BEFORE THE HON’BLE SC OF INDIANA

IN THE MATTER OF :

THE UNION OF INDIANA[PETITIONER]

V
MS MEDHA SINGH[RESPONDENT]
ON SUBMISSION TO THE HONBLE SC OF INDIANA

WRITTEN SUBMISSION ON BEHALF OF PETITIONER

SUBMITTED TO SUBMITTED BY
SARITA MA’AM NAMRATA BHATIA

1
2
Table of CONTENTS………………………………………………………….3
List of Abbreviation...........................................................................................4
List of Authorities.............................................................................................5
Cases Referred..................................................................................................5
Books Referred.......................................................................................6
Legal Databases.......................................................................................7
Lexicons................................................................................................7
Legislations............................................................................................8
Conventions...........................................................................................8
Statement of Jurisdiction......................................................................................9
Statement of Facts............................................................................................10
Issues Presented..............................................................................................12
Summary of Pleading........................................................................................13
Detailed Pleadings....................................................................................................14
I. Whether there is any “right to privacy” guaranteed under our Constitution....14
[I.1] Development of Right to privacy in Indiana.............................................14
[I.2] Right to be let alone in conjunction to Foreign Cases...............................15
[I.3] Privacy Jurisprudence from Past Indian Case Laws.................................16
[I.4] CONCEPTION OF PRIVACY AS UNDERSTOOD FROM LEGISLATIVE
ACTIONS........................................................................................17
[1.5] The implementation of the UIDAI has breached the right to privacy of the
citizens...........................................................................................18
[I.5.i] No Data Protection Laws.........................................................19
[I.5.ii] Ultra-vires Scheme................................................................20

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[I.5.iii] UID compromises the bodily integrity of each of us by snatching away an
intimate aspect of our physical identity......................................................20
[I.5.iv] Similar Project in UK struck down.............................................21
II. Whether UIDAI has any Legal Basis?
[II.1] Executive order not sufficient to set up an institution, without being passed from
Legislature.......................................................................................22
[II.1.i] Limits of Executive power.......................................................22
[II.1.ii] Rules of Procedure and Conduct of Business in Lok Sabha.....................23
[II.1.iii] design faults in UIDAI.........................................................26
[II.1.iii] serious security concerns........................................................28
Prayer..........................................................................................................29
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LIST OF ABBREVATIONS
▪ AIR..................................................................................All India Report
▪ Regd.......................................................................................Registered
▪ Co..........................................................................................Company
▪ Edn/Ed......................................................................................Edition
▪ ER.................................................................................English Reporter
▪ Anr........................................................................................Another
▪ Ors...........................................................................................Others
▪ Etc...........................................................................................Etcetera
▪ Vol.........................................................................................................................Volume
▪ SC.....................................................................................Supreme Court
▪ SCC............................................................................Supreme Court Cases
▪ SCR...........................................................................Supreme Court Record
▪ Id. ................................................................................................Ibid
▪ Ltd.............................................................................................Limited
▪ No...........................................................................................Number
▪ Pg./p............................................................................................Page
▪ ¶..............................................................................................................................Paragraph
▪ Hon’ble.............................................................................................................Honourable
▪ u/s.......................................................................................Under Section
▪ UOI.....................................................................................Union of India
▪ CJ.....................................................................................................................Chief Justice
▪ UID............................................................................................................Unique Identification
▪ UIDAI..........................................................................Unique Identification Authority of India
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INDEX OF AUTHORITIES

CASES REFERRED
Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295 14, 15, 16
Thornburgh v. American College of Obstetricians & Gynecologists, 476 US
747, 772 (1986)
5 15
I.R Coelho V. State of Tamil Nadu AIR 2007 SC 861 15
R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264 15
Kesavananda Bharti Sripadagalvaru &Anr. v. State of Kerala & Ors., AIR
1973 SC 1461.
16
Olmstead v. United States, 277 US 438 (1928) 16
Griswold v. Connecticut, 381 U.S. 479 (1965) 16
Justice K.S.Puttaswamy(Retd). v. Union Of India & Ors, Writ Petition
(Civil) No.494 Of 2012
16
District Registrar v. Canara Bank,(2005) 1 SCC 496 16
Mehmood N. Azam v. State of Chhattisgarh, Civil Appeal No. 5703/2012. 16
PUCL v. Union of India, (1997) 1 SCC 301 16
Mr. X v. Hospital Z, (1998) 8 SCC 296 16

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Sharda v. Dharmpal, (2003) 4 SCC 4931 16
Griswold v. Connecticut, 200 A.2d 479, 381 U.S. 479 (1965)
17
Eisenstadt v. Baird, 1029 L.2d 349,405 US 438 (1972). 17
M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300 17
Ambica Quarry Works v. State of Gujarat, (1987) 1 SCC 213 18
R. C. Cooper v. Union of India, (1973) 3 SCR 530 18
Roe v. Wade, 410 U.S 113(1973). 18
Selvi v. State of Karnataka 2010(7) SCC 263 19
A.K Gopalan v. Union of India, (1950) SCR 88 20
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378 20
Maneka Gandhi v. Union of India, 1978 SCR (2) 621 20
Malak Singh v. State of Punjab (1981) 1 SCC 420 20
Ram Jethmalani and Others v. Union of India and Others, (2011) 8 SCC 1 19
Bishan Dass vs. State Of Punjab, (1961) AIR 1570 22
6

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BOOKS REFERRED

1. Basu, Durga Das, Shorter Constitution Of India 396 (14

th

ed., 2012)
2. Row, Sanjiva, Hand Book of Indian Copyright Act, 1957 (6
th

ed., 2014)
3. Aggrawal, J.P., Pleadings and Precedents in India (3
rd

ed., 2012)
4. Shukla, V.N. , Constitution of India – (12th Ed., 2014)
5. Jain, M.P., Indian Constitutional Law – (7
th

Ed. 2014)
6. Volumes I and II Basu, Durga Das, Commentary on the Constitution of India – (8th Ed.,
2012)
7. Prasad, Rajendra, Law of Social Status, 5th Ed. 1998, Hindu Law House.
8. Seervai, H.M., Constitutional law of India, 4th Ed. 2002, Volume 2, Universal Book
Traders.
9. Joga Rao, S.V., Computer Contracts And Information Technology Law 970 (Wadhwa &
Nagpur) (2003).
RESEARCH PAPERS/ REPORTS REFERRED
1. Jean Slemmons Stratford & Juri Stratford, Data Protection and Privacy in the United
States and Europe, Paper presented at the IASSIST Conference, May 21, 1998, at Yale
University, New Haven, Connecticut.
2. Robert Aldrich, Privacy Protection Law in the United States, (NTIA Report 82-98) in
U.S. Congress. House. Committee on Government Operations. Oversight of the Privacy
7

8
Act of 1974: Hearings. 98th Congress, 1st Session, 7-8 June 1983, 489
(Y4.G74/7:P93/11/974).
3 . S. Bhushan, “The Uid Project: The 1984 Of Our Times”, NALSAR L.J 13(2013).
4 . Shyam Divan, The Aadhaar trap: Why you should be really, really worried, 7th NLSIR
Symposium at National Law School, Bangalore, (Dec. 28, 2015).
5. Gopal Krishna, Biometric NPR makes Indians worse than prisoners, violates Citizenship
Act, Census Act and constitutional rights , (Dec. 28, 2015),
http://www.toxicswatch.org/2014/06/biometric-npr-makes-indians-worse-than.html.
6. Forty-Second Report Standing Committee On Finance (2011-2012).

LEGAL DATABASES REFERRED

1. Manupatra Online Resources, http://www.manupatra.com.

2. Lexis Nexis Academica, http://www.lexisnexis.com/academica.
3. SCC Online, http://www.scconline.co.in.
4. Oxford Dictionary, http://www.oxforddictionaries.com
5. Supreme Court of India, http://supremecourtofindia.nic.in/
6. West Law, http://www.westlawindi
7. Hein Online, http://home.heinonline.org/
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LEXICONS

1. Aiyar Ramanathan P , Advanced Law Lexicon, 3 rd Edition, 2005, Wadhwa Nagpur.

2. Garner Bryana, Black‟s Law Dictionary,7th Edition,1999

LEGISLATIONS
1. The Constitution of India, 1950
2. Information Technology Amendment Act 2008
3. Right to Information Act 2005
4. The Telecom Unsolicited Commercial Communications Regulation, 2007
5. INDIAN TELEGRAPH ACT, 1885
6. THE INCOME TAX ACT, 1961
7. U.S. Privacy Act of 1974
8. U.S. Computer Matching and Privacy Act, 1988
CONVENTIONS
1. United Nation Declaration of Human Rights, 1948
2. International Convention on Civil and Political Rights, 1966
3. International Covenant on Economic, Social and Cultural Rights, 1966

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 JURISDICTION

It is humbly submitted before the Supreme court of Indiana , the memorandum for
the petitioner under article 32 of the Constitution of INDIANA

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j
4. United Nation Declaration on Indigenous People, 2007

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ISSUES PRESENTED

ISSUE I –

Whether there is any “right to privacy” guaranteed under our Constitution?

➢ Is ‘Right to Privacy’ a fundamental right?

➢ Whether collection of data and biometrics under the UID scheme violates it?

ISSUE II –

Whether UID Scheme has any legal basis?

➢ Whether the manner of passing Janaadhhar act is

against the constitutional convention?

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SUMMARY OF ARGUMENTS

ISSUE I: Whether there is any “right to privacy” guaranteed under our Constitution?

It is most respectfully submitted before the Hon’ble Court that privacy rights has been developed
though cases to protect the interest of the people. It is contented that the constitution of this
country has been respected for upholding the fundamental rights of the citizens; the right to
privacy though not expressly mentioned in the constitution holds an implied value in this regard
and is well within the ambit of Art. 21 of the constitution which guarantees that “no person shall
be deprived of his personal life or liberty”. The expression ‘personal life’ and ‘liberty’ in Art. 21
is comprehensive enough to include privacy also which is necessary for an individual to live a
dignified life.

ISSUE II: Whether UID Scheme has any legal basis?

It is humbly submitted before the Hon’ble court that the authority in question i.e. UIDAI
JANAadhaar is totally based on an executive order which imposes a restriction on individual’s
fundamental human and natural right, right to privacy. Then executive order issued for
establishment UIDAI is void and contradictory to supreme court judgment .So it is having no
known valid force of law as many authorities has also raised questions regarding
the nature of establishment of UIDAI without getting sanction from legislature. Moreover it is to
be noted here that there are design faults in UIDAI and they could be categorized as a)
Workingin absence of statutory backup B issuing of card to person who is considered to be
illegal immigrants.
1 Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, ¶ 38 (per SUBBA RAO, J.).

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 ARGUMENTS ADVANCED

I. Whether there is any “right to privacy” guaranteed under our Constitution?

The Counsel for the petitioners most humbly submits before this honorable court that the
constitution of this country has been respected for upholding the fundamental rights of the
citizens, the right to privacy though not expressly mentioned in the constitution holds an implied
value in this regard and is well within the ambit of Art. 21 of the constitution which guarantees
that “no person shall be deprived of his personal life or liberty”. The expression ‘personal life’
and ‘liberty’ in Art. 21 is comprehensive enough to include privacy also which is necessary for
an individual to live a dignified life The issue in hand deals with the question of existence of the
fundamental right to privacy in the ambit of Indiana Constitution here it would be appropriate to
define privacy, privacy has been derived from the Latin word: privatus meaning thereby
“separated from rest”. Moreover the concept of privacy rests on the promise that “a certain
private sphere of individual liberty will be kept largely beyond the reach of government”
3

[I.1] Development of Right to Privacy in Indiana – It is most respectfully submitted before

the Hon’ble Court that privacy rights has been developed though cases to protect the interest of
the people. Even this court in its recent judgment upon this matter has said - “In early days the
scope of the guarantee provided by these rights was considered to be very narrow. Individuals
could only claim limited protection against the state”4. This position has changed when the
2 Id.
3 Thornburgh v. American College of Obstetricians & Gynecologists, 476 US 747, 772 (1986).
4 I.R Coelho V. State of Tamil Nadu AIR 2007 SC 861

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Supreme Court held that the “right to privacy was a fundamental right, enforceable against
private persons as well”5 and made it clear that they are not limited or narrow rights but provide
a broad check against the violations or “excesses by the state authorities the narrow interpretation
of fundamental rights chapter”6 is a thing of past. It is to be considered that if a fundamental
rights,
does not have an explicit mention that does not mean that it can be said to have no existence at
all on the contrary “the fundamental rights themselves have no fixed content; most of them are
empty vessels into which generation must pour its content in the light of its experienc[I.2] This
right was laid down in the Fourteenth Amendment of US Constitution, as was
confirmed in Olmstead v. United States8 wherein dissenting judge, Brandeis, J., defined privacy
as "the right to be left alone". It was in Griswold v. Connecticut9 that, for the first time, general
constitutional right to privacy, free of the Fourth and Fifth Amendments was established. In our
country too, the word ‘personal liberty’ is construed in a liberal form to include the right to
privacy; here also it has been termed as “right to be let alone”10. It is a part of dignity which has
been declared as a non-negotiable `constitutional right flowing from the spirit of constitution and
explicitly guaranteed under right to life & personal liberty in article 2111.
5 R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, ¶10, 16 (per B.P. REDDY, J.).
6 Supra 2
7 Kesavananda Bharti Sripadagalvaru &Anr. v. State of Kerala & Ors., AIR 1973 SC 1461.
8 564, 72 L, Ed. 944 277 U.S. 438. (1928).
9 1678, 14 L. Ed.2d 510, 381 U.S. 479, (1965).
10 Supra 5
11 Mehmood N. Azam v. State of Chhattisgarh ,(2012) 8 S.C.R 651

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It is most respectfully submitted that as the honorable court stated the compromis in Gobind v.
State of M.P. & Another12that the right to privacy has to go through a case by case development
process; the later cases of R. Rajagopal v. State of Tamil Nadu13 and PUCL v. Union of
India14
have confirmed the existence of Right to Privacy of an individual. Even in the case of District
Registrar v. Canara Bank15the Supreme Court acknowledged all Supreme Court precedents
which accepted the fact that right to privacy is implied in the Constitution of Indiana 16.The U.S
Supreme Court also while considering the question of privacy has held that “right to privacy
should be recognized as a penumbral extension of substantive fundamental rights”17. The
meaning of this right to privacy was rightly held by the supreme court of U.S as “if the right to
privacy means anything, it is the right of the individual, to be free from unwarranted government
intrusion”18.
[I.3] Privacy Jurisprudence from the Past Cases – It is to be considered that the
respondents
have placed strong reliance over the precedential value of this court’s judgment in M.P Sharma
& others. v. Satish Chandra & others19 and Kharak Singh v. State of U.P. &others20where it
12(1975) 2 SCC 148
13 Supra 10
14 (1997) 1 SCC 30
15 (2005) 1 SCC 496.
16 In pertinent part the Supreme Court held the following: “The right to privacy has since been widely accepted as
implied in our Constitution, in other cases, namely, PUCL v. Union of India, (1997) 1 SCC 301; Mr. X v. Hospital
'Z', (1998) 8 SCC 296; PUCL v. Union of India, (2003) 4 SCC 399; Sharda v. Dharmpal, (2003) 4 SCC 4931.”
17 Griswold v. Connecticut, 200 A.2d 479, 381 U.S. 479 (1965)
18 Eisenstadt v. Baird, 1029 L.2d 349,405 US 438 (1972).
19 AIR (1954) SC 300.
20Supra 6.

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was observed that the right to privacy is not guaranteed under the constitution and that we have
no justification to import it, but this is not a valid argument. In regard to the M.P Sharma’s case
the contention of the respondent is baseless as the part of the judgment cited by the respondent in
relation to the right to privacy is the decision which was specifically limited to the scope of
Article 20(3) and according to settled law as to the binding effect of precedents, was “an
authority for what it actually was decided”21, the judgment was the obiter dicta of the case;
hence it is not binding upon this honorable court. Also it should be considered that in the case of
Malak Singh v. State of Punjab22 this court has held that “surveillance is intrusive and is an
encroachment upon the right to privacy”; hence it is unfit to rely upon such cases, and hence the
claim of respondents is baseless. In respect to Kharak Singh’s it is submitted that the reason for
denial to a ‘fundamental’ right to privacy was that the this case was overruled by an 11- Judge
bench of this court in the case of R.C Cooper v. Union of India23 and makes it clear that the
main premise in relation to the privacy was not tenable24. Moreover it should be considered that
the case was decided at the time when the A.K Gopalan25 approach was followed which
emphasized strictly on the “procedure established by law” which meant that even article 21
provided no immunity against competent legislative action. But the trends changed in the post
emergency period where this court sensing the need for protection of individual’s right, in the
21 Ambica Quarry Works v. State of Gujarat, (1987) 1 SCC 213
22 (1981) 1 SCC 420.
23 (1973) 3 SCR 530.
24 Venkatesh Nayak, Indian Constituion Was Written Up, Enforced Without Explicit Recognition Of Individual’s
Privacy As Fundamental Right, publ., Dec 28, 2015
25 A.K Gopalan v. Union of India, (1950) SCR 88.
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Maneka Gandhi’s26case not only broadened the meaning of “personal liberty” but also adopted
the theory of “due process” in “procedure established by law”, which in itself protects the right
to privacy27, it overruled the majority view in Kharak Singh’s case regarding the
interrelationship between Articles 19 and 21.

In Selvi v. State of Karnataka28court adopted a even wider meaning by holding that “personal
knowledge of a fact”. It emphasized personal autonomy, holding that revealing a personal fact
was entirely in the domain of the individual’s decision making, which must be free from
interference.
[I.4] CONCEPTION OF PRIVACY AS UNDERSTOOD FROM LEGISLATIVE ACTIONS
– Recent legislative trends indicate a wider acceptance of the right with the passing of the
Information Technology Amendment Act 2008, and Right to Information Act 200529 the latter
making exceptions to the powers granted to citizens with regard to safeguarding the right to
privacy of individuals. Further, the tenor in which the legislature perceive the right may be
observed by examining the explanatory memorandum30 of The Telecom Unsolicited
Commercial
Communications Regulation, 2007 which mentions the right to privacy of consumers as being a
determinative factor for the passing of the Regulation by the Govt. of India’s international
26 Maneka Gandhi v. Union of India, (1978) AIR 597.
27 Roe v. Wade, 410 U.S 113(1973).
28 2010(7) SCC 263
29 Right to Information Act 2005 ,22 of 2015§. 8 (1) (j) (2005) provides that there shall be no obligation to give any
citizen information the disclosure of which would cause unwarranted invasion of the privacy of the individual unless
the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied
that the large public interest justifies the disclosure of such information).
30 Explanatory Memorandum - The Telecom Unsolicited Commercial Communications Regulation 2007, (Last
visited on 28 December 2015) ,http://www.trai.gov.in/trai/upload/Regulations/65/Regulation5june07.pdf

19

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obligations to protect this hallowed ground further made sacrosanct by various Conventions such
as the International Covenant on Civil and Political Rights,31 and Universal Declaration of
Human Rights,32 both of which in Art. 17 and Art. 12 reaffirm the right to privacy and as have
been signed by Indiana and are not contrary to our municipal law,33 are to be further
incorporated
in our legislative mechanism.
It is humbly submitted that the learned Counsels of Respondents have been claiming from the
outset that the Right to Privacy is not mentioned in the Constitution but while considering the
issue of Public Interest Litigation the great justice P.N Bhagwati observed that, “ In order to
treat a right as a fundamental right, it is not necessary that it should be expressly stated in the
constitution as fundamental right” he even went on further and held that “political, social and
economic changes in the country entail the recognition of new rights. The law grows to meet the
demands of the ever evolving society” and considering the present issue in question, the law has
been growing on it on a case to case basis. Hence the Counsels from Petitioners side would urge
the apex court to declare Right to Privacy as a Fundamental Right. We strongly state that though
Right to Privacy is not embedded in our Constitution, Government has no authority to
straightaway implement any policies defying privacy rights to its citizens.

[I.5] The implementation of the UIDAI has breached the right to privacy of the citizens –

It is most respectfully submitted before the Hon’ble bench that the above arguments have
established beyond doubt that the “right to privacy” is well within the ambit of art. 21. The
31 International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at
52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.
32 Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).
33 S.V. Joga Rao, Computer Contracts And Information Technology Law 970 (Wadhwa & Nagpur) (2003).

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UIDAI so formed is for profiling the residents of the nation, the profiling which will include
biometric data collection is inherently dangerous because it tracks individuals based on their
religious, behavioral and/or biological traits. History is replete with examples wherein such
profiling has been used for genocide, holocaust and violence against all kinds of minorities.
The fact is that Hon’ble Supreme Court of India conclusively established privacy jurisprudence
on 4th July 2011 by its judgment in the Ram Jethmalani and Others v. Union of India and
Others34 case (the Black Money Case). Hon’ble Court held: “Right to privacy is an integral part
of right to life. This is a cherished constitutional value and it is important that human beings be
allowed within the domains of freedom that are free of public scrutiny unless they act in an
unlawful manner....as constitutional adjudicators we always have to be mindful of preserving the
sanctity of constitutional values, and hasty steps that derogate from fundamental rights, whether
urged by governments or private citizens, howsoever well meaning they may be, have to be
necessarily very carefully scrutinized35.”

[I.5.i] No Data Protection Laws – In US the major (generic) laws for privacy and data
protection are the Privacy Act of 197436 and Computer Matching and Privacy Act.37
Privacy
Act was adopted both, to protect personal information in federal databases and to provide
individuals with certain rights over information contained in those databases. The Act has been
characterized as “the centerpiece of U.S. privacy law affecting government record-
34 (2011) 8 SCC 1
35 Ibid
36 5 U.S.C. § 552a
37 Jean Slemmons Stratford & Juri Stratford, Data Protection and Privacy in the United States and Europe, Paper
presented at the IASSIST Conference, May 21, 1998, at Yale University, New Haven, Connecticut.

21

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keeping”.38 The Act also requires federal agencies of US to publish an annual list of systems
maintained by the agency that contain personal information which are subject to scrutiny. It is to
be considered here that the UIDAI is not covered under any data-protection laws as we do not
have it till date. Moreover it is not a statutory body and currently there is no legislation
governing it. It has been established by way of an Executive Order nd passed as a money bill
has not been passed yet. In the absence of the Supreme Court’s order in the present case and any
law governing the information available with UIDAI, this,
information could have been potentially shared with other national agencies (such as the CBI)
with impunity. In fact, in the absence of the Supreme Court’s Order, the UIDAI could have
shared this information with private agencies as well. No consent has been taken from citizens
when providing their biometric information that it may be used in future potential investigations
against them. This would also be in breach of an individual’s right against self-incrimination
under Article 20(3) of the Constitution. Hence in the prevailing situation when the right to
privacy has became an integral part of a man’s dignity and that the country does not have data
protection and privacy legislations, this authority is breaching the right to privacy of the citizens.
[I.5.ii] The UID project is destructive of limited government which is built into the
Constitutional scheme and is part of the Basic Structure of the Constitution of Indiana.. Limited
government is transgressed by breaching bounds of personal autonomy guaranteed to every
person under the Constitution. There is no statute to back the impugned project but even if there
were one, the statute would be ultra-vires the Constitution. The project is also ultra-vires because
38 Robert Aldrich, Privacy Protection Law in the United States, (NTIA Report 82-98) in U.S. Congress. House.
Committee on Government Operations. Oversight of the Privacy Act of 1974: Hearings. 98th Congress, 1st Session,
7-8 June 1983, 489 (Y4.G74/7:P93/11/974).

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there is no statutory guidance (a) on who can collect biometric information39; (b) on how the
information is to be collected; (c) on how the biometric information is to be stored; (d) on how
throughout the chain beginning with the acquisition of biometric data to its storage and usage,
this data is to be protected; (e) on who can use the data; (f) on when the data can be used.
[I.5.iii] Aadhaar is wrong because it compromises the bodily integrity of each of us by snatching
away an intimate aspect of our physical identity. It is wrong because it is no part of the business
of the government of Indiana to create a vast data bank of biometrics that can be used and
abused,against Indianas.

The Aadhaar project with its enormous potential of surveillance alters the
relationship between citizen and state. It tilts the balance so steeply in favor of government that a
citizen whose biometrics is controlled by the state is permanently condemned to submission. A
central bank of biometric data robs individuals of dignity assured by the Preamble to the
Constitution. It also gives an inordinate amount of power to those in government controlling the
levers of power against every outsider. The Constitution of Indiana has a morality which
prohibits
an Orwellian state40.
[I.5.iv] It is submitted that UIDAI and related projects like NPR treats every Indian as a subject
of surveillance unlike UK which abandoned a similar project (that used to be cited by Wipro Ltd
in promotion of UID) because it is "untested, unreliable and unsafe technology” and the”
possible risk to the safety and security of citizens.” It is evident that a large part of our
constitution is derived from the English jurisprudence and it will be pertinent to note that UK
Home Secretary on a similar project in U.K explained that they were abandoning the project
39 S. Bhushan, “The Uid Project: The 1984 Of Our Times”, NALSAR L.J 13(2013).
40Shyam Divan, The Aadhaar trap: Why you should be really, really worried, 7th NLSIR Symposium at National
Law School, Bangalore, Dec. 28, 2015.

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24
because it would otherwise be 'intrusive bullying' by the state, and that the government intended
to be the 'servant' of the people, and not their 'master'41.
It is most respectfully submitted before this Hon’ble court that the arguments above have clearly
established that the most ambitious project of government i.e ‘UIDAI’ is infringing the right to
privacy of the citizens. It is submitted that the Government had put the cart before the horse, how
does Privacy Bill make sense when privacy of citizens is already violated through Aadhaar /UID
related tracking and profiling system being implemented. In the face of such assault on
Parliament’s prerogative, citizens’ rights and the emergence of a regime that is making
legislatures subservient to database and data mining companies, the urgent intervention of this
court is very important for the protection of citizen’s interest
41 Gopal Krishna, Biometric NPR makes Indians worse than prisoners, violates Citizenship Act, Census Act and
constitutional rights , (Dec. 28, 2015), http://www.toxicswatch.org/2014/06/biometric-npr-makes-indians-worse-
than.html.

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25
ISSUE II: Whether UIDAI has any Legal Basis?

[II.1] Executive order not sufficient to set up an institution, without being passed from
Legislature

– It is humbly submitted before the Hon’ble court that the authority in question i.e.
UIDAI Aadhaar is totally based on an executive order which imposes a restriction on
individual’s fundamental human and natural right, right to privacy. Then executive order issued
for establishment UIDAI is void and contradictory to supreme court judgment .So it is having no
known valid force of law as standing committee on finance has also raised question regarding the
nature of establishment of UIDAI without getting sanction from legislature.

[II.1.i] Limits of Executive Power – While the executive power of the Union, and of the
States, is co-extensive with the legislative power of the Union and the States, this is a provision
that sets out the limits of the power. These are not provisions that are meant to make Parliament,
or the legislatures, redundant. While executive power cannot extend beyond the legislative power
of the Union and the States, Parliament and the legislatures can, and routinely do, set out the
terms on which the executive is to function. This is also how 'delegated legislation' or
'subordinate legislation' has to be within the extent of the 'parent statute'. It is also to be
considered that even the standing committee has recommended that the “Government to
reconsider and review the UID scheme was also the proposals contained in the Bill in all its
ramifications and bring forth a fresh legislation before Parliament”42. Supreme Court in year
1961 in a landmark case related to non-validity of executive order “Bishan Dass vs. State Of
Punjab”43 observed that restriction on a fundamental right can be imposed only through a statue,
42 FORTY-SECOND REPORT STANDING COMMITTEE ON FINANCE (2011-2012).
43 (1961) AIR 1570

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statutory rule or statutory regulation. A fundamental right cannot be put under restraint merely
by an executive direction or order.

[II.1.ii] It is most respectfully submitted before the Hon’ble that the upper house of the
parliament passed the bill without even considering and in total contravention of the
recommendation made by the standing committee. It is to be considered here that the rule 331 E
of the Rules of Procedure and Conduct of Business in Lok Sabha empowers the standing
committee to examine the issue and provide the report. It is true that the Parliament is not bind
by the report of the standing committee but rule 331 N categorically states that “ the report shall
have persuasive value and shall be treated as considered advice”, but in the present situation the
upper house of the parliament ignored the recommendations in toto44. This is a clear indication
that to pass its ambitious project the government has even went on to take measures in
contravention of the rules.
[II.1.iii] It is to be noted here that there are design faults in UIDAI and they could be
categorized as a) Working in absence of statutory backup b) Issuing the cards to ‘residents’. In
respect to the first fault is that though we agree that the competence of the Executive is not
limited to take steps to implement the law proposed to be passed by Parliament, but it will be a
plain misconception to think that the executive can do what it pleases, including in relation to
infringing constitutional rights and protections for the reason that Parliament and legislatures
have the power to make law on the subject.
[II.1.iii] Serious security concerns – It is most respectfully submitted that a resident who
does not possess any documentary proof of identity or proof of address can obtain an Janaadhaar
44 Facts Dossier Pg. 4 ¶1.

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more acceptable alternative.
The counsel for the petitioners contends that entrusting the responsibility of verification of
information of individuals to the registrars to ensure that only genuine residents get enrolled into
the system may have far reaching consequences for national security. Given the limitation of any
mechanism such as a security audit by an appropriate agency that would be setup for verifying
the information etc., “it is not possible that complete verification of information of Jan aadhaar
number holders be done; and it is even not sure whether it would deliver the intended results
without compromising national security”45.
Even the Ministry of Home Affairs has risen “serious security concerns over the
efficacy of introducer system, involvement of private agencies in large scale in the scheme may
become a threat to national security”
45 Supra Note 42 at Pg. 29 ¶2
46 Ibid at Pg.31 ¶2

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As respondent raised question regarding the fact that DUPLICITY OF IDENTITIES is posing a
huge threat to democratic structure of our country as it challenges the system of free and fair
election , which is the basic pillar of our country as they said linking of janaadhaar card will help
in increasing the tax as it connected with it and with LPG subsidies as well because here
government is trying to fear individuals by way of linking all such things , together thereby in
this manner it is some how became important for individuals to have their JANAADHAAR
because in case they don’t have it than they will not be able to gain certain necessary benefits lke
of LPG nd all..
Government is trying to address here that there this policy is just because to have ZERO
TOLERANCE FOR COORUPTION but what what about all those things because of which all
persons personal information is leaking , than where are there rights .
Recently personal information of 13 crores citizens Of INDIANA leaked from the portal of
Janaadhaar database and now is in the hands of somr private companies and is uded for
telemarketing .
As for now government is having no proper machinery to keep a check regading security
concerns.

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MULTIPLICITY OF JANADHAAR

As the issue is raised it becomes very clear from the evident fact
that in a sting operation performed by the journalist NALIN
MISHRA , and he is associated with NEWS NETWORK , 24
and as he conducted the sting operation and claimed that it was
possible to obtain two separate JANAADHAAR enrollement cards with same set
of biometrics , questioning the security system of UIDAI
There fore it was claimed that it is not safe to link anything with JAN ADHAAR .

Students of Indiana university AMAN SRIVASTAVA AND TANYA KUMARI ,

hacked the UIDAI server nd pulled out it for their app purpose
Another case was filed under Information Technology, for leaking information of
private data and more than of fifty thousand individuals and seeing such facts the
important question raising here is if information can be leaking as seen in aforesaid
fact than how much transparent and where is the security of the people of Indiana.
Wish court could take strict action to cancel such authentication which is claiming
beneficial and all the information and privacy is hampering.

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 PRAYER

Wherefore, in the light of the questions raised, arguments advanced and authorities cited, it is
most humbly prayed and implored before the Hon’ble Supreme Court of Indiana that it may be
pleased to hold, adjudge declare and

(i)Pass such an order that Right to Privacy is a Fundamental Right and UID Scheme is
breaching our Fundamental Right to Privacy

And,
(ii) Also, pass further orders as the Hon’ble Supreme Court may deem fit and proper in the
facts and circumstances of the case.
All of which is most respectfully submitted.
(Counsel for the Petitioner)

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