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

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

INDEX

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

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

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

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

ISSUES RAISED......................................................................................................................XII

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.

[1.1.] That the matter raised is of general public importance and thereof involves a
substantive question of law……………………………………………………………….

[1.2] That the Writ of Mandamus is maintainable in the present

petition…………………..

[1.3.] That 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.] Section 5 of the Ordinance 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…………………………...

MEMORIAL ON BEHALF OF THE PETITIONER II

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

[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…….

[2.6.] Doctrine of Severability will apply ………………………………………..

[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.] Violation of the Section 72-A of the Information Technology Act. 2000………

PRAYER..................................................................................................................................XV

MEMORIAL ON BEHALF OF THE PETITIONER III

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

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 Hasia and Ors. v. Khalid Mujib Sehravardi and Ors. (1981) 1 SCC 7 22…………...
2) A.K.Gopalan v. State of Madras, AIR 1950 SC 27……………………………………….

MEMORIAL ON BEHALF OF THE PETITIONER IV

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

3) Armymen's Protection Services (P) Ltd. v. Union of India, (2014) 5 SCC 409…………...
4) Bharat Sanchar Nigam Limited And Another v. Union of India And Others,
CIC/DGEAT/A/2018/117567……………………………………………………………..
5) Bodhisattwa v. Subhra Chakraborty, AIR 1996 SC 922,926……………………………..
6) Coal India Limited v. Mukul Kumar Choudhuri, AIR 2010 SC 75……………………….
7) Common cause, a registered society v. Union of India, AIR 1999 SC at
3020………………
8) Daryao v. State of UP, AIR 1961 SC 1457……………………………………………….
9) Debashish Mandy v. Union of India, W.P. 15233 (W) of
2018……………………………...
10) Delhi Science Forum and others v. union of India and Another, (1996) 2 SCC 405……..
11) Dev Singh v. Punjab Tourism Development Corporation, 2003 SC 3712………………...
12) District Central Coop. Bank v. Employees Assn, (2007) 4 SCC 669……………………..
13) District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496…………………….
14) Dr. Sonal Asthana vs State of Karnataka, C.P No.1729 OF 2016………………………...
15) D.S. Nakara v. Union of India, AIR 1983 S.C. 130………………………………………
16) Francis Coralie Mullin v. Union of India, 1981 AIR 746…………………………………
17) Francis Coralie Mullin v. Union of India, 1981 SCR (2) 516…………………………….
18) Golaknath and Ors. vs State of Punjab and Anrs. 1967 SCR (2) 762……………………..
19) Guruswami v. Mysore, AIR 1954 SC 592………………………………………………..
20) Hindi Hitrakshak Samiti v. Union of India, (1990) 2 SCC 352…………………………..
21) K.R.Srinivas v. R.M.Premchand (1994 (6) SCC 620)…………………………………...
22) Kazi Lhendup Dorji vs. Central Bureau 1994 Supp (2) SCC 116……………………….
23) Keshavananda Bharati v. State of Kerala (1973) 4 SCC 225……………………………..
24) Kharak Singh v. State of UP, 1963 AIR 1295…………………………………………….
25) Kirandeep Kaur v. Regional Passport Office, AIR 2006 Del 2 ………………………….
26) KS Puttaswamy v. Union of India, (2017) 10 SCC
1………………………………………
27) KS Puttaswamy v. Union of India, W.P (Civil) No. 494 of 2012…………………………
28) Lal Babu Hussein v. Electoral Registration Officer, (1995) 3 SCC 100…………………..
29) Marsh v. Alabama (3) 326 U.S. 501: 19 L. 22 ed. 265……………………………………
30) Minerva Mills v. Union of India AIR 1980 SC 1789……………………………………...
31) Modern Dental College & Research Centre v. State of M.P, (2016) 7 SCC 353………….
32) Mr. X v. Hospital Z, AIR (1995) SC 95…………………………………………………...

MEMORIAL ON BEHALF OF THE PETITIONER V

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

33) Navtej Singh Johar & Ors v. Union of India W.P. (Cril) No. 76 of 2016…………………
34) Olga Tellis and Ors Vs. Bombay Municipal Corporation and Ors 1985 SCR Supl. (2)
51……………………………………………………………………………………………
35) Om Kumar v. Union of India AIR 2000 SC 3689………………………………….…....
36) P. State Road Transport Corporation v. Subhash Chandra Sharma (2000) 3 SCC
324………………………………………………………………………………………….
37) Parvati Kumar V. State of U.P, Case No. 3837 of
2008……………………………………
38) People’s Union for Civil Liberties vs Union of India, AIR 1997 SC 568…………………
39) PIO, Housing and Urban Development Corporation Ltd. & Anr. v. Vishwas Bamburkar,
(2018) 186 AIC
687…………………………………………………………………………
40) Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. Council of
Scientific and Industrial Research, Civil Appeal No. 992 of 2002…………………………
41) R. Rajagopal v. State of T.N, (1994) 6 SCC 632…………………………………………
42) Ram Jethmalani v. Union of India, (2011) 8 SCC 1………………………………………
43) Ramana Dayaram Shetty v. International Airport Authority of India and Ors, (1979) 3
SCC
489………………………………………………………………………………………….
44) Ramjas Foundation v. Union of India (AIR 1993 SC 852).……………………………
45) Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1 119-120....
46) Sandeep Singh Jadoun v. Central Public Information Officer, DGEAT
47) Sanjay Singh v. UP Public Service Commission, AIR 2007 SC 950…………………….
48) Sharda v. Dharmpal, AIR (2003) SC 3450……………………………………………….
49) Sir Chunilal Mehta and Sons, Ltd. V. Century Spinning and Manufacturing Co. Ltd.
AIR 1962 SC
1314……………………………………………………………………………….
50) State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 …………………………….
51) State of Bombay v. F.N. Balsara, AIR 1951 SC 318……………………………………...
52) State of Bihar v. Mangal Sao, AIR 1963 SC445………………………………………….
53) State of Madras v. Champakam Dorairajan AIR 1951 SC 226……………………………
54) Sukhdev and Ors. etc. v. Bhagatram Sardar Singh Raghuvanshi and Anr. Etc, (1975) 1
SCC
421…………………………………………………………………………………………..

MEMORIAL ON BEHALF OF THE PETITIONER VI

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

55) Sumati Dayal v. CIT. (1995)214 ITR 801…………………………………………………

56) The Janta Dal v. H.S.Chowdhary [1992 (4) SCC 305]……………………………………
57) Union of India v. Rajesh PU, Puthuvalnikathu, (2003) 7 SCC 285……………………….
58) Union of India v. State of U.P, 1999 114 STC 288 WP. No. 115 of 1995………………...
59) United States v. Carolene Products, 304 U.S. 144 (1938)…………………………………
60) Vishakha and others v State of Rajasthan AIR 1997 SC 301……………………………...

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

MEMORIAL ON BEHALF OF THE PETITIONER VII

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

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

passim

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

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

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. Westlaw, http://www.westlawindia.co.

7. Hein Online, http://home.heinonline.org/.

DICTIONARIES REFFERRED

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

ARTICLES/JOURNALS

1. Shivanath Tripathi, Right to Privacy as a Fundamental Right: Extent and Limitations,

Social Science Research Network (2017).
2. Nalin Mehta, Right to Privacy now includes all your choices: where you live, whom you
marry, your sexual orientation, Times of India (25/08/2017),
https://timesofindia.indiatimes.com/blogs/academic-interest/right-to-privacy-now-

MEMORIAL ON BEHALF OF THE PETITIONER VIII

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

includes-all-your-choices-where-you-live-whom-you-marry-your-sexual-orientation/, last
seen on 07/09/2019.
3. Aadhaar Paperless Local e-KYC allows offline verification of identity, limits data
sharing, Economic Times (03/10/2018),
https://uidai.gov.in/images/news/Aadhaar_Paperless_Local_e_KYC_allows_offline_verif
ication_limits_data_sharing_04102018.pdf, last seen on 10/09/2019.

COMMITTES REPORTS
1. 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.
2. Planning Commission, Government of India, Group of Experts on Privacy under the
Chairmanship of Justice A.P. Shah, available at
http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf, last seen on
01/09/2019.

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 the 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, prohibiton 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.

MEMORIAL ON BEHALF OF THE PETITIONER IX

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

SYNOPSIS OF FACTS

Background

The Republic of Indiana, located in South Asia is a multicultural nation, the nation being a
sovereign, democratic republic with a federal set up and its constitution enumerating various
fundamental rights available against the State. The Pehchan scheme was introduced as the
government was emphasizing on transforming the country into “Digital Indiana”. A
Notification was issued by the Planning Commission in 2009, a Pehchan authority was
constituted, however, there was no regulation regarding the collection of biometric
information, storage and usages of the information, as well as security of such information,
collected, and there was no statutory backing for the program/scheme. In 2016,
the Pehchan (Targeted Delivery of Financial and Other Subsidies, Benefits and Services)
Act, 2016 (hereinafter mentioned as the Pehchan Act, 2016) was passed.

Pehchan Database and its Usage

The Pehchan scheme was challenged by filing of several PILs, on the grounds that it is being
used as a tool of surveillance, interfering with federalism and causing denial of the
Fundamental right to personal liberty, the lead petition being Michael Cross v. Republic of
Indiana and the first writ petition being Trevor John v. Republic of Indiana. Under
the Pehchan Act, 2016 notifications were issued by different ministries for
making Pehchan no. a mandatory requirement for an individual to avail different benefits,
services and subsidies under various schemes which included TRARI-
launched Pehchan based e-KYC for mobile connections and re-verifications of existing
customers, ITDRI making Pehchan no. mandatory for obtaining PAN, Pehchan no. being
made mandatory for e-KYC by Prevention of Money Laundering(Maintenance of Records)
Second Amendment Rules, 2017. In the case of Michael Cross v. Union of Indiana, a
Constitutional bench passed its order in which it decided only two usages

MEMORIAL ON BEHALF OF THE PETITIONER X

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

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 2019, Pehchan and Other Laws (Amendment) Bill, 2018 was passed in Lok
Sabha, which lapsed since the Rajya Sabha dissolved.  The Pehchan and Other Laws
(Amendment) Ordinance, 2019 (hereinafter mentioned as Pehchan Ordinance 2019) was
promulgated in March 2019 which was same as 2018 lapsed Bill. A catena of articles was
published in newspapers which highlighted the misuse of information of the citizens, like the
SBRI, which alleged Pehchan data misuse and stealing and misuse of the enrolment details of
their vendors; Andhra Pradesh, wherein an IT firm working on the TDP app breached data of
3.7 crore voters and subsequently, an FIR was filed by John Mark under Sec. 66-B and 72 of
IT Act, 2000 and Sec. 120B, 379, 420 and 188 of Indian Penal Code, 1860 alleging misuse of
data for private and election purpose. UIDARI also notified the  Pehchan (Pricing
of Pehchan  Authentication Services) Regulations, 2019 (hereinafter mentioned
as Pehchan  Regulations 2019) in which UIDARI would charge Private entities per e-KYC
transaction and yes/no authentication transaction. After the given Ordinance and Regulation
were passed, Private entities also sub-worked their responsibilities to other private
entities/parties to make more profit which resulted in leakage of personal and sensitive
information of the citizens.

Writ petition filed as a PIL.

The Jagruk Law Students Association filed a Writ petition as a PIL under Article 32 of the
Constitution of Republic of Indiana for adjudication of issues of leakage of information by
private entities which created 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.

MEMORIAL ON BEHALF OF THE PETITIONER XI

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

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
SECURITY AFTER THE PEHCAN AND OTHER LAWS (AMENDMENT)
ORDINANCE, 2019?

MEMORIAL ON BEHALF OF THE PETITIONER XII

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 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,
since a substantive question of law is present which has been put forward by the Petitioner
and there has been a 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
Ordinance, 2019 and Pehchan 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 14, 19 and
21 of the Constitution which functions on the principle of reasonableness as well as equality
and non-arbitrariness. The 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 henceforth, stands
in direct violation of the Fundamental Rights of an individual.

[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

MEMORIAL ON BEHALF OF THE PETITIONER XIII

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

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 the Money Laundering Act, 2002 and the
Telegraph Act, 1885 is a grave threat to national security as it is unreasonable, keeps an
assumption of criminality with the authentication process being 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 do not prevent cyber threats as the Sections
dealing with punishment for leakage of information under the IT Act, 2000 are limited in
nature and cover only corporate bodies. The leakage of personal information by the
government is not covered under the Sections relating to data protection under the IT Act.

MEMORIAL ON BEHALF OF THE PETITIONER XIV

9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

MEMORIAL ON BEHALF OF THE PETITIONER XV

9TH FYLC- RANKA NATIONAL MOOT COURT COMPETITION, 2019

MEMORIAL ON BEHALF OF THE PETITIONER 1

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

[2.6.] DOCTRINE OF SEVERABILITY WILL APPLY IN THE INSTANT CASE.

¶ 33. The Supreme Court considered the Doctrine of Severability in the landmark case of
A.K. Gopalan v. State of Madras55, wherein it was held that the preventive detention
56
minus Article 14 of the Constitution was valid as the omission of the ‘prevention
detention’ clause from Article 14 of the Act will not change its nature and object and
henceforth, the rest of the Act shall remain valid and effective. This doctrine was also
applied in the case of D.S. Nakara v. Union of India57, wherein the Act remained valid
while the offending provisions of it were declared invalid since it was ‘severable’ from
the rest of the Act. In the case of State of Bombay v. F.N. Balsara58, it was held that
the provisions of the Bombay Prohibition Act, 1949 which were declared as void did
not affect the validity of the entire Act and therefore there was no necessity for
declaring the entire statute as invalid. Whence forth, in the light of the cases cited, it is
contended that is amenable to certain strike down certain provisions of the Pehchan
Act, 2016 without declaring the entire Act as unconstitutional as apart from the
offending provisions, i.e., Section 5, 7, 12, 24 and 25 of the Pehchan Ordinance, 2019
and Regulation 2(1) of the Pehchan Regulations, 2019 the rest of the Act serves a noble
purpose and isn’t violative of the Fundamental Rights of the citizens. Hence, the
Doctrine of Severability should be applied, with the aforementioned Sections of the
Pehchan Ordinance, 2019 and Pehchan Regulation, 2019 being struck down.

[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.

¶ 34. 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 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.

55
A.K.Gopalan v. State of Madras, AIR 1950 SC 27.
56
Article 14, The Constitution of Indiana.
57
D.S. Nakara v. Union of India, AIR 1983 S.C. 130.
58
State of Bombay v. F.N. Balsara, AIR 1951 SC 318

MEMORIAL ON BEHALF OF THE PETITIONER 2

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

[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.

¶ 35. 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.

¶ 36. The Court has read the right to privacy into the other existing fundamental rights, i.e.
Art 19(1)(a) the Constitution 59 that guarantees the freedom of speech and expression and Art
21 of the Constitution60 which takes all those aspects of life which go to make a person's life
meaningful and even the State can’t violate it61, with restrictions under with the options
canvassed for limiting the right to privacy include an Art. 14 type reasonableness enquiry62 ;
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
standard per Art. 21 plus the amorphous standard of ‘compelling state interest’. The last of
these four options is the highest standard of scrutiny 63, 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.64

¶ 37. 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 Karuna65. 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

59
The Constitution of Indiana.
60
The Constitution of Indiana. See: Maneka Gandhi v. Union of India, 1978 (2) SCR 621.
61
Justice K. S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081.
62
E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
63
United States v. Carolene Products, (1938) 304 U.S. 144.
64
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081.
65
Moot Proposition, 9th FYLC Ranka National Moot Court Competition 2019.

MEMORIAL ON BEHALF OF THE PETITIONER 3

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

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 protection66.

¶ 38. 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 India67, 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”
¶ 39. 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. 68

¶ 40. 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.69This creates an unprecedented situation of a
surveillance state arising, which goes against the ethos of the judgement delivered in PUCL
v. Union of India.70

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

¶ 41. It is humbly submitted before the Hon’ble Court of Indiana that since the PUCL71 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 72

66
Moot Proposition, 9th FYLC Ranka National Moot Court Competition 2019.
67
PUCL v. Union of India, (1997)1 SCC 301.
68
PUCL v. Union of India, (1997) 1 SCC 301.
69
S.G. Vombatkere v. Union of India, W.P.(C) No. 000679 - / 2019.
70
PUCL v. Union of India, (1997) 1 SCC 301.
71
PUCL v. Union of India, (1997) 1 SCC 301.
72
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.

MEMORIAL ON BEHALF OF THE PETITIONER 4

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

constituted by the Planning Commission in the year of 2012, the Right to Privacy 73judgement
in the year of 2017, the Aadhaar Judgement 74in the year of 2018 and Justice Srikrishna
Committee 75set up to recommend an era of new data protection laws in India.

73
KS Puttaswamy v. Union of India, (2017) 10 SCC 1.
74
KS Puttaswamy v. Union of India, (2019) 1 SCC 1.
75
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.

MEMORIAL ON BEHALF OF THE PETITIONER 5

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

¶ 71. It is humbly submitted before the honourable Court assumption of criminality on the part of
the government that each person will indulge in money laundering is what makes it violation
of right to privacy. In the case, Ram Jethmalani v. Union of India119, the Court that
revelation of bank details without prima facie ground of wrongdoing would be violative of
right to privacy. The said decision has been approved in K.S. Puttaswamy120. Under the garb
of prevention of money-laundering or black money, there cannot be such a sweeping
provision which targets every resident of the country as a suspicious person. Presumption of
criminality is treated as disproportionate and arbitrary.

 ¶ 72. In Lal Babu Hussein v. Electoral Registration Officer121, this Court had struck down the
order of the Electoral Officer asking the residents of a particular en masse to prove their
identity, as unconstitutional. In the case, the EO went on the assumption that all inhabitants of
a particular area were foreigners, notwithstanding their name appearing in earlier electoral
rolls.

[4.2.1.] LINKING OF BANK ACCOUNTS WITH PEHCHAN DATABASE DOES NOT MEET THE
TEST OF PROPORTIONALITY AND VIOLATES RIGHT TO PRIVACY

¶ 73. It is humbly submitted to the Court that, nobody would keep black money in the bank
account. However, there is a possibility of opening an account in an assumed name and
keeping black money therein which can be laundered as well. However, the persons doing
such an act, if at all, would be very few. More importantly, those having bank accounts with
modest balance and routine transactions can be safely ruled out. Therefore, the provision in
the present form does not meet the test of proportionality. Therefore, for checking this
possible malice, there cannot be a mandatory provision for linking of every bank account122
Further, It is argued that those persons who do not choose to enrol for Aadhaar number would
not be in a position to open the bank account or even operate the existing bank account and
there is no valid explanation as to why all bank accounts had to be authenticated.

¶ 74. It is further submitted that in case a person fails to link Aadhaar with the bank account, such
person would be rendered ineligible to operate the bank account, which would amount to
forfeiting her money lying in the account which belongs to her. This amounts to depriving the
person from her property and is, therefore, violative of Article 300-A of the Constitution as

119
Ram Jethmalani v. Union of India, (2011) 8 SCC 1.
120
KS Puttaswamy v. Union of India, 10 SCC 1 2017.
121
Lal Babu Hussein v. Electoral Registration Officer, (1995) 3 SCC 100.
122
KS Puttaswamy v. Union of India, 10 SCC 1 2017.

MEMORIAL ON BEHALF OF THE PETITIONER 6

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

such a deprivation can take place only by primary legislation and not by subordinate
legislation in the form of Rules. Much emphasis is also laid on the argument that the
amended Rule does not pass the proportionality test as discussed in the Modern Dental
College & Research Centre v. State of M. P123

¶ 75. In the case K.S. Puttaswamy v. Union of India124, it was held that the linking of Pehchan
detail is a kind of compromise with the national security of the nation because national
security is not just about securing the borders of the nation but also securing the rights of
each and every individual residing in the country.

¶ 76. It is also submitted that, No explanations have been given as to how mandatory linking of
every bank account will eradicate/reduce the problems of “money-laundering” and “black
money”. SBRI (State Bank of Republic of Indiana) allege that the enrolment details of their
vendors had been stolen and misused. Similarly, Pehchan details of enrolment operator stolen
and misused, show UIDARI records: Report (the biometrics of an enrolment official, who
was a vendor with the SBRI in Chandigarh, had been stolen, and use to generate false
enrolments under Pehchan enrolments125. Therefore, linking bank accounts details with such a
vulnerable Pehchan database is nothing but jeopardizing the national security as these
confidential details could be easily access and misused.

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

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

¶ 77. It is humbly submitted before the honourable Court that section 43-A of IT ACT, state that (i)
defines “body corporate” to mean any company and to include a firm, sole proprietorship or
other association of individuals engaged in professional or commercial activities. Personal
information leaked or lost by government agencies will not be covered under Section 43-
A. 126 As stated above Sec 43-A of IT Act does not cover leakage of personal information by
the government agencies, and also Biometric information falls under the ambit of “personal
and sensitive information” thereby making it prone to cyber threat instead of preventing it.

123
Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353.
124
KS Puttaswamy v. Union of India, 10 SCC 1 2017.
125
P.4, Moot proposition, 9th FYLC Ranka National Moot Court Competition, 2019.
126
KS Puttaswamy v. Union of India, 1 SCC 1 2019. See also: Sandeep Singh Jadoun v. Central Public
Information Officer, DGEAT CIC/DGEAT/A/2018/117567, Dr. Sonal Asthana v. State of Karnataka, Criminal
Petition No.1729 OF 2016.

MEMORIAL ON BEHALF OF THE PETITIONER 7

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

[5.1.] SECTION 43-A OF THE INFORMATION TECHNOLOGY ACT,2000 APPLIES ONLY TO

BODY CORPORATE.

¶ 78. It is humbly submitted that Negligence in implementing reasonable security standards and
practices under section 43-A of the Information Technology Act, 2000. It is humbly
submitted that to satisfy the breach of Section 43A, it must be shown that the body corporate
was negligent in implementing “reasonable security practices and procedures” in relation to
such sensitive personal data. For a policy/system to constitute a reasonable security practice
under Section 43A of the IT Act, it must be one that is “designed to protect such information
from unauthorised access, damage, use, modification, disclosure or impairment, as may be
specified in an agreement between the parties or as may be specified in any law for the time
being in force.”127 As such, the security standards outlined in the (Reasonable security
practices and procedures and sensitive personal data or information) Rules, 2011. Rules
constitute reasonable security standards as under the above definition and are mandatorily
applicable to the Respondent and any breach thereof is actionable under the terms of Section
43A of the IT Act. It is submitted that the and/or its various affiliates operating under its
overall supervision have time and again, violated these important security standards.

[5.2.] VIOLATION OF THE SECTION 72-A OF THE INFORMATION TECHNOLOGY ACT. 2000

¶ 79. It is humbly submitted that Section 72-A of the IT Act128 makes intentional disclosure of
“personal information” obtained under a contract, without consent of the parties concerned
129
and in breach of a lawful contract, punishable with imprisonment and fine. Since there has
been no code yet that explicitly covers the issue of data protection, IT Act 2000 while
originally being meant for individual protection, it covers the issue of data leakage of
personal and sensitive information under UIDARI scheme.

130
¶ 80. Rule 2(i) of the Sensitive Personal Data Rules defines “personal information” to mean any
information that relates to a natural person, which, either directly or indirectly, in
combination with other information available or likely to be available with a body corporate,

127
S. 43 A, Information Technology Act, 2000.
128
S. 72 (A) Information Technology Act, 2000.
129
Justice Yatindra Singh, Cyber Laws (Lexis Nexis,6th edition, 2016).
130
Information Technology (Information Security Practices and Procedures for Protected Systems) Rules, 2018.

MEMORIAL ON BEHALF OF THE PETITIONER 8

 9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019

is capable of identifying such person. Thus, biometrics will form a part of “personal
information”.

¶ 81. Since Section 72A only penalises acts of disclosing personal information about a person
obtained while providing services under a lawful contract, the scope of it is limited as well.

¶ 82. A number of state instruments have brought the data leakage of personal and sensitive
information forward, such as : (i) SBRI, that pointed the misuse of the personal information
of their enrolment officers, including the data of an enrolment officer in Chandigarh being
stolen (ii) 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 (iii) and the instance
of an IT firm working on app for ‘TDP’ stealing data. 131 Henceforth, it is evident that no data
protection measures have been employed and that the provisions under the Information
Technology Act 2000 are incapacitated to deal with the severity of the issue at hand.

¶ 83. In the case of KS Puttaswamy v. Union of India132, it was held that

“The absence of a legislative framework rendered the collection of biometric

data vulnerable to serious violations of privacy. No invasion of privacy can be
allowed without proper, adequate and stringent safeguards providing not only
penalties for misuse or loss of one's personal information, but also for protection
of that person.”
¶ 84. Henceforth, Pehchan is a grave injustice to the citizens of the Republic of Indiana, for it
mitigates against constitution abiding values and its foundational morality and has the
potential to enable an intrusive state to become a surveillance state on the basis of each
individual whose information is stored in this joint electronic mesh.133

131
Moot Proposition, 9th FYLC- Ranka National Moot Court Competition, 2019.
132
KS Puttaswamy v. Union of India, 1 SCC 1 2019.
133
Trisha Jalan, Aadhaar PIL in Delhi HC: Shamnad Basheer calls for committee to ascertain extent Of Aadhaar
data breaches (23/05/19), avalibale at, https://www.medianama.com/2019/05/223-shamnad-basheer-comittee-
for-aadhaar-damages/, last seen on 01/09/2019.

MEMORIAL ON BEHALF OF THE PETITIONER 9

9TH FYLC- RANKA NATIONAL MOOT COURT COMPETITION, 2019

PRAYER

MEMORIAL ON BEHALF OF THE PETITIONER XV