Memorial for justice puttuswamy case i.e, right to privacy case, Papers of Constitutional Law

Download Memorial for justice puttuswamy case i.e, right to privacy case and more Papers Constitutional Law in PDF only on Docsity! TEAM CODE: T-47 A BEFORE THE HON’BLE SC OF MANDIA IN THE MATTER OF: MR. SATISH DHANKAR ... PETITIONER V. THE UNION OF MANDIA ... RESPONDENT SPECIAL LEAVE PETITION NO. ****/2017 ON SUBMISSION TO THE HON’BLE SC OF MANDIA UNDER ART. 136 OF THE CONST. OF MANDIA WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER COUNSEL APPEARING ON BEHALF OF THE PETITIONER IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 II MEMORIAL ON BEHALF OF PETITIONER TABLE OF CONTENTS List of Abbreviations .............................................................................................................. iv Index of Authorities ................................................................................................................. v Statement of Jurisdiction ....................................................................................................... ix Statement of Facts .................................................................................................................... x Issues Presented ..................................................................................................................... xii Summary of Arguments ...................................................................................................... xiii Arguments Advanced .............................................................................................................. 1 [1]. That the Special Leave Petition is mainatainable ............................................................ 1 [1.1]. The matter involves Question of Law of General Public Importance...................... 1 [1.2] The matter involves Substantial Question of Law and Gross Injustice has been done .................................................................................................................................... 2 [1.2.1] Substantial Question of Law is involved............................................................ 2 [1.2.2] Gross Injustice has been done ............................................................................ 3 [1.2.3] Finding of Facts may give rise to Substantial Question of Law. ....................... 3 [2]. That the Pehchaan Policy and the Pehchaan Act, 2014 brought by the Government are not Constitutional ................................................................................... 4 [2.1] The Act was brought by the Legislature of the State ................................................ 4 [2.2] The Pehchaan Policy and the Pehchaan Act, 2014 brought by the Government violate the Fundamental Rights of the People ................................................................... 4 [3]. That the Pehchaan Project of the Government is violative of the Fundamental Rights of the People provided by the Constitution ........................................................... 5 [3.1] Violation of the Fundamental Right to Privacy of the People ................................. 5 [3.2] Mandia’s Commitment under International Law ...................................................... 6 [3.1.1] Pehchaan Project of the Government is not in accordance with the ‘Procedure Established by Law’ as per Art. 21 of the Constitution ................................................. 8 [3.1.2] The Pehchaan Project of the Government is in violation of Art. 19 of the Constitution .................................................................................................................... 9 IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 V MEMORIAL ON BEHALF OF PETITIONER INDEX OF AUTHORITIES CONSTITUTION Art. 136, Const. of India. Const. of Mandia………………………………………………………………………...passim STATUTES 1. Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016...................................................................................................................................... 19 2. Protection of Human Rights Act, 1993 .................................................................................. 5 CASES 1. A. S. Narayan v. State of Andhra Pradesh, AIR 1996 SC 1765 .......................................... 12 2. A.K. Gopalan v. State of Madras, AIR 1950 SC 27 .............................................................. 9 3. Achyut Adhicary v. West Bengal, AIR 1963 SC 1039.......................................................... 3 4. Ameronissa v. Mehboob, AIR 1953 SC 71 ......................................................................... 10 5. Bachan Singh v. State of Punjab, (1980) 2 SCC 684............................................................. 5 6. Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748 ......................................................... 9 7. Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191............................................... 10, 11 8. C.C.E v. Standard Motor Products, AIR 1989 SC 1298 ........................................................ 1 9. Chameli Singh v. State of U.P., (1996) 2 SCC 549 ............................................................. 14 10. Collector of Malabar v. Erimal Ebrahim Hajee, AIR 1957 SC 688 .................................... 9 11. Dale & Carrington Invt. Ltd. v. P.K. Prathapan, (2005) 1 SCC 212 ................................... 2 12. Deep Chand v. State of U.P., AIR 1959 SC 648 ................................................................. 4 13. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555 ............................................. 7, 12 14. Express Newspapers (Private) Ltd. v. Union of India, (1959) 1 SCR 12 .......................... 10 15. Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 1746 ................................ 13, 14 16. Gobind v State of Madhya Pradesh, (1975) 2 SCC 148 ................................................ 6, 17 17. Haryana State Industrial Corp. v. Cork Mfg. Co. (2007) 8 SCC 359. ................................. 1 18. Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai (2004) 3 SCC 214 .......... 1 19. Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081 .................................................................................................................................... 2, 3, 7, 9 20. Kathi Ranning Rawat v. State of Saurashtra, AIR 1952 SC 123 ................................... 3, 12 21. Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404 ................................. 10, 12 IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 VI MEMORIAL ON BEHALF OF PETITIONER 22. Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461 ............................................. 14 23. Kharak Singh v. State of U.P. and Ors., AIR 1963 SC 1295 ................................... 6, 14, 16 24. LIC of India v. Consumer Education and Research Centre, (1995) 5 SCC 482 ................ 14 25. M.R.F Ltd. v. Inspector of Kerala Govt., (1998) 8 SCC 227 ............................................ 16 26. Maruti Shripati Dubal vs. State of Maharashtra, (1986) 88 BOMLR 589 .......................... 9 27. Md. Ishaq v. State, AIR 1961 All 532 ................................................................................. 5 28. Minerva Mills v. Union of India, AIR 1980 SC 1789 ....................................................... 18 29. Moulana Mufti Syed Md. Noorur v. State Of West Bengal and Ors. AIR 1999 Cal 15 ..... 9 30. Mr. X v. Hospital Z, (1998) 8 SCC 296........................................................................... 7, 8 31. Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 .................................. 14 32. Om Prakash Sood v. Union of India, Civil Appeal No. 9169 of 1996. ............................... 3 33. P.A. Jacob v. Superintend of Police, Kottayam, AIR 1993 Ker 1 ....................................... 9 34. Pawan Kumar v. State of Haryana (2003)11 SCC 241 ........................................................ 1 35. People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301 ..................... 6, 10 36. People’s Union for Civil Liberties v. Union of India, AIR 1991 SC 207............................ 8 37. Pritam Singh v. The State, AIR 1950 SC 169 ..................................................................... 3 38. PUCL v. Union of India, AIR 1991 SC 207 ........................................................................ 6 39. R K Dalmia v. Justice Tendulkar, AIR 1958 SC 538 ........................................................ 17 40. R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 .................................................... 6 41. Rajgopal v. State of Tamil Nadu, 1994 6 SCC 632 ............................................................. 6 42. Ram Piari v. Bhagwant, AIR 1990 SC 1742 ....................................................................... 3 43. Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1 .............. 6, 8 44. Ranjit v. State of Maharashtra, AIR1965 SC 881 .............................................................. 10 45. Re Special Courts Bill Case, AIR 1978 SC 478 ................................................................ 12 46. Renu v. District and Session Judge, Tis Hazari, AIR 2014 SC 2175 .................................. 4 47. Sharda v. Dharmpal, AIR (2003) SC 3450 .......................................................................... 7 48. Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314 ......................................................................................................................... 2 49. Sripur Paper Mills v. Comm. of Wealth Tax, AIR 1970 SC 1520 ...................................... 3 50. State of Andhra Pradesh v. P. Sagar, 1968 SCR (3) 565 ................................................... 13 51. State of Bihar v. Shaila Bala, AIR 1952 SC 329 ............................................................... 10 52. State of Madras v. Champakam Dorarirajan, AIR 1951 SC 228 ....................................... 17 53. Sumati Dayal v. CIT, (1995) 214 ITR 801 .......................................................................... 2 54. Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1 ............................................. 11 IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 VII MEMORIAL ON BEHALF OF PETITIONER 55. Triloki Nath v. State of Jammu and Kashmir, 1967 SCR (2) 265 ..................................... 13 56. Union of India v. Col. L.S.N. Murthy, (2012) 1 SCC 718 .................................................. 4 57. Unni Krishnan v. State of A.P. (1964) 1 SCR 332 .............................................................. 6 58. V.K Javali v. State of Mysore, AIR 1966 SC 1387 ........................................................... 10 59. Vajravellu Mudaliar v. Special Deputy Collector for Land Acquisition, AIR 1965 SC 1017...................................................................................................................................... 10 60. Vishaka v State of Rajasthan, (1997) 6 SCC 241 ................................................................ 5 FOREIGN CASES 1. Grutter v Bollinger, 539 U.S. 306 (2003) ............................................................................ 17 2. Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557 (1995) ................................................................................................................................................ 9 3. Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S. 547 (1990) 17 4. United States v. Carolene Products, 304 U.S. 144 (1938) ..................................................... 7 BOOKS 1. D. D. Basu Commentary on The Constitution of India, (8th ed., Lexis Nexis Butterworth Wadhwa Publications, Nagpur, 2008) ............................................................................... 8, 9 2. Granville Austin, Cornerstone of a Nation (Indian Constitution) 75 Oxford India (1999) . 17 3. H.M. Seervai, Constitutional Law of India, (4th ed., Universal Law Publishing, New Delhi, 2010) ...................................................................................................................................... 1 4. Halsbury’s Laws of India, Vol. 35, (2nd ed.Lexis-Nexis Butterworth Wadhwa, Nagpur, 2007) ...................................................................................................................................... 1 5. Immanuel Kant, The Moral Law: Groundwork of the Metaphysic of Morals, 42 (Herbert James Paton eds., Psychology Press, London, UK, 2005) ................................................... 15 6. M P Jain, Indian Constitutional Law, (7th ed., Lexis-Nexis Butterworth Wadhwa Publications, Nagpur, 2016) ................................................................................................ 11 INTERNATIONAL INSTRUMENTS 1. Art. 12, Universal Declaration of Human Rights, 1947 (Adopted on December 10, 1948) .. 5 2. Art. 9, International Convention on Civil and Political Rights (Adopted by United Nations General Assembly on December 16, 1966) ........................................................................... 8 IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 X MEMORIAL ON BEHALF OF PETITIONER STATEMENT OF FACTS BACKGROUND The Republic of Mandia has a democratic parliamentary form of government with a federal structure based on principles of free and fair elections, equality, liberty, fraternity, transparency, accountability of state, freedom of religion, independent and autonomous judiciary and election commission, inter alia as its core values. The Constitution of Mandia also provides for an independent judiciary. INTRODUCTION OF PEHCHAAN POLICY The government of Mandia formulated ‘Pehchaan Policy’ for profiling of its citizens for making of Pehchaan cards. This policy aimed at saving duplicity of identities, identifying illegal immigrants, checking the leakage in the government schemes and preventing corruption happening in PDS and other subsidy providing schemes of the government. PRIVATE BODIES AND REQUIREMENTS FOR MAKING OF PEHCHAAN CARDS National Unique Identification Authority was constituted on 30th November, 2009 which assigned the task of making Pehchaan cards to private entities who further outsourced the task to private vendors. For this purpose, they took citizen’s details like finger prints of both hands, scanning of iris, blood group, spouse and children details, educational qualification, number of spouses and their religion, details of life-threatening diseases like AIDS, cancer, hepatitis-B, permanent infertility, criminal/civil cases pending and government loan or any other liability. PIL FILED BY MR. SATISH DHANKAR Petitioner, Mr. Satish Dhankar, challenged the policy of mandatory Pechaan cards in the HC of Nelhi on 22nd January, 2009 through PIL contending Pehchaan policy violates right to privacy and right to speech and expression; especially the right to remain silent and not to part with intimate information about oneself. He contended making it mandatory to provide information that is very intimate and integral to one’s personality is unconstitutional and violative of fundamental rights. Meanwhile, the govt. made Pehchaan card compulsory for seeking benefits under social welfare schemes. Subsequently, on clarification of interim order IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 XI MEMORIAL ON BEHALF OF PETITIONER passed by HC, issued on petitioner’s plea, the govt. could make it mandatory only for non- benefit schemes. AMENDMENT OF PETITION On 11th August, 2014, the govt. enacted the Pehchaan Act, 2014 which made Pehchaan cards mandatory for all benefit and non-benefit schemes, and it gave statutory basis to the National Unique Identification Authority. This Act provided for data protection and penalties and punishments for data leakages. The petitioner, thereby requested for amendment of Petition to challenge the Pehchaan Act, 2014 as well, which was accepted by HC. Subsequently, the petitioner contended that data collected by the govt. is not safe and it can be leaked to private entities threatening life and liberty of people. He also claimed that this data could be used by private companies for telemarketing or by majoritarian governments for communal profiling of the communities and also, that the database has already been hacked by an IIT graduate. The respondents responded to this by arguing that there is no right to privacy provided in any provision of Constitution of Mandia and promised to bring soon a substantive law for data protection. REJECTION OF PIL BY HC The HC rejected the PIL after hearing the matter in detail and held that Pehchaan Act, 2014 is constitutional and Pehchaan cards can be made mandatory. It further held that the right to deny information to the govt. cannot be held to be fundamental right in the light of necessity to protect the state from terrorism and other security related problems. SLP FILED BY PETITIONER IN SC The petitioner has approached the SC of Mandia through a Special Leave Petition and has prayed for quashing the judgment of Hon’ble HC of Nelhi and to declare the Pehchaan Act, 2014 and the whole Pehchaan project of the govt. of Mandia to be unconstitutional. IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 XII MEMORIAL ON BEHALF OF PETITIONER ISSUES PRESENTED ISSUE 1 WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE? ISSUE 2 WHETHER THE PEHCHAAN POLICY AND THE PEHCHAAN ACT, 2014 BROUGHT BY THE GOVERNMENT OF MANDIA ARE CONSTITUTIONAL? ISSUE 3 WHETHER THE PEHCHAAN PROJECT OF THE GOVERNMENT OF MANDIA IS VIOLATIVE OF THE FUNDAMENTAL RIGHTS OF THE PEOPLE PROVIDED BY THE CONSTITUTION? ISSUE 4 WHETHER THE GOVERNMENT HAS TAKEN ADEQUATE MEASURES TO SECURE THE DATA COLLECTED FOR THE PURPOSE OF MAKING PEHCHAAN CARDS? IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 1 MEMORIAL ON BEHALF OF PETITIONER ARGUMENTS ADVANCED [1]. THAT THE SPECIAL LEAVE PETITION IS MAINTAINABLE 1. It is humbly submitted before this Hon’ble Court that, the Special Leave Petition filed by the petitioner, Mr. Satish Dhankar is maintainable, as the matter involves a substantial question of law of general public importance. If the SC does not intervene, it will result in gross injustice and that, miscarriage of justice has already occurred, by the erring judgment of the HC of Nelhi, which declared the Pehchaan Project as constitutional,1 with complete disregard for the fundamental right of privacy of the people. Therefore, the special leave petition of the petitioner must be accepted, so that the Hon’ble Court can use its wide jurisdiction conferred under Art. 136,2 to correct the wrong done by the decision given by the HC of Nelhi. [1.1]. THE MATTER INVOLVES QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE 2. It is humbly submitted before the Hon’ble Court that the jurisdiction conferred under Art. 136 on the SC is corrective one and not a restrictive one3 and can be invoked when a question of law of general public importance arises,4 by filing Special Leave Petition. It is well-settled that illegality must not be allowed to be perpetrated and failure by the SC to interfere with the same would amount to allowing the illegality to be perpetuated,5 therefore a duty is enjoined upon the SC to exercise its power by setting right the illegality in the judgments. 3. Art. 136 provides residuary power to the SC to do justice where the court is satisfied that injustice has been done.6 Illegality should not be allowed to be perpetrated merely for the sake of upholding technicalities.7 1 Moot Proposition, ¶ 24. 2 Art. 136, The Constitution of India, 1950. 3 Haryana State Industrial Corp. v. Cork Mfg. Co., (2007) 8 SCC 359. 4 Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314. 5 Pawan Kumar v. State of Haryana, (2003)11 SCC 241; See also, H.M. Seervai, Constitutional Law of India, Vol. 1, 832 (4th ed., Universal Law Publishing, New Delhi, 2010); See also, Halsbury’s Laws of India, Vol. 35, 564 (2nd ed., Lexis-Nexis Butterworth Wadhwa, Nagpur, 2007). 6 C.C.E v. Standard Motor Products, AIR 1989 SC 1298; See also, H.M. Seervai, Constitutional Law of India, Vol. 2, 845 (4th ed., Universal Law Publishing, New Delhi, 2010). 7 Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214. IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 2 MEMORIAL ON BEHALF OF PETITIONER 4. In the instant matter, the right to privacy, which is an integral part of the right to life of people,8 is violated by the state and their personal sensitive information has leaked,9 which is a matter of general public importance and therefore, calls for intervention by the SC. [1.2] THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAW AND GROSS INJUSTICE HAS BEEN DONE 5. It is humbly submitted by the petitioner before this Hon’ble Court that, the matter involves substantial question of law as it concerns the violation of fundamental right of privacy of the people of Mandia and gross injustice has already been meted out by the decision of HC of Nelhi, which has hastily and arbitrarily declared it as a common law right, and held the Pehchaan Policy and the Pehchaan Act, 2014 brought by the government of Mandia as constitutional. [1.2.1] SUBSTANTIAL QUESTION OF LAW IS INVOLVED 6. It is humbly submitted that where findings are entered without considering relevant materials and without following proper legal procedure, interference of SC is called for.10 In the instant case, the Hon’ble HC has erred in deciding a very substantial question of law, related to right to life of the people. 7. Whether a matter involves substantial question of law, depends on whether it is of general public importance, which directly or substantially affects the rights of the parties, or it has already been decided by the highest Court.11 It will, therefore, depend on the facts and circumstance of each case whether a substantial question of law is involved in the case.12 8. It is submitted that, the present case involves a matter of general public importance as it directly and substantially affects the rights of the parties as the order is erroneous and prejudicial to the interest of people and also the HC had erred in dismissing the PIL stating that Right to privacy is not a fundamental right of citizen under Art. 21. 8 Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors, AIR 2015 SC 3081. 9 Moot Proposition, ¶ 24. 10 Dale & Carrington Invt. Ltd. v. P.K. Prathapan, (2005) 1 SCC 212. 11 Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314. 12 Sumati Dayal v. CIT, (1995) 214 ITR 801. IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 3 MEMORIAL ON BEHALF OF PETITIONER [1.2.2] GROSS INJUSTICE HAS BEEN DONE 9. The judgment of HC of Nelhi is bad in the eyes of law as it did not recognize the right to privacy of people which is an intrinsic part of right to life as fundamental right rather as a common law right.13 Grave miscarriage of justice has occurred because of this serious and flagrant violation of law has been committed by the HC14 for which interference of the SC is required. 10. The requirement of personal details for making of Pehchaan Cards, like finger print, iris scan, motherhood, procreation and other like information constitute grave violation of right to privacy of the people, and grave injustice has been meted out by the judgment of the HC by declaring the Pehchaan Act which makes Pehchaan Cards mandatory, as constitutional. [1.2.3] FINDING OF FACTS MAY GIVE RISE TO SUBSTANTIAL QUESTION OF LAW. 11. The SC is not precluded from going into the question of facts under Art. 136, if it considers it necessary to do so.15 Art. 136 uses the words ‘in any cause or matter’. This gives widest power to this court to deal with any cause or matter.16 It is plain that when the SC reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal has not given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts, or otherwise can stand in the way of the exercise of this power.17 12. In the instant case, the HC, in haste, reached the conclusion that right to deny information to the government cannot be held to be fundamental right as a matter of national security is involved,18 and that the Pehchaan would be beneficial in making further beneficial government schemes. Thus, on the above grounds, it is humbly submitted that the petition is maintainable before the Hon’ble SC of Mandia. 13 Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors, AIR 2015 SC 3081. 14 Ram Piari v. Bhagwant, AIR 1990 SC 1742. 15 Kathi Ranning Rawat v. The State of Saurashtra, AIR 1952 SC 123, See also, Achyut Adhicary v. West Bengal, AIR 1963 SC 1039. 16 Pritam Singh v. The State, AIR 1950 SC 169. 17 Sripur Paper Mills v. Comm. of Wealth Tax, AIR 1970 SC 1520; See also, Om Prakash Sood v. Union of India, Civil Appeal No. 9169 of 1996 18 Moot Proposition, ¶ 24. IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 6 MEMORIAL ON BEHALF OF PETITIONER According to Black’s Law Dictionary, Privacy has been defined as, “right to be left alone”33; right of a person to be free from any unwarranted publicity; right to live freely from any unwarranted interference by the public in matter with which public is not necessarily concerned”. It is on the desire of people to choose freely under what circumstances and to what extent they will expose themselves, their attitude and their behaviour to others.34 21. The scope of Art. 21 is very broad and it covers every aspect of life which is required for an individual to live a healthy and secured life. Art. 21 takes all those aspects of life which go to make a person's life meaningful and even State can’t violate it.35 Art. 21 protects the dignity of human life, one's personal autonomy, one’s right to privacy, etc. Right to dignity has been recognised to be an essential part of the right to life and accrues to all persons on account of being humans. If we talk of right to privacy then it also contains a broad scope in it like tapping of telephonic conversation, disclosure of dreadful disease36, subjecting to medical tests.37 Here in the present case, the information sought under Pehchaan Scheme is very intimate and integral to one’s personality and hence making it mandatory to provide basic and intimate information38 is unconstitutional and violative of Fundamental Right to privacy. [3.2] MANDIA’S COMMITMENT UNDER INTERNATIONAL LAW 22. The recognition of privacy as a fundamental constitutional value is a part of Mandia’s commitment to a global human rights regime. The state is required to endeavour to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another”.39 23. The Universal Declaration of Human Rights of which India is a party recognises that everyone has the protection of law against interference with his privacy, family, home or correspondence, or attack upon his honour and reputation.40 Similarly, the International Covenant on Civil and Political Rights casts an obligation on states to respect, protect and fulfil its norms. Art. 17 of the ICCPR casts a duty upon the states to adopt and enact measures to prohibit undue interferences with the exercise of right to privacy of people. The 33 Rajgopal v. State of Tamil Nadu, 1994 6 SCC 632; See also, Warren and Brandeis, “The Right to Privacy”, Vol.4 (5), Harvard Law Review, 195-196 (1890). 34 Alan Westin, Privacy and Freedom (1967) in Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081. 35 Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081. 36 Mr. X v. Hospital Z, AIR (1995) SC 95. 37 Sharda v. Dharmpal, AIR (2003) SC 3450. 38 Moot Proposition, ¶ 7. 39 Art. 51(C), The Constitution of India, 1950. 40 Art. 12, Universal Declaration of Human Rights, 1947 (Adopted on December 10, 1948). IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 7 MEMORIAL ON BEHALF OF PETITIONER government in order to give effect to these provisions of ICCPR has enacted the Protection of Human Right Act, 1993 which includes liberty as the basic human rights guaranteed to the people.41 24. The obligations assumed by India in International Conventions and Treaties, must reflect in the legislations enacted by the government.42 Also, in absence of any provision of domestic law, the provisions of the Conventions of which the country is a party shall be applicable.43 25. Where there is a contradiction between international law and a domestic statute, the Court would give effect to the latter.44 In the present case, there is no contradiction between the international obligations which have been assumed by Mandia and the Constitution. The Court should not readily presume any inconsistency. Mandia being a responsible member of the international community, the Court must adopt an interpretation which abides by the international commitments made by the country and recognise right to privacy as fundamental right. 26. The decision of the HC of Nelhi that right to privacy is a common law right,45 holds no ground as it has been clearly observed in the recent case of K. S. Puttaswamy,46 that; “The fact that a right may have been afforded protection at common law does not constitute a bar to the constitutional recognition of the right. The central theme is that privacy is an intrinsic part of life, personal liberty and of the freedoms guaranteed by Part III which entitles it to protection as a core of constitutional doctrine. The protection of privacy by the Constitution liberates it, as it were, from the uncertainties of statutory law which, as we have noted, is subject to the range of legislative annulments open to a majoritarian government.” 27. Thus, the options canvassed for limiting the right to privacy include an Art. 14 type reasonableness enquiry;47 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 41 Section 2(1)(d), Protection of Human Rights Act, 1993. 42 Bachan Singh v. State of Punjab, (1980) 2 SCC 684; See also, Vishaka v. State of Rajasthan, (1997) 6 SCC 241. 43 Vishaka v State of Rajasthan, (1997) 6 SCC 241. 44 Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081. 45 Moot Proposition, ¶ 24. 46 Justice K. S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081. 47 E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555. IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 8 MEMORIAL ON BEHALF OF PETITIONER 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,48 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.49 [3.1.1] PEHCHAAN PROJECT OF THE GOVERNMENT IS NOT IN ACCORDANCE WITH THE PROCEDURE ESTABLISHED BY LAW AS PER ART. 21 OF THE CONSTITUTION 28. Right to Privacy has been culled from Art. 21 of the Constitution of India,50 as the concept of privacy overlaps with that of liberty.51Right to Privacy is an integral part of Right to life and Personal Liberty,52 and it can be curtailed only in accordance with the “Procedure established by Law”, as provided under Art. 21 of the Constitution of India.53 29. International Convention on Civil and Political Rights of which India is a signatory also provides that it is duty of the state to protect the liberty of the people and it can be restricted, only in accordance with such procedure as are established by law.54 30. The SC in Maneka Gandhi,55 has laid down a triple test for any law to be considered to be in accordance with the ‘Procedure established by law’: (1) The law must prescribe a procedure (2) the procedure must satisfy the requirements of Arts. 14 and 19 (3) And, it should be just, fair and reasonable. 31. The Pehchaan Act, 2014 enacted by the government which makes making of Pehchaan Cards mandatory for all schemes (benefit and non-benefit both), is not in accordance with procedure established by law, i.e., it is neither just, fair and reasonable nor does it satisfy the requirements of Art. 14, 19 and 21 of the Constitution and therefore it is arbitrary and unreasonable amounting to infringement of right to privacy as no such circumstances exist that justify the restrictions imposed by the government on the exercise of right to privacy of people. 48 United States v. Carolene Products, 304 U.S. 144 (1938). 49 Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081. 50 Mr. X v. Hospital Z, (1998) 8 SCC 296. 51 Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148; See also, D.D. Basu Commentary on The Constitution of India, Vol. 3, 3138 (8th ed., Lexis Nexis Butterworth Wadhwa Publications, Nagpur, 2008). 52 Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1. 53 People’s Union for Civil Liberties v. Union of India, AIR 1991 SC 207. 54 Art. 9, International Convention on Civil and Political Rights (Adopted by United Nations General Assembly on December 16, 1966). 55 Maneka Gandhi v. Union of India, AIR 1978 SC 597. IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 11 MEMORIAL ON BEHALF OF PETITIONER of the Constitution, and the Pehchaan Project is unable to satisfy the requirements so laid down. [3.1.3.1] TEST OF REASONABLE CLASSIFICATION 37. While Art. 14 allows reasonable classification for the purposes of legislation it forbids any sort of class legislation.69 The test of reasonable classification was laid down by SC in Budhan Chaudhary v. State of Bihar,70 which provides that: (1) the classification proposed in the legislation must be founded on intelligible differentia and that, (2) there must be close nexus between the classification and the object of the Act. Principle of Intelligible Differentia 38. The expression intelligible differentia means difference capable of being understood and should be reasonable and not arbitrary.71 In the present case, the government seeks to profile and classify people based on educational qualification, religion, etc., which is arbitrary and unreasonable. There should be Rational Nexus between Classification and Objective Sought 39. It is contended that the law can only make and set apart the classes according to the needs and exigencies of the society.72 The legislative policy should be clear and definite and an effective method of carrying out that policy should be vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons.73 40. In the present case, the government of Mandia seeks information relating to education, religion, etc. from the people for the purpose of making Pehchaan Cards which does not have any relation with the object of the Act, and therefore the classification is not only unreasonable but also promotes class legislation. 69 Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191; See also, Ameronissa v. Mehboob, AIR 1953 SC 71; Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404; Vajravellu Mudaliar v. Special Deputy Collector for Land Acquisition, AIR 1965 SC 1017. 70 Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191. 71 M.P. Jain, Indian Constitutional Law, 876 (7th ed., Lexis-Nexis Butterworth Wadhwa Publications, Nagpur, 2016). 72 Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1. 73 M P Jain, Indian Constitutional Law, 917 (7th ed., Lexis-Nexis Butterworth Wadhwa Publications, Nagpur, 2016). IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 12 MEMORIAL ON BEHALF OF PETITIONER [3.1.3.1.1] Information sought from the people of Mandia for the of making Pehchaan Cards is unreasonable 41. Matters concerning family, motherhood and procreation are intimate to one’s person and should not be subject to intervention by state.74 Similarly, matters concerning education, communications and conversations, sexuality, marriage, procreation, individual beliefs, thoughts and emotions, political and other social groups, etc., are some of the private aspects of a person’s life, included within the realm of right to privacy as recognized by the American jurisprudence.75 In the present case, any of the details sought by the government for the purpose of making Pehchaan Cards like, number of spouses and children, laws under which marriage was solemnized, educational qualification, disorders like permanent infertility, religion to which both the spouses belong, are not only intimate to one’s person, but also cannot be treated as a class of their own as these do not adequately differentiate between the so called class of people and the rest. And, the classification so done has no relation with the objective of the Pehchaan Act. The Pehchaan Act has been brought by the government to reduce corruption, strengthen the security of the state and to ensure successful implementation of welfare schemes. There is no nexus between the classification and the objectives of the Act; therefore, it fails the test of reasonable classification. [3.1.3.2] TEST OF ARBITRARINESS 42. The Pehchaan Policy and the Pehchaan Act, 2014 of the government is arbitrary and unreasonable as there is no reasonable classification in place and the classification howsoever done has no nexus with the objectives of the law brought by the government of Mandia. The government asking for religion of the people for the purpose of making Pehchaan Cards is not only unreasonable but also in violation of Art. 25 of the Constitution of India. 43. Further, no proper guidelines have been laid in the Act for its implementation by the executive rendering it arbitrary76 which is the antithesis of right to equality guaranteed to the people by the Constitution.77 74 Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148; See also, Paris Adult Theatre I v Slaton, 413 US 49 (1973). 75 Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081, 163. 76 Kathi Ranning Rawat v. State of Saurashtra, AIR 1952 SC 123; See also, Re Special Courts Bill Case, AIR 1978 SC 478; Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404. 77 E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555. IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 13 MEMORIAL ON BEHALF OF PETITIONER [3.1.3.2.1] Disclosure of Religion 44. Among other things the government of Mandia also asks for religion of the person for the purpose of making Pehchaan Cards, which is in violation of Art. 25 of the Constitution of India. The word ‘religion’, as used in Art. 25 and 26 of the Constitution is personal to the person having faith and belief in the religion. It is the personal belief of an individual in his relation with the maker or the cosmos78 compelling the people to disclose their religion, would infringe their right to privacy. Further, Mandia is a secular state, and therefore, should not seek information as to religion of people for the purpose of making of Pehchaan Cards. The purpose of Pehchaan Cards is to provide for a national identification method, and it does not sit well with the concept of secularism enshrined in the Constitution79 that people must be identified by their religion. 45. Furthermore, while caste, sex, place of birth and other factors have been accepted by the SC as relevant in determining social and economic backwardness as such factors pertain to a class of people, but such determination cannot be solely based on religion or other like factors and such would amount to discrimination which has been prohibited under Art. 15(1) of the Constitution of India.80 Such discrimination will only promote communalism, which will be detrimental to the integrity of the country,81 which is goal of our Constitution which the government must strive to promote. [3.1.4] PEHCHAAN PROJECT OF THE GOVERNMENT OF MANDIA IS NOT JUST, FAIR AND REASONABLE 46. The SC has held in Maneka Gandhi’s Case,82 that for any law to be valid, it must be in accordance with the procedure established by law, i.e., the law in addition to satisfying the requirements of Arts. 14 and 19, must also be in conformity with the principles of Natural Justice which includes, that it must be just, fair and reasonable. Whether a law is just, fair, and reasonable is to be determined by the facts and circumstances of the case. 47. In the present case, according to the respondent it is necessary to introduce Pehchaan Cards mandatorily for the people in the country to implement welfare schemes successfully, 78 A. S. Narayan v. State of Andhra Pradesh, AIR 1996 SC 1765. 79 Preamble, The Constitution of India, 1950. 80 State of Andhra Pradesh v. P. Sagar, 1968 SCR (3) 565; See also, Triloki Nath v. State of Jammu and Kashmir, 1967 SCR (2) 265. 81 Preamble, The Constitution of India, 1950. 82 Maneka Gandhi v. Union of India, AIR 1978 SC 597. IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 16 MEMORIAL ON BEHALF OF PETITIONER which aims to be used as a multipurpose identification system, all the data pertaining to an individual could be accessed at one time. This situation severely compromises with the individual’s autonomy, which is a well enshrined concept in human rights philosophy by the great philosophers such as Emanuel Kant.99 In other words, every decision made by a person in Mandia could be under state surveillance. This could potentially lead to the denial of, and access to, many important social opportunities and other facilities for a particular section of people, who could be discriminated against by the state, using the information gathered from the Pehchaan Project.100 55. Such action is only justified in case where the person is accused of some offence, otherwise regular surveillance of day to day transaction by government of general public is not just and fair in any manner and constitutes a violation of right to life of the people.101 With regard to telephone tapping, the SC observed in Kharak Singh,102 that, while telephone interception of guilty person by the police through lawful means is justified in larger public interest, the same is not justified when an innocent citizen is involved and will amount to violation of right to privacy, of the person. 56. Further, the government has also provided that, if the Pehchaan card thus made is not linked with bank accounts, penal actions shall be taken,103 which is not only unjust and unreasonable, but also limits severely the autonomy of the individual, who is left with no choice but to comply. [3.1.4.2] THE RESTRICTIONS IMPOSED BY THE GOVERNMENT ON THE FUNDAMENTAL RIGHT OF PRIVACY OF THE PEOPLE IS NOT PROPORTIONAL TO OBJECTIVES OF THE ACT. 57. It is humbly submitted before this Hon’ble court that, the Principle of Proportionality envisages that a government ought to maintain a sense of proportion between its particular goals and the measure it takes to achieve those goals, so that its action impinges on the individual rights to the minimum extent so as to preserve public 99 Immanuel Kant, The Moral Law: Groundwork of the Metaphysic of Morals, 42 (Herbert James Paton eds., Psychology Press, London, UK, 2005). 100 Sheetal Asrani Dann, The Right to Privacy in the Era of Smart Governance: Concerns Raised By the Introduction of Biometric-Enabled National ID Cards in India, 47(1) The Journal of India Law Institute, 53-95, 67 (2005). 101 Gobind v. State of Madhya Pradesh, (1975)2 SCC 148; See also, Kharak Singh v. State of U.P. and Ors., AIR 1963 SC 1295. 102 Kharak Singh v. State of U.P. and Ors., AIR 1963 SC 1295. 103 Moot Proposition, ¶ 15. IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 17 MEMORIAL ON BEHALF OF PETITIONER interest.104The government requires the people to part with basic information about oneself, which is integral to one’s personality, as well as core biometric information, which could have as well been handled through other methods, given the facts and circumstances. For instance, the highly successful SSN Programme of the U.S government involves issuing of SSN cards to the residents which does not require disclosure of basic details like, marriage, infertility disorder, educational qualification inter alia, nor does it require parting with biometric information; and yet the programme has been successful so far in providing welfare entitlements to the needy.105 [3.1.4.2.1] Narrow Tailoring Test 58. The counsel further submits that, the measures taken by the government were not the least restrictive measures, The compelling state interest106 of the government i.e. to fulfil the objectives through collection of personal information should undergo great scrutiny that is one right should not suffer from another that is there must be a balance should be stricken between public right and individual right and the measures so taken should be tailored in a manner that infringes the right in narrowest manner i.e. it should satisfy narrow tailoring test107 to achieve its goals with minimal interception.108 [3.3] CONFLICT BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE POLICY 59. As per the respondent the main aim of the Pehchaan project is to prevent corruption and to ensure welfare entitlements provided by the government adequately reach the needy. The Pehchaan Policy and the Pehchaan Act, 2014 has been brought to give effect to Directive Principles of State Policy. Though, Directive Principles of State Policy are important in 104 Ajoy P.B., Administrative Action and the Doctrine of Proportionality in India, Vol. 1(6) International Organization of Scientific Research Journal of Humanities and Social Science, 16-23 (2012) available at www.iosrjournals.org; See also, M.R.F Ltd. v. Inspector of Kerala Govt., (1998) 8 SCC 227. 105 R. RamaKumar, Aadhaar: on a platform of Myths, The Hindu November 12, 2016 available at http://www.thehindu.com/opinion/lead/Aadhaar-on-a-platform-of-myths/article13673159.ece (Last visited on September 17, 2017). 106 Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148; See also, Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S. 547 (1990). 107 Grutter v. Bollinger, 539 U.S. 306 (2003). 108 Gautam Bhatia, “State Surveillance and the Right to Privacy in India: A Constitutional Biography”, Vol. 26(2) National Law School of India Review, 148 (2014). IV JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION, 2017 18 MEMORIAL ON BEHALF OF PETITIONER realizing the goals of the Constitution, the same should not override the fundamental rights guaranteed to the people.109 60. Art. 37 of the Constitution of India provides that though directive principles are fundamental in governance of the country, they are expressly made non- justiciable. On the other hand, fundamental rights are enforceable by the Courts,110 and the courts are bound to declare as void any law that is inconsistent with the fundamental rights. The Directive Principles has to conform and run as a subsidiary to the chapter on fundamental rights and in case of any conflict between fundamental rights and directive principles, fundamental rights would prevail. 111 61. The Constitution is founded on the bedrock of the balance between Part III and Part IV,112 but one should not be given absolute primacy over the other. The goals set out in the Part IV have to be achieved without the abrogation of the means provided for by Part III. To destroy the guarantees given by Part III in order to achieve the goals of Part IV is plainly to subvert the Constitution.113 Therefore, it is the responsibility of the government to come up with a scheme which adequately preserves the fundamental rights of the people. 62. Moreover, many identity card schemes based on biometric information have failed across the globe. In India itself, Aadhaar Card scheme has failed to show any success, while the risks involved are several.114 [4]. THAT THE GOVERNMENT HAS NOT TAKEN ADEQUATE MEASURES TO SECURE THEDATA COLLECTED FOR THE PURPOSE OF MAKING PEHCHAAN CARDS 63. The Pehchaan Project of the government of Mandia is devoid of adequate security measures to guarantee the security of data collected for the purpose of making Pehchaan Cards. The respondent is yet to bring substantive law for the protection of data.115 Though, there are penal provisions for offences relating to data leakage in the Pehchaan Act, but there 109 R K Dalmia v. Justice Tendulkar, AIR 1958 SC 538. 110 Art. 32, The Constitution of India, 1950. 111 State of Madras v. Champakam Dorarirajan, AIR 1951 SC 228. 112 Granville Austin, Cornerstone of a Nation (Indian Constitution) 75 Oxford India (1999). 113 Minerva Mills v. Union of India, AIR 1980 SC 1789. 114 Jean Dreze, Aadhar Coup, The Hindu March 15, 2016 available at http://www.thehindu.com/opinion/lead/jean-dreze-on-aadhaar-mass-surveillance-data- collection/article8352912.ece (Last Visited on September 12, 2017). 115 Moot Proposition, ¶ 23.