125 : 105 NE 92 (1914)
76
Article 21 in The Constitution Of Mandia 1950- Protection of life and personal liberty No person shall be
deprived of his life or personal liberty except according to procedure established by law
77
Kesavananda Bharati v State Of Kerala And Anr, (1973) 4 SCC 225
78
Minerva Mills Ltd. & Ors v Union Of India & Ors, 1981 SCR (1) 206
79
I.R. Coelho (Dead) By Lrs v State Of Tamil Nadu & Ors, AIR 2007 SC 861

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providers, travel companies, etc. will all utilize the Pehchaan data base and may also insist
upon an Pehchaan number or Pehchaan authentication. This would mean that at every stage
in an individual’s daily activity his or her presence could be traced to a location in real time.
One of the purposes of Pehchaan is that it will be a single point verification for KYC 80. This
is permissible and indeed contemplated by the impugned Act. Given the very poor quality of
scrutiny of documents by private enrollers and enrolment agencies (without any
governmental supervision) means that the more rigorous KYC process at present being
employed by banks and other financial institutions will yield to a system which depends on a
much weaker data base. This would eventually imperil the integrity of the financial system
and also threaten the economic sovereignty of the nation.
The provision by laying down Mandatory enrolment of Pehchaan becomes discriminatory
qua that class and, therefore, is violative of Art. 1481 of the Constitution. Thus it enforces
conformity as it fails to satify the two test.82
In the case of Subramanian Swamy v. Director, Central Bureau of Investigation & Anr83.:

“58. The Constitution permits the State to determine, by the process of classification,
what should be regarded as a class for purposes of legislation and in relation to law
enacted on a particular subject. The basis of classification must be sound and must have
reasonable relation to the object of the legislation. If the object itself is discriminatory,
then explanation that classification is reasonable having rational relation to the object
sought to be achieved is immaterial.”

Pehchaan by its very design and by its statute is “voluntary” 84 and creates a right in favour of
a resident without imposing any duty. There is no compulsion under the Pehchaan Act to
enroll or obtain a number. 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 Mandia.
Sec. 3 of the Pehchaan Act spells out that enrollment of Pehchaan is voluntarily and
consensual and not compulsory or by way of executive action. Whereas there was a total

80
Know Your Customer
81
Article 14 in The Constitution Of Mandia 1950 -Equality before law The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth
82
Nagpur Improvement Trust & Anr. v. Vithal Rao & Ors, 1973 AIR 689
83
Subramanian Swamy v. Director, Central Bureau of Investigation & Anr, (2014) 8 SCC 682
84
Binoy Viswam v. Union of India, Writ Petition(Civil) No.247 Of 2017, Supreme Court of India

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reversal of the aforesaid approach by the high court of Nelhi. This mandating was
unconstitutional.
The Pehchaan Act came into force on August 11, 2014. The Parliament continued to maintain
Pehchaan as a voluntary scheme vide Sec. 3 of the said Act. If Parliament so desired, it could
have removed the basis of this Court’s order by: (i) Amending Sec. 3 so that Pehchaan is
made compulsory for every resident of Mandia; or (ii) Introducing either a proviso or adding
a sub-section in Sec. 3 to the following effect:

“Notwithstanding anything contained in sub-section (1), the Central Government may

notify specific purposes for which obtaining Pehchaan numbers may be made
mandatory in public interest.”

As long as the Pehchaan enactment holds the field, there is an implied limitation on the
power of Parliament not to pass a contrary law.
Also, there was no compelling state interest in having introducing compulsive element and
depriving from erstwhile voluntary nature of Pehchaan scheme. The ‘proportionality of
means’ concept85 is an essential one since integrating data beyond what is really necessary for
the stated purpose is clearly unconstitutional.
In light of the decision in the case of Gobind v. State of Madhya Pradesh86, which has been
the position of this Court since the past forty-two years and has been cited with approval
often, the State has the onerous burden of justifying the impugned mandatory provision. The
‘compelling state interest’ justification is only one aspect of the broader ‘strict scrutiny’ test87
The other essential facet is to demonstrate ‘narrow tailoring’, i.e., that the State must
demonstrate that even if a compelling interest exists, it has adopted a method that will
infringe in the narrowest possible manner upon individual rights. There is no compelling
State interest warranting such a mandatory provision.
Sec. 2988 puts a blanket embargo on using the core biometric information, collected or
created under the Pehchaan Act for any purpose other than generation of Pehchaan numbers
and authentication under the Pehchaan Act. The impugned provision further confirms
voluntary in nature, there was no question of making this very provision mandatory.

85
R. v. Oakes, (1986) 1 S.C.R. 103
86
Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148
87
Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1
88
Section 29, Pehchaan Act, 2014

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In Olga Tellis & Ors. V.Bombay Municipal Corporation & Ors. Etc89.

“It is far too well-settled to admit of any argument that the procedure prescribed by law
for the deprivation of the right conferred by Art. 2190 must be fair, just and reasonable.”

The government has argued that access to benefits can only occur upon the surrendering of
privacy. The real issue is not whether, in the abstract, citizens can surrender their
fundamental rights if they so choose. It is whether the government can impose waiver of
fundamental rights as a condition for accessing certain benefits. With respect to Pehchaan,
the the debate has been framed around the needs of poorer citizens to access government
benefits. For many of these citizens, the choice between accessing benefits and losing privacy
is a false choice, because it requires them to choose between a privilege that is essential for
their livelihood, and a fundamental right.
After the Right to Privacy Judgement in KS Puttaswamy v Union of India91
The right to privacy is a fundamental right. The question is can it then be waived voluntarily?
The Supreme Court in Behram v State of Maharashtra92 examined this question and stated
that fundamental rights were not kept in the Constitution merely for individual benefits.
Fundamental rights were a matter of public policy and thus, the doctrine of waiver does not
apply in case of fundamental rights. In other words, a citizen cannot ‘give up’ his
fundamental rights. Later, in the Basheshar Nath case93 limiting their decision to Art. 14,
held that the right conferred by the article, could not be waived.

DOCTRINE OF UNCONSTITUTIONAL CONDITIONS

The Supreme Court in 1974 elaborated the doctrine of unconstitutional condition

In Ahmedabad St Xavier’s College v State of Gujarat94 as

“any stipulation imposed upon the grant of a governmental privilege which in

effect requires the recipient of the privilege to relinquish some constitutional right.”

‘The doctrine of unconstitutional condition’ means any stipulation imposed upon the grant of
a governmental privilege which in effect requires the recipient of the privilege to relinquish

89
Olga Tellis & Ors. v.Bombay Municipal Corporation & Ors. Etc, 1986 AIR 180
90
Article 21, Constitution of Mandia, 1950
91
Justice K S Puttaswamy (Retd.), And Anr. v, Union Of India And Ors., Writ Petition (Civil) No 494 Of 2012
92
Behram v State of Maharashtra, AIR 1955 SC 123
93
Basheshar Nath vs. the Commissioner Of Income-tax, Delhi & Rajasthan, 1959 AIR 149
94
Ahmedabad St Xavier’s College v State of Gujarat, 1975 SCR (1) 173

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some constitutional right. This doctrine emphasizes the right he is conceded to possess by
reason of an explicit provision of the Constitution,
Justice Sutherland of the US Supreme Court had spelt out how an unconstitutional condition,
in the garb of voluntariness, gives the carrier no choice “except a choice between the rock
and the whirlpool – an option to forego a privilege which may be vital to his livelihood or
submit to a requirement which may constitute an intolerable burden.”95
This is much the same as what Das, C.J. said:” No educational institutions can in actual
practice be carried on without aid from the State and if they will not get it unless they
surrender their rights, they will, by compulsion of financial necessities, be compelled to give
up their rights under Art. 30(1) “96.
This doctrine posits that a condition attached to the grant of a governmental benefit is
unconstitutional if it requires the relinquishment of a constitutional right97. Unconstitutional
condition on the receipt of a public benefit and came within the rule of cases like Perry v.
Sindermann98
The government may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests-especially.99
In Re Kerala Education Bill100 and Ahmedabad St Xavier’s College101 make it clear that by
putting citizens in a position where they have to make a choice between a necessity and the
waiver of fundamental rights, the government is effectively giving them no choice at all,
and is restricting their fundamental rights indirectly, by providing an illusion of choice and
waiver.
The power of the state is not unlimited; and one of the limitations is that it may not
impose conditions which require relinquishment of constitutional rights. It is
inconceivable that guarantees embedded in the Constitution of the United States may
thus be manipulated out of existence.

In chapter 7 of the Pehchaan regulations, there is a provision for a grievance redressal

mechanism whereby a person can approach a call centre through phone or email which will
provide residents with a tracking number till the matter is closed. But this is not enough.

95
Frost & Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 594 (1926)
96
In RE: The Kerala Education Bill, 1959 1 SCR 995
97
Hale, Unconstitutional Conditions and Constitutional Rights, 35 COLU m. L. REV. 321 (1935)
98
Perry v. Sindermann., 408 U.S. 593 (1972)
99
Speiser v. Randall, 357 U.S. 513, 526 (1958)
100
In RE: The Kerala Education Bill, 1959 1 SCR 995
101
Ahmedabad St Xavier’s College v State of Gujarat, 1975 SCR (1) 173

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There is no requirement for the call centre to give you a reasoned order like a public authority
does. The regulations are also weak on grievance redressal, and are completely absent on
authentication and data security. decision.
DATA MAINTAINED BY PEHCHAAN IS SENSITIVE DATA

“Nobody claims it is not a social justice welfare scheme. What they are worried about is that
whether information given to the agencies will be safe and for that do you have a robust law.
And if you don’t then you must have one,” Justice Chandrachud102
Pointing out that Pehchaan “enrollers”, who collect citizens’ data and biometrics, are private
parties and there is serious threat of misuse or leakage of data “There are cases where such
information has been commercially sold. The law says life and body is paramount and if the
fingerprints of an individual are stolen, it might end his identity. If we fail here, there is
tremendous possibility that state will dilute civil liberties and dominate its citizens. The
concept of civil liberties will go then.”
In this new world the data is the new "oil", be it the governments or the companies all want
your data. Public Distribution System(Ration), Health information, Mobile Number,
Financial Details, Purchases, Loans, Violations, Travel information, PAN, Electricity
consumption, Water consumption of a person are all linked to the Pehchaan, which is nothing
but their detailed profile. Thus, Pehchaan is mass surveillance technology. Unlike, targeted
surveillance which is a good thing, and essential for national security and public order —
mass surveillance undermines security.
Data collected by government is not safe and it can be leaked to private entities very easily
threatening the life and liberty of the citizens, viz. 13 crore data of citizens was leaked from
Pehchaan. Moreover, recently an IIT passed graduate hacked into Pehchaan database to use
its data for his online payment App.103
Critics say the Pehchaan identity card links enough data to allow profiling because it creates a
comprehensive profile of a person's spending habits, their friends and acquaintances, the
property they own, and a trove of other information. There are fears the data could be
misused by a government.
Many 3rd parties are creating private database with Pehchaan information and interlinking
the identity with other sources. Eg: If a company combines Pehchaan information with e-

102
Justice K S Puttaswamy (Retd.), And Anr. v, Union Of India And Ors.)( Writ Petition (Civil) No 494 Of
2012
103
Para 19 and 20, Moot Proposition

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commerce transactions, it can provide a very detailed profile of an individual. Thus,

Pehchaan makes it easier to compare and combine diverse databases. Moreover, when
NUIDA started its work of making Pehchaan cards, it assigned this task to private entities
having expertise in this field. These private entities further outsourced this work to private
vendors in every district and block of Mandia to provide Pehchaan cards to the citizens by
taking their basic details like finger prints of both the hands, scanning of iris of the eyes,
blood group, spouse and child(ren) details, their educational qualifications, number of
spouses, the religion to which both spouse belong to, laws under which marriage is
solemnized, details of life-threatening diseases like AIDS, Cancer and Hepatitis-B,
permanent infertility both in male and female and criminal/civil cases pending in any court
and government loan or any other liability on the citizen.104 This kind of process will lead to
misuse of sensitive information in the hands of unauthorised people.
The other issue with binding so much information of a citizen, including their bank accounts,
to their Pehchaan card is if another country were to hack to Pehchaan database. Mandia deals
with frequent cyber-attacks from China and Pakistan.
Republic of Mandia has no specific legislation focusing on data protection. A few principles
of data protection are scattered through IT Act, Guidelines issued by RBI, TRAI etc105
The Lok Sabha Standing Committee on Finance report on the Bill had given the United
Kingdom’s example to raise concerns over Pehchaan’s security. (Incidentally, the UK had
abandoned its ID project due to “high cost, unsafe, untested technology and the changing
relationship between the state and the citizen.”)
Field researchers have noted that in Rajasthan, for example, since Aadhaar was made
compulsory for buying ration, over 25% ration card holders, or 25 lakh families, have not
been able to draw their supplies. During the seeding, over ten lakh pensioners were removed
from the government’s lists, written off for dead. Many of them were later found to be alive
but their pensions had been stopped106.
This is a major concern as Sec. 29 of the Pehchaan Act states that:

“(4) No Pehchaan number or core biometric information collected or created under this
Act in respect of an Pehchaan number holder shall be published, displayed or posted
publicly, except for the purposes as may be specified by regulations.”

104
Para 5, Moot Proposition
105
http://www.livelaw.in/data-protection-india/
106
Binoy Viswam v. Union of India, Writ Petition(Civil) No.247 Of 2017, Supreme Court of India

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In February 2017, UIDAI lodged criminal complaints against Axis Bank, Suvidha Infoserve,
eMudhra for illegally storing and using Aadhaar data to impersonate people and carry out
transactions. Allegedly, Suvidhaa Infoserve and e-sign provider eMudhra had conducted
multiple transactions using the same fingerprint, which implied that organisations are
illegally storing biometric data on their servers.107

Furthermore, there is the question of whether or not the government’s bureaucracy 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. Just
recently
Recently, MS Dhoni’s Aadhaar card details had made headlines. It wasn’t technology, but a
star-struck government official who had made the blunder.

Willis on Constitutional Law108, at page 89 :-"A judicial declaration of the

unconstitutionality of a statute neither annuls nor repeals the statute but has the effect of
ignoring or disregarding it so fact as the determination of the rights of private parties is
concerned. The courts generally say that the effect of an unconstitutional statute is
nothing. It is as though it had never been passed.......".

The Pehchaan Act states that information will not be disclosed except “in interest of national
security in pursuance of a direction of an officer not below the rank of Joint Secretary to the
Government of Mandia specially authorised in this behalf by an order of the Central
Government.” But there is no specific definition of ‘national security’ in the Act. Effectively,
the Act gives the government the power to reveal information in the Pehchaan database in the
name of ‘national security’.
Ms. Pillay’s report109 insisted that known and accessible remedies need to be made available
to those whose privacy is violated, the Pehchaan legislation does no such thing. The remedies
are supposed to include thorough and impartial investigation and the option of criminal
prosecution for gross violation. The Pehchaan Bill excludes courts from taking cognisance of
offences under the legislation, requiring that the authority that runs Pehchaan consent to
prosecution for any action to be taken under the legislation.
107
Axis Bank Limited v. Suvidhaa Infoserve Private Limited & Anr.:(Commercial Suit (Lodg.) No. 108 of
2017)
108
Willis Huge Evander, Constitutional Law Of United States, 1936, The Principia Press
109
Navi Pillay(UN High Commissioner for Human Rights), ‘The Right to Privacy in the Digital Age’, Report
UN

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PRAYER

IN THE LIGHT OF LAW POINTS PUT FORTH, CASES CITED AND ARGUMENTS
ADVANCED IT IS MOST HUMBLY PRAYED TO THIS COURT:

1. To uphold the order passed by the Hon’ble Supreme Court declaring Right to
Privacy as a Fundamental Right under the Constitution of Mandia.
2. To set aside the order of the High Court of Nelhi holding Pehchaan Act, 2014 as
constitutional and making Pechchaan mandatory.
3. To declare Pehchaan Act, 2014 and Pehchaan Policy as illegal and violative of
constitutional provisions of Mandia.
4. To give any other order which the court deems fit in the interest of justice.

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