TC: 10

9TH FYLC- RANKA NATIONAL MOOT COURT COMPETITION, 2019.

BEFORE THE HON’BLE REPUBLIC COURT OF INDIANA

WRIT PETITION

[UNDER ARTICLE 32 OF CONSTITUTION OF INDIANA]

JAGRUK LAW STUDENTS ASSOCIATION & ORS

…(PETITIONER)

V.

REPUBLIC OF INDIANA & ORS

…(RESPONDENT)

SUBMISSION BEFORE THE HONOURABLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE REPUBLIC COURT

MEMORIAL ON BEHALF OF THE PETITIONER

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INDEX

LIST OF ABBREVIATIONS.......................................................................................................IV

INDEX OF AUTHORITIES..........................................................................................................V

STATEMENT OF JURISDICTION..............................................................................................IX

SYNOPSIS OF FACTS.................................................................................................................X

ISSUES RAISED.........................................................................................................................XI

SUMMARY OF ARGUMENTS.................................................................................................XIII

ARGUMENTS/ PLEADINGS.......................................................................................................1.

[1] That the writ petition filed by the Petitioner under article 32 of the constitution of
Republic of Indiana is maintainable.............................................................................................

[1.1.] The Petitioner has Locus Standi to file the present writ petition

[1.2] The Writ of Mandamus is maintainable in the present petition…………………..

[1.3.] There is violation of The Fundamental Rights………………………………..

[2] That the Pehchan and other laws (Amendment) Ordinance, 2019 and the Pehchan (pricing
of Pehchan Authentication Services) is unconstitutional as it violates the fundamental rights
guaranteed under part III of the constitution of Republic of Indiana...........................................

[2.1.] Ambit of Right to Privacy…………………………………

[2.2.] Reintroduction of section 57 is unconstitutional……….…………………….

[2.3.] Offline verification introduced is severely flawed and jeopardize privacy of

an individual………………………………………………

[2.4.] SECTION 12 OF THE IMPUGNED ORDINANCE, WHICH AMENDS SECTION 33(2)

OF THE PEHCHAN ACT IS UNCONSTITUTIONAL…………………………...

[2.5.] The Executive's power to promulgate ordinances under Article 123 of the
Constitution of India was improperly exercised to amend the Aadhaar Act…….

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[3] The Public entities do not have the right to keep personal/ sensitive information and bio-
metric data of citizens of the Republic of Indiana and The Public entities will be liable in case
of breach or leakage of personal and sensitive information of citizen of Republic of Indiana....

[3.1.] The Public Entities do not have the right to keep any Personal and Sensitive
Information and Bio-metric Data of citizens of the Republic of
Indiana……………………

[3.2.] That the State shall be held liable in case of breach or leakage of Personal and
Sensitive Information of citizen of Republic of Indiana………………………………….

[4] Permitting the Pehchan database to link with the existing databases of services offered
under chapter IV of the Prevention of Money Laundering act,2002 and section 4 of The
Indian Telegraph Act,1885, poses a grave threat to national security after the pehchan and
other laws (amendment) Ordinance,2019....................................................................................

[4.1.] That Authentication process under the section 24 and 25 Pehchan and other laws
(Amendment) Ordinance, 2019 is severely flawed………………………...

[4.2.] Linking of the pehchan database with the prevention of money laundering act,
2002 includes assumption of criminality…………………..

[5] The current data protection methods adopted by the government does not prevent cyber
threats under IT Act,2000............................................................................................................

[5.1.] Section 43-A of the Information Technology Act,2000 applies only to bodies
corporate…………………………………………………………………

[5.2.] Sections 120-b, 379 and 420 of RIPC is in been violated by the Pehchan Act……
[5.3.] Violation of the Section 72-A of the Information Technology Act. 2000………

PRAYER.................................................................................................................................XVI

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LIST OF ABBREVIATIONS
S.NO ABBERVIATION EXPANSION
1. ¶ Paragraph
2. AIR All India Report
3. Anr. Another
4.. Cri Criminal
5. DLT Delhi Law Times
6. DRJ Delhi Reported Journal
7. ed. Edition
8. HC High Court
9. IPC Indian Penal Code
10. IT Information Technology
11. KYC Know Your Customer
12. M.P Madhya Pradesh
13. NP Notary Public
14. NCT National Capital Territory
15. No. Number
16. NOC No Objection Certificate
17. Ors. Others
18. P. Page No.
19. SBRI State Bank of Republic of Indiana
20. SC Supreme Court
21. SCC Supreme Court Cases
22. SCR Supreme Court Reporter
23. STC Summary Trial Case
24. TSP Telecom Service Provider
25. U. P Uttar Pradesh
26. UIDAI Unique Identification Authority of India
27. UOI Union of India
28. V. Verses
29 W. P Writ Petition

INDEX OF AUTHORITIES

JUDICIAL DECISIONS

1) Ajay Agarwal v. Union of India And Ors, 1993 AIR 1637………………………………

2) Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors. (1981) 1 SCC 7 22…………...

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3) Armymen's Protection Services (P) Ltd. v. Union of India, (2014) 5 SCC 409…………...
4) Avtar Singh v. State Of Punjab, 1965 AIR 666…………………………………………...
5) Bhageerathi Amma And Ors. V. Jeevankumar And Ors, 1982 CriLJ 91…………………..
6) Bharat Sanchar Nigam Limited And Another v. Union of India And Others,
CIC/DGEAT/A/2018/117567……………………………………………………………..
7) Bodhisattwa v. Subhra Chakraborty, AIR 1996 SC 922,926……………………………..
8) Coal India Limited v. Mukul Kumar Choudhuri, AIR 2010 SC 75……………………….
9) Common cause, a registered society v. Union of India, AIR 1999 SC at
3020………………
10) Daryao v. State of UP, AIR 1961 SC 1457……………………………………………….
11) Debashish Mandy v. Union of India, W.P. 15233 (W) of
2018……………………………...
12) Delhi Science Forum and others v. union of India and Another, (1996) 2 SCC 405……..
13) Dev Singh v. Punjab Tourism Development Corporation, 2003 SC 3712………………...
14) District Central Coop. Bank v. Employees Assn, (2007) 4 SCC 669……………………..
15) District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496…………………….
16) Dr. Sonal Asthana vs State of Karnataka, C.P No.1729 OF 2016………………………...
17) Firozuddin Basheeruddin & Ors vs State of Kerala Case Appeal (crl.) 357-359 of
1998……………………………………………………………………………………….
18) Francis Coralie Mullin v. Union of India, 1981 AIR 746…………………………………
19) Francis Coralie Mullin v. Union of India, 1981 SCR (2) 516…………………………….
20) Golaknath and Ors. vs State of Punjab and Anrs. 1967 SCR (2) 762……………………..
21) Guruswami v. Mysore, AIR 1954 SC 592………………………………………………..
22) Hindi Hitrakshak Samiti v. Union of India, (1990) 2 SCC 352…………………………..
23) Jadeda Meramanji Pragji And Anr. vs State Of Gujarat, 1963 CriLJ 713…………………
24) K.R.Srinivas v. R.M.Premchand (1994 (6) SCC 620)…………………………………...
25) Kazi Lhendup Dorji vs. Central Bureau 1994 Supp (2) SCC 116……………………….
26) Kesavan Nair vs State Of Kerala 2005 (3) KLT 391………………………………………
27) Keshavananda Bharati v. State of Kerala (1973) 4 SCC 225……………………………..
28) Kharak Singh v. State of UP, 1963 AIR 1295…………………………………………….
29) Kirandeep Kaur v. Regional Passport Office, AIR 2006 Del 2 ………………………….
30) KS Puttaswamy v. Union of India, (2017) 10 SCC
1………………………………………

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31) KS Puttaswamy v. Union of India, W.P (Civil) No. 494 of 2012…………………………

32) Lal Babu Hussein v. Electoral Registration Officer, (1995) 3 SCC 100…………………..

Magistrate, Kadapa, YSR District and others, W.P. No. 7915 of

2012…………………….

33) Malikireddy Vijaya Bhaskar Reddy vs The District Collector & District
34) Marsh v. Alabama (3) 326 U.S. 501: 19 L. 22 ed. 265……………………………………
35) Minerva Mills v. Union of India AIR 1980 SC 1789……………………………………...
36) Modern Dental College & Research Centre v. State of M.P, (2016) 7 SCC 353………….
37) Mr. X v. Hospital Z, AIR (1995) SC 95…………………………………………………...
38) Navtej Singh Johar & Ors v. Union of India W.P. (Cril) No. 76 of 2016…………………
39) Nikhil Merchant vs C.B.I. & Anr, S.L.P. (CRL) NO.6355 of 2005……………………….
40) Olga Tellis and Ors Vs. Bombay Municipal Corporation and Ors 1985 SCR Supl. (2)
51……………………………………………………………………………………………
41) Om Kumar v. Union of India AIR 2000 SC 3689………………………………………..
42) P. State Road Transport Corporation v. Subhash Chandra Sharma, (2000) 3 SCC
324………………………………………………………………………………………….
43) Parvati Kumar V. State of U.P, Case No. 3837 of 2008………………………..
44) People’s Union for Civil Liberties vs Union of India, AIR 1997 SC 568…………………
45) PIO, Housing and Urban Development Corporation Ltd. & Anr. v.Vishwas Bamburkar,
(2018) 186 AIC
687…………………………………………………………………………
46) Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. Council of
Scientific and Industrial Research, Civil Appeal No. 992 of 2002…………………………
47) Public Prosecutor vs Abdul Wahab And Ors. AIR 1964 Mad 367………………………..
48) R. Rajagopal v. State of T.N, (1994) 6 SCC 632…………………………………………
49) Ram Jethmalani v. Union of India, (2011) 8 SCC 1………………………………………
50) Ramana Dayaram Shetty v. International Airport Authority of India and Ors, (1979) 3
SCC
489…………………………………………………………………………………………..
51) Ramjas Foundation v. Union of India (AIR 1993 SC 852)………………………………
52) Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1 119-120....
53) Sandeep Singh Jadoun v. Central Public Information Officer, DGEAT
54) Sanjay Singh v. UP Public Service Commission, AIR 2007 SC 950…………………….

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55) Sharda v. Dharmpal, AIR (2003) SC 3450………………………………………………..

56) Sir Chunilal Mehta and Sons, Ltd. V. Century Spinning and Manufacturing Co. Ltd.
AIR 1962 SC
1314……………………………………………………………………………….
57) State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 …………………………….
58) State of Bihar v. Mangal Sao, AIR 1963 SC445………………………………………….
59) State of Madras v. Champakam Dorairajan AIR 1951 SC 226……………………………
60) Sukhdev and Ors. etc. v. Bhagatram Sardar Singh Raghuvanshi and Anr. Etc,(1975) 1
SCC
421…………………………………………………………………………………………..
61) Sumati Dayal v. CIT. (1995)214 ITR 801…………………………………………………
62) Syed Kaleem vs M/S Mysore Lakshmi Beedi Works 1992 (3) KarLJ 581………………..
63) The Janta Dal v. H.S.Chowdhary [1992 (4) SCC 305]……………………………………
64) Tulsi Prasad vs The State 1964 CriLJ 472…………………………………………………
65) Union of India v. Rajesh PU, Puthuvalnikathu, (2003) 7 SCC 285……………………….
66) Union of India v. State of U.P, 1999 114 STC 288 WP. No. 115 of 1995………………...
67) United States v. Carolene Products, 304 U.S. 144 (1938)…………………………………
68) Vishakha and others v State of Rajasthan AIR 1997 SC 301……………………………...

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BOOKS REFERED

1. Justice SS Subramani, D.D. Basu Commentary on the Constitution of India, 3138 (Lexis
Nexis Butterworth Wadhwa Publications, Nagpur, 2008).

2. H.M. Seervai, Constitutional Law of India: A Critical Commentary, (Universal

Law Publishing Pvt. Ltd., Delhi, 4th edition, 1967).

3. M.P Jain, Indian Constitutional Law, (Lexis Nexis Butterworth Wadhwa Publications,
Nagpur, 6th edition, 2015).

4. Lord Halsbury, Halsbury’s Laws of India, Volume 35 (Lexis Nexis Butterworth Wadhwa
Publications, 2nd edition, Nagpur, 2007).

5. Granville Austin, Cornerstone of a Nation (Indian Constitution), Volume 75 (Oxford

India, New Delhi, 1999).

6. L.M. Singhvi & Swarup, Jagdish; Constitution of India, (Modern Law Publications, New
Delhi, 3rd edition, 2013).

STATUTES

1. Indian Penal Code, 1860………………………………………………………………

passim

2. Indian Telegraph Act, 1885……………………………………………………………

passim

3. Constitution of India, 1950…………………………………………………………...passim

4. The Citizenship Act, 1955……………………………………………………………passim

5. Income Tax Act, 1961…………………………………………………………………

passim

6. Information Technology Act, 2000……………………………………………………

passim

7. Prevention of Money Laundering Act, 2002…………………………………………passim

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8. Right to Information Act, 2005……………………………………………………….passim

9. Aadhar (Targeted delivery of Financial and Other Subsidies, benefits and Services) Act,
2016…………………………………………………………………………………...…passim

10. Aadhaar and Other Laws (Amendment) 2019………………………………………passim

11. Aadhaar (Pricing of Aadhaar Authentication Services) Regulation,

2019…………...passim

STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble Republic Court Of Indiana under Writ of
Mandamus of Article 32 of the constitution of Indiana.

Article 32 guarantees the right to move the Supreme Court, for enforcement of Fundamental
Rights, It empowers the Supreme court to issue appropriate orders or directions, or writs in
the nature of habeas corpus, mandamus, quo warranto and certiorari, for the enforcement of
Fundamental rights.1 Right of Access to the Supreme Court under article 32 is a Fundamental
Right itself.2

The memorandum in the matter of Jagruk Law Students Association v. Republic of Indiana,
sets forth the facts, contentions and arguments in the present case.

1
M.P. Jain, Indian Constitutional Law, 1353, (Lexis Nexis, 7th edition, 2016).
2
Bodhisattwa v. Subhra Chakraborty, AIR 1996 SC 922,926, Common cause, a registered society v. Union of
India, AIR 1999 SC at 3020.

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SYNOPSIS OF FACTS

BACKGROUND

The Republic of Indiana located in South Asia is a multicultural nation, the country is a
sovereign, democratic, republic nation with a federal set up and the constitution enumerates
various fundamental rights which are available against the state (defined under article 12).
The government of Republic of Indiana introduced unique digital identity, the Pehchan
scheme as the government was emphasizing on transforming the country into “Digital
Indiana”. Notification was issued, Pehchan authority was constituted but there was no
regulation regarding collection of biometric information, storage and usages of the
information as well as security of such information collected by the Pehchan authority, there
was no statutory backing for the program/scheme. In 2016, Pehchan (Targeted Delivery of
Financial and other Subsidies, Benefits and Services) Act, 2016 (Pehchan Act, 2016) was
passed.

PEHCHAN DATABASE AND ITS USAGE

Pehchan scheme was challenged by filing several PILs, on the grounds that it is used as a tool
of surveillance, interfered with federalism and is causing denial of fundamental rights to
personal liberty, the lead petition being Michael Cross v. Republic of Indiana and first writ
petition being Trevor John v. Republic of Indiana. Under the Pehchan ( Targeted Delivery of
Financial and Other Subsidies, Benefits and Services) Act, 2016 notifications were issued by
different ministries for making Pehchan no. mandatory requirement for an individual to avail
different benefits, services and subsidies under various schemes which includes: TRARI
launched Pehchan based e-KYC for mobile connections and re-verifications of existing
customers, ITDRI made Pehchan no. mandatory for obtaining PAN, Pehchan no. was made
mandatory for e-KYC by Prevention of money laundering(maintenance of records) second
amendment rules,2017. In the case Michael Cross v. Union of Indiana, a constitutional bench

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passed its order in which it decided only two usages of Pehchan Database, and only by the
government and even voluntary use of Pehchan database by the private parties was held
unconstitutional.

PEHCHAN AND OTHER LAWS (AMENDMENT) ORDINANCE, 2019 AND PEHCHAN (PRICING
OF AUTHENTICATION SERVICES) REGULATION, 2019 AND ITS IMPACT

In January, Pehchan ordinance 2018 was passed in Lok Sabha, which dissolved the ordinance
and therefore it lapsed, however in march Pehchan and other law (Amendment) ordinance,
2019 was promulgated which was same as in 2018 Pehchan ordinance. High court of Arjuna
and Karuna held that there was no verification of authenticity of demographic data in
Pehchan database. A catena of articles was published in newspaper which highlighted the
misuse of information of the citizens like SBRI allege Pehchan data misuse and that the
enrolment details of their vendors had been stolen and misused b) Andhra Pradesh: TDP app
breached data of 3.7 crore voters(misuse of data collected during Pehchan enrolment) c)Fir
filed by John Mark under sec 66-B and 72 of IT Act, 2000 and sec 120b,379,420 and 188 of
IPC 1860 alleges misuse of data including for private and election purpose. UIDARI also
notified the Regulations in which UIDARI will charge private entities per e-KYC transaction
and yes/no authentication transaction. The ordinance was seen as having deleterious impact
on the fundamental rights guaranteed under part III of the constitution and for the security of
personal data, which is imperilled by allowing private entities/players access to it. Under the
Regulation, private entities sub-worked their responsibilities to other private entities/parties
to make more profit which result into leakage of personal and sensitive information of the
citizen’s.

WRIT PETITION FILED AS A PIL.

Jagruk Law Students Association filed Writ petition as PIL under Article 32 of the
constitution of Republic of Indiana for adjudication of issues of leakage of information by
private entities and creates a backdoor to permit private entities to access the Pehchan eco-
system after the Pehchan and other laws (Amendment) Ordinance,2019 and Pehchan(Pricing
of Pehchan Authentication Services) Regulations,2019.

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ISSUES RAISED

ISSUE 1

WHETHER THE WRIT PETITION FILED BY THE PETITIONER UNDER ARTICLE 32

OF THE CONSTITUTION OF REPUBLIC OF INDIANA IS MAINTAINABLE?

ISSUE 2

WHETHER THE PEHCHAN AND OTHER LAWS (AMENDMENT) ORDINANCE, 2019

AND PEHCHAN (PRICING OF PEHCHAN AUTHENTICATION SERVICES)
REGULATIONS 2019 IS UNCONSTITUTIONAL AS IT VIOLATES THE
FUNDAMENTAL RIGHTS GUARANTEED UNDER PART III OF THE
CONSTITUTION OF REPUBLIC OF INDIANA?

ISSUE 3

WHETHER THE PUBLIC ENTITIES HAVE THE RIGHT TO KEEP ANY PERSONAL
AND SENSITIVE INFORMATION AND BIOMETRIC DATA OF CITIZENS OF THE
REPUBLIC OF INDIANA, WHAT HAPPEN IN CASE OF BREACH OR LEAKAGE OF
PERSONAL AND SENSITIVE INFORMATION OF CITIZENS OF REPUBLIC OF
INDIANA AND WHO WILL BE LIABLE FOR IT?

ISSUE 4

WHETHER PERMITTING THE PEHCHAN DATABASE TO LINK WITH THE

EXISTING DATABASES OF SERVICES OFFERED UNDER CHAPTER IV OF THE
PREVENTION OF MONEY LAUNDERING ACT,2002 AND SECTION 4 OF THE
INDIAN TELEGRAPH ACT,1885 POSES A GRAVE THREAT TO NATIONAL

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SECURITY AFTER THE PEHCHAN AND OTHER LAWS (AMENDMENT)

ORDINANCE, 2019?

ISSUE 5

WHETHER THE CURRENT DATA PROTECTION METHODS ADOPTED BY THE

GOVERNMENT PREVENTS CYBER THREATS UNDER IT ACT,2000?

SUMMARY OF ARGUMENTS

[1] THAT THE WRIT PETITION FILED BY THE PETITIONER UNDER ARTICLE
32 OF THE CONSTITUTION OF REPUBLIC OF INDIANA IS MAINTAINABLE.

It humbly submitted before the hon’ble Republic Court of Indiana that the writ petition filed
under article 32 is maintainable as the Petitioner has a locus standi for filing such a petition as
well as there is substantive question of law which has been put forward by the Petitioner and
there is violation of the fundamental rights of the Petitioner guaranteed under part III of the
constitution of republic of Indiana.

[2] THAT THE PEHCHAN AND OTHER LAWS (AMENDMENT) ORDINANCE,

2019 AND THE PEHCHAN (PRICING OF PEHCHAN AUTHENTICATION
SERVICES) REGULATIONS, 2019 IS UNCONSTITUTIONL AS IT VIOLATES THE
FUNDAMENTAL RIGHTS GUARANTEED UNDER PART III OF THE
CONSTITUTION OF REPUBLIC OF INDIANA.

It is humbly submitted before the Hon’ble Republic Court of Indiana that the Pehchan and
Other Laws (Amendment) 2019 and Pehchan (Pricing of Pehchan Authentication Services)
Regulation, 2019 is unconstitutional as it is an obstruction to the right of protection to life and
liberty of the citizens within the ambit of Article 21 of the constitution which functions on the
principle of reasonableness as well as equality and non-arbitrariness. Pehchan scheme is a
direct violation of the right to personal liberty, right to dignity, the right to privacy and the
right to reputation and hence stands in direct violation to the individual right to privacy.  

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[3] THAT THE PUBLIC ENTITIES DO NOT HAVE THE RIGHT TO KEEP ANY
PERSONAL/SENSITIVE INFORMATION AND BIO-METRIC DATA OF CITIZENS
OF THE REPUBLIC OF INDIANA AND THE PUBLIC ENTITIES WILL BE
LIABLE IN CASE OF BREACH OR LEAKAGE OF PERSONAL AND SENSITIVE
INFORMATION OF CITIZEN OF REPUBLIC OF INDIANA.

It is humbly submitted before the Hon’ble Republic Court of Indiana that the public entities
do not have the right to keep any personal and sensitive information and biometric data of
citizens of the Republic of Indiana and shall be held liable in case of breach or leakage of
personal and sensitive information of citizen of republic of  Indiana since, the right to data
protection having intrinsic links with the right to privacy,  shall be protected within the ambit
of Article 21 of the Constitution, as  it is an individual right to lead a private life. In case of
breach or leakage of data, the state shall be held liable, since, under Article 12 of the
Constitution, any organization performing a state function shall be considered an instrument
of the state.

[4] THAT PERMITTING THE PEHCHAN DATABASE TO LINK WITH THE

EXISTING DATABASES OF SERVICES OFFERED UNDER CHAPTER IV OF THE
PREVENTION OF MONEY LAUNDERING ACT,2002 AND SECTION 4 OF THE
INDIAN TELEGRAPH ACT, 1885, POSES A GRAVE THREAT TO NATIONAL
SECURITY AFTER THE PEHCHAN AND OTHER LAWS (AMENDMENT)
ORDINANCE, 2019.

It is humbly submitted before the Hon’ble republic Court of Indiana that linking Pehchan
database with the current services offered under money laundering and telegraph act is a
grave threat to national security because it does not satisfy the test of proportionality, is
unreasonable, keeps an assumption of criminality and the authentication process is severely
flawed.

[5] THAT THE CURRENT DATA PROTECTION METHODS ADOPTED BY THE

GOVERNMENT DOES NOT PREVENT CYBER THREATS UNDER IT ACT, 2000.

It is humbly submitted before The Hon’ble Republic Court of Indiana that the current data
protection methods adopted by the government does not prevent cyber threats as the sections
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dealing with punishment for leakage of information under the IT act,2000 is limited in nature
and covers only “corporate body”, leakage by the government is not covered under the
sections. (43A of the IT Act,2000).

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¶ 32. It is therefore submitted that Without indicating any "extraordinary situation of an

emergent nature", the Executive issued the impugned Ordinance, which is an abuse of
power. The impugned Ordinance has been issued absent a legal framework for data
security in the country, to amend the Aadhaar Act, Indian telegraph Act, 1885, and the
Prevention of Money Laundering Act, 2002 merely to enable private entities to use the
Aadhaar data base.

[3] THAT THE PUBLIC ENTITIES DO NOT HAVE THE RIGHT TO KEEP ANY
PERSONAL/SENSITIVE INFORMATION AND BIO-METRIC DATA OF CITIZENS
OF THE REPUBLIC OF INDIANA AND THE PUBLIC ENTITIES WILL BE
LIABLE IN CASE OF BREACH OR LEAKAGE OF PERSONAL AND SENSITIVE
INFORMATION OF CITIZEN OF REPUBLIC OF INDIANA.

¶ 33. The counsel for the Petitioner pleads before the Hon’ble Republic Court of Indiana that the
public entities do not have the right to keep any personal and sensitive information and bio-
metric data of citizens of the Republic of Indiana and shall be held liable in case of breach or
leakage of personal and sensitive information of citizen of Republic of Indiana.

[3.1.] THE PUBLIC ENTITIES DO NOT HAVE THE RIGHT TO KEEP ANY PERSONAL AND
SENSITIVE INFORMATION AND BIO-METRIC DATA OF CITIZENS OF THE REPUBLIC OF
INDIANA.

¶ 34. It is humbly submitted before the Hon’ble Court of Indiana that there is no codified law with
regard to the right to privacy in the nation and is to be read within the contours of certain
reasonable restrictions for the vested collective interest of the state.

¶ 35. The Court has read the right to privacy into the other existing fundamental rights, i.e.
Art 19(1)(a) the Constitution 52 that guarantees the freedom of speech and expression and Art
21 of the Constitution53 which takes all those aspects of life which go to make a person's life
meaningful and even the State can’t violate it54, with restrictions under with the options
canvassed for limiting the right to privacy include an Art. 14 type reasonableness enquiry55 ;
limitation as per the express provisions of Art. 19; a just, fair and reasonable basis (that is,
substantive due process) for limitation per Art. 21; and finally, a just, fair and reasonable
52
The Constitution of Indiana.
53
The Constitution of Indiana. See: Maneka Gandhi v. Union of India, 1978 (2) SCR 621.
54
Justice K. S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081.
55
E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.

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standard per Art. 21 plus the amorphous standard of ‘compelling state interest’. The last of
these four options is the highest standard of scrutiny 56, which a Court can adopt. It is from
this menu that a standard of review for limiting the right of privacy needs to be chosen.57

¶ 36. In the present scenario, the government in power is using Pehchan as a tool of surveillance.
There has been no verification of authenticity of demographic data in the Pehchan database
and the same remains unverified by any government agency, as noted by the HC of Arjuna
and Karuna58. However, the given personal information and biometric data is being misused
and manipulated for election related and personal gains. This issue has been brought to open
by a number of state instruments, such as the SBRI, that pointed the misuse of the personal
information of their enrolment officers, including the data of an enrolment officer in
Chandigarh being stolen; Andhra Pradesh, wherein it was alleged that there was misuse of the
demographic data collected during Pehchan enrolment of more than 3.7 crore voters; and the
instance of an IT firm working on app for ‘TDP’ stealing data. Henceforth, it is evident that
Pehchan is being manipulated and used as a tool of surveillance, with a clear violation of the
citizens’ right to privacy within the narrower ambit of the right to data protection59.

¶ 37. The right to data protection has intrinsic links with the right to privacy, with the initial
question of telephone tapping as a method of surveillance arising in the case of PUCL v.
Union of India60, wherein there was the issue of mass surveillance programs being undertaken
by the Indian government. The Court in the aforementioned case ruled that:

“In the instant case the Court has ruled that right to privacy “is a part of the
right to ‘life’ and ‘personal liberty’ enrishned under Article 21 of the
Constitution ”, once the facts in a given case constitute a right to privacy, Article
21 is attracted, the said right cannot be curtailed “except according to procedure
established by law”
¶ 38. It was further stated that “telephone conversation is an important facet of a man’s private life”
and that conversations on the telephone are of an intimate and a confidential character. Since
it comes within the ambit of right to privacy, the state has no right to interfere except
according to procedure established by law that must be “just, fair and reasonable” Such a
procedure shall ensure to exclude arbitrariness and to safeguard the right to privacy of an
individual. 61
56
United States v. Carolene Products, (1938) 304 U.S. 144.
57
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081.
58
Moot Proposition, 9th FYLC Ranka National Moot Court Competition 2019.
59
Moot Proposition, 9th FYLC Ranka National Moot Court Competition 2019.
60
PUCL v. Union of India, (1997)1 SCC 301.
61
PUCL v. Union of India, (1997) 1 SCC 301.

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¶ 39. In the present scenario, however, there is no established procedure for the infringement of
personal information. The government has been consistently stealing the personal
information and biometrics of the citizens without their consent and has been giving leeway
to private entities/body corporates for the same, as contended in the PIL filed by S.G.
Vombatkere and Ors62. This creates an unprecedented situation of a surveillance state arising,
which goes against the ethos of the judgement delivered in PUCL v. Union of India.63

[3.1.1] THAT THERE IS A NEED FOR DATA PROTECTION LAWS

¶ 40. It is humbly submitted before the Hon’ble Court of Indiana that since the PUCL64 judgement,
there have been various recommendations and forward-looking judgements in this regard,
such as the Group of Experts on Privacy under the Chairmanship of Justice A.P. Shah 65
constituted by the Planning Commission in the year of 2012, the Right to Privacy 66judgement
in the year of 2017, the Aadhaar Judgement 67in the year of 2018 and Justice Srikrishna
Committee 68set up to recommend an era of new data protection laws in India.

¶ 41. The Planning Commission of India in the year of 2012 constituted Group of Experts on
Privacy under the Chairmanship of Justice A.P. Shah69, which stated that technological
neutrality and interoperability with international standards must be maintained, being
generic enough so that the principles and enforcement mechanisms remain adaptable to
changes in society, the marketplace, technology and the Government; recognized that the
right of privacy has multiple dimensions, and that data protection must have a
framework, which provided appropriate protection from unauthorised interception,
audio and video surveillance, use of personal identifiers, bodily privacy including DNA
as well as physical privacy ; agreed that any proposed privacy legislation must apply to
the government as well as to the private sector; recommended nine fundamental privacy
principles to from the bedrock of the proposed privacy act in India, providing baseline level
of privacy protection to all individual data subjects; and recommended the establishment of a
co-regulatory enforcement regime, with emphasis on a system of co-regulation, with equal
62
S.G. Vombatkere v. Union of India, W.P.(C) No. 000679 - / 2019.
63
PUCL v. Union of India, (1997) 1 SCC 301.
64
PUCL v. Union of India, (1997) 1 SCC 301.
65
Planning Commission, Government Of India, Group Of Experts on Privacy under the Chairmanship Of
Justice A.P. Shah http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf, last seen on 01/09/2019.
66
KS Puttaswamy v. Union of India, (2017) 10 SCC 1.
67
KS Puttaswamy v. Union of India, (2019) 1 SCC 1.
68
Committee of Experts under the Chairmanship Of Justice B.N. Srikrishna, available at,
https://meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf, last seen on 01/09/2019.
69
Committee of Experts under the Chairmanship Of Justice B.N. Srikrishna, available at,
https://meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf, last seen on 01/09/2019.

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emphasis on Self-Regulating Organisations being vested with the responsibility of

autonomously ensuring compliance with the Act, subject to regular oversight by the Privacy
Commissioner.

¶ 42. KS Puttaswamy v. Union of India70, which dealt with the issue of right to privacy largely in
regard to the Aadhaar scheme stated that:

“Data protection relates closely with the latter sphere. Apart from safeguarding
privacy, data protection regimes seek to protect the autonomy of the individual.
This is evident from the emphasis in the European data protection regime on the
centrality of consent. Related to the issue of consent is the requirement of
transparency which requires a disclosure by the data recipient of information
pertaining to data transfer and use.”
¶ 43. Henceforth, KS Puttaswamy71 brought forward the need for transparent data privacy laws in
consonance with the growing technological advancements in the world. Data protection, was
henceforth, mentioned to be within the ambit of Right to Privacy in India, since technology is
an essential facet of our daily lives.

¶ 44. The Puttaswamy judgement brought forth the need for a data protection policy, and brought
the recommendations of the 2012 Planning commission report to the forefront. A committee
of Experts under the Chairmanship of Justice B.N. Srikrishna 72 was appointed for the
same. The recommendations made by the committee, which stated that “Sensitive” personal
data (such as passwords, financial data, sexual orientation, biometric data, religion or caste)
should not be processed unless someone gives explicit consent – which factors in the purpose
of processing and that a Data Protection Authority should be set up, which shall “protect the
interests of data principals”, prevent misuse of personal data and ensure compliance with the
safeguards and putting obligations under the data protection framework by corporations,
governments or anyone else processing personal data (known as “data fiduciaries”). The
obligations on data fiduciaries shall include conducting audits and ensuring they have a data
protection officer and grievance redressal mechanism, which will function according to a
code of conduct. Such an authority shall have the power to inquire into any violations of the
data protection regime, and can take action against any data fiduciaries responsible for the
same.

70
KS Puttaswamy v. Union of India, (2017) 10 SCC 1.
71
KS Puttaswamy v. Union of India, (2017) 10 SCC 1.
72
Committee of Experts under the Chairmanship Of Justice B.N. Srikrishna, available at,
https://meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf, last seen on 01/09/2019.

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¶ 45. However, the aforementioned recommendations haven’t been converted to a codified law and
data surveillance and theft by the state continues to be a reality.

[3.1.2.] THAT PEHCHAN SCHEME IS BEING USED AS A TOOL OF MASS SURVEILLANCE

¶ 46. It is humbly submitted before the Hon’ble Court of Indiana that in the case of KS Puttaswamy
v. Union of India(5-J),73discussed the validity of the Aadhaar scheme, restricting several
schemes in order to not deprive the citizens of their right to Personal liberty and privacy, the
Court stated that:

“The architecture and design of the Aadhaar project did not enable mass
surveillance of person enrolled under the Aadhaar Act ‘only’ after striking down
certain offending provisions, including Section 57 of the Aadhaar Act 2019,
which permitted private parties to use Aadhaar for authentication and limiting its
use to only two functions by the government.”
¶ 47. This case is similar to the petition filed in Michael Cross v. Republic of Indiana74, wherein the
Republic Court of Indiana ruled that the use of Pehchan database shall only be limited to 2
schemes and that private entities/body corporates shall not be given access to the said
information. The Court in KS Puttaswamy v. Union of India 75also noted that linking such
vital information to CDRI is risky, for it might cause large scale data theft, putting millions of
citizens at risk. Bringing such offending provisions back, through Ordinances 76 and
Regulations77, leads to the creation of a surveillance state at the behest of the whims and
fancies of State action, and henceforth, must be stopped.

¶ 48. The PIL filed by SG Vombatkare & Ors78 rightfully contended that the data privacy laws must
change with the advancement in technology. The deployment of the largest surveillance
program in history necessitates a fundamental reimagining of the surveillance law if the
Constitutional right to privacy is to be saved from inconsequence. Systemic Parliamentary
sanction of (and oversight over) the government’s surveillance projects is imperative. Finally,
perhaps the idea of surveillance being based on judicial warrants is an idea whose time has
finally come.79 Until there is a transparent law for the data protection mechanism in the

73
KS Puttaswamy v. Union of India, 1 SCC 1 2019.
74
Moot Proposition, 9th FYLC Ranka National Moot Court Competition 2019.
75
KS Puttaswamy v. Union of India, 1 SCC 1 2019.
76
The Aadhaar and Other Laws (Amendment) Ordinance, 2019.
77
Aadhaar (Pricing of Aadhaar Authentication Services) Regulations, 2019.
78
S.G. Vombatkere v. Union of India, W.P.(C) No. 000679 - / 2019.
79
Chaitanya Ramachandran, PUCL v. Union of India Revisited: Why India’s Surveillance Law Must Be
Redesigned for the Digital Age, 16, http://nujslawreview.org/wp-content/uploads/2016/12/Chaitanya-
Ramachandran.pdf, last seen on 01/09/2019.

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nation, the Pehchan scheme continues to be an abomination that targets the Personal Liberty
and individual privacy of millions of citizens enrolled under it, and must be stopped.

¶ 49. Henceforth, the State does not have the right to retain personal & sensitive information of the
citizens of the Republic of Indiana under Section 12 of the impugned ordinance80, which
amends Section 33(2) of the Aadhaar Act, which allows identity and authentication data to be
disclosed in the interest of national security on direction of an officer not below the rank of
Joint Secretary (JS) to the government as it was struck down during KS Puttaswamy v. Union
of India81 as it aids in the creation of a surveillance state and goes against the right to
Personal Liberty under Article 21, as ruled in KS Puttaswamy v. Union of India.82

¶ 50. The state does not have the right to retain such sensitive information, since it is determinant to
the individual right to privacy of each individual.

[3.2.] THAT THE STATE SHALL BE HELD LIABLE IN CASE OF BREACH OR LEAKAGE OF
PERSONAL AND SENSITIVE INFORMATION OF CITIZEN OF REPUBLIC OF INDIANA.

¶ 51. It is humbly submitted before the Hon’ble Court of Indiana that in the case of breach or
leakage of personal and sensitive information and bio-metric data of citizens of the Republic
of Indiana by any entity working under the government for the collection of the data under
the Pehchan scheme.

[3.2.1.] ANY PUBLIC/PRIVATE ENTITY PERFORMING A STATE FUNCTION SHALL BE

CONSIDERED AS STATE.

¶ 52. It is humbly submitted before the Hon’ble Court of Indiana that in accordance with the
provisions of the Constitution83,“the State” includes The Government and Parliament of
India, The Government and Legislature of each of States, Local Authorities or Other
Authorities within the territory of India or under the control of Government of India. 84 Under
this Article, any organization performing a state function shall be considered an instrument of
the state.

¶ 53. In the present scenario, various private and public entities are performing the function of
employing enrolment officers and collecting sensitive personal information, including

80
The Aadhaar and Other Laws (Amendment) Ordinance, 2019.
81
KS Puttaswamy v. Union of India, 1 SCC 1 2019.
82
KS Puttaswamy v. Union of India, 1 SCC 1 2019.
83
Art.12, The Constitution of Indiana.
84
The Constitution of Indiana.

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biometrics of the citizens of the Republic of Indiana. Hence, they shall be accorded the status
of being functionaries of the state and henceforth, the state shall be liable in case there is
leakage of personal and sensitive information of the citizens during the process of
enrolment.85

¶ 54. In the case of Sukhdev and Ors. etc. v. Bhagatram Sardar Singh Raghuvanshi and Anr.
Etc.86, it was held that even where a corporation is privately performing a public function it is
bound by the Constitution al standard applicable to all State actions. In the present scenario,
private entities/body corporates have been carrying out offline verification and authentication
at the behest of the State, and henceforth are performing a state function. In case of any
unauthorised use or leakage of the said data, the State shall be held liable.

¶ 55. Similarly, in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and
Ors. Council of Scientific and Industrial Research87 an organization, even when registered as
Society was held to be ‘State’ within the meaning of Article 12.88

¶ 56. Henceforth, in the case of breach or leakage of personal and sensitive information and bio-
metric data of citizens of the Republic of Indiana by any entity working under the
government for the collection of the data under the Pehchan scheme, the State shall be solely
held responsible, since all organizations and entities working performing a state function are
considered to be an instrumentality of the state under Article 12.89

[4] THAT PERMITTING THE PEHCHAN DATABASE TO LINK WITH THE

EXISTING DATABASES OF SERVICES OFFERED UNDER CHAPTER IV OF THE
PREVENTION OF MONEY LAUNDERING ACT,2002 AND SECTION 4 OF THE
INDIAN TELEGRAPH ACT, 1885, POSES A GRAVE THREAT TO NATIONAL
SECURITY AFTER THE PEHCHAN AND OTHER LAWS (AMENDMENT)
ORDINANCE, 2019.

¶ 57. he council on behalf of the Petitioner humbly submits before the honourable Court that the
Section 24 and 25 of the impugned Ordinance which seeks to amend the Indian Telegraph
85
Moot Proposition, 9th FYLC Ranka National Moot Court Competition 2019.
86
Sukhdev and Ors. etc. v. Bhagatram Sardar Singh Raghuvanshi and Anr. Etc., (1975) 1 SCC 421. See also:
Marsh v. Alabama (3) 326 U.S. 501; Ramana Dayaram Shetty v. International Airport Authority of India and
Ors, (1979) 3 SCC 489; Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors. (1981) 1 SCC 7 22.
87
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. Council of Scientific and Industrial
Research, Appeal (C) 992 Of 2002.
88
The Constitution of Indiana.
89
Art.12, The Constitution of Indiana.

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Act, 1885 and prevention of Money Laundering Act, 2002 respectively, suffer from over
inclusiveness and poses a grave threat to national security.

[4.1.] THAT AUTHENTICATION PROCESS UNDER THE SECTION 24 AND 25 PEHCHAN AND
OTHER LAWS (AMENDMENT) ORDINANCE, 2019 IS SEVERELY FLAWED.

¶ 58. It is humbly submitted before the honourable Court that section 2(c) of the Aadhaar Act,
201690 which is pari-materia with the Pehchan Act, 201691 defines authentication as the
process by which the Aadhaar number along with demographic information or biometric
information of an individual is submitted to the Central Identities Data Repository(CIDR) for
its verification and such repository verifies the correctness, or the lack thereof, on the basis of
information available with it.

¶ 59. Firstly, the data “submitted” to CIDR is not verified as it is furnished by the Aadhaar
applicant himself which may or may not be true. In the case titled Debashis Mandy v. Union
of India92, a Single Judge of the Calcutta High Court noted that there was no verification of
the authenticity of the demographic data in the Aadhaar data base. Similarly, in the case Snt.
Paruati Kumar v. State of U.P93., a Division Bench of the Lucknow Bench the Allahabad
High Court held; that the information entered in the Aadhaar card cannot be treated as
conclusive proof of the same as it is unverified by any party, Even the High Court of Arjuna
and High Court of Karuna held that there was no verification of authenticity of demographic
data in the Pehchan database94.

¶ 60. Considering various judgements of the Courts we can say that the authentication process is
the hub of errors, therefore linking such a database which is not even verified and using it for
communication purpose is a severe threat to national security. Even the High Court of Arjuna
and High Court of Karuna held that there was no verification of authenticity of demographic
data in the Pehchan database.95

¶ 61. Secondly, In the Aadhaar architecture, UIDAI only knows that a particular Aadhaar number
was used by the holder at an institution’s device. But UIDAI never knows if the person has
withdrawn or deposited money or just placed his/her attendance. Basically, UIDAI does not

90
Aadhar (Targeted delivery Of Financial and Other Subsidies, Benefits and Services) Act, 2016.
91
Moot Proposition, 9th FYLC Ranka National Moot Court Competition, 2019.
92
Debashish Mandy v, Union of India, W.P. 15233 (W) Of 2018.
93
Snt. Paruati Kumar v. State of U.P, Case no. 3837 Of 2008.
94
P.3, Moot Proposition, 9th FYLC Ranka National Moot Court Competition, 2019.
95
P.3, Moot Proposition, 9th FYLC Ranka National Moot Court Competition, 2019.

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know the purpose for which Aadhaar authentication has been used by the Aadhaar-holder 96.
In the case K.S Puttaswamy and Another v. Union of India97 it was observed that “while the
web is a source of lawful activity — both personal and commercial, concerns of national
security intervene since the seamless structure of the web can be exploited by terrorist to
wreak havoc and destruction on civilised societies”. Hence once an Aadhaar is issued there
is no security as of what purpose the authentication is used which gives these terrorist
organisations an easy way to disrupt into the national security of our country.

96
Rajesh Bansal, Aadhaar authentication failure in Supreme Court is a fake Issue, The Print,
https://uidai.gov.in/images/news/Aadhaar-authentication-failure-in-Supreme-Court-is-a-fake-issue-The-
Print.pdf, last seen on 03/04/2018.
97
KS Puttaswamy v. Union of India, 1 SCC 1 2019.

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PRAYER

MEMORIAL ON BEHALF OF THE PETITIONER XV