9th FYLC – RANKA MEMORIAL NATIONAL MOOT COURT COMPETITION,2019

TC-

9th FYLC – RANKA MEMORIAL NATIONAL MOOT COURT COMPETITION, 2019

BY

UNIVERSITY FIVE YEAR LAW COLLEGE, UNIVERSITY OF RAJASTHAN

BEFORE

THE REPUBLIC COURT OF INDIANA

JAGRUK LAW STUDENTS ASSOCIATION …………….(PETITIONER)

J

V.

REPUBLIC OF INDIANA………………………………….(RESPONDENT)

MEMORIAL ON BEHALF OF PETITIONER

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INDEX

 INDEX OF AUTHORITIES……………………………………………………
1. CASE REFFERED
2. BOOKS REFFERED
3. POLICY
4. JOURNALS AND REPORTS
5. LEGISLATIONS
6. ONLINE SOURCES
 STATEMENT OF JURISDICTION…………………………………..
 SYNOPSIS OF FACT……………………………………………………
 STATEMENT OF ISSUES………………………………………………
1. Whether the Writ Petition filed by the Petitioner under Article 32 of the
Constitution of Republic of Indiana is maintainable?
1.1 That the petition has the Locus Standi to approach the court
1.2 That there is a violation of Fundamental Rights Enshrined under Part III
under the constitution
1.3 That the Ordinance is challengable in Hon’ble Court
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 rights guaranteed under Part III of the
Constitution of Republic of Indiana?
2.1 Violation of the Right to Privacy
2.2 Violation of Article 19 of The Constitution of Indiana
2.3 Violation of Article 14 of The Constitution
2.3.1 Test of Reasonable Classification
2.3.2 Test of Arbitrariness
2.3.3 Act should be Just, Fair and Reasonable

3. Whether the public entities have the right to keep any personal/sensitive
information and bio-metric data of citizens of the Republic of Indiana, what

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happen in case of breach or leakage of personal and sensitive information of

citizen of Republic of Indiana and who will be liable for that?
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 Pehchan and Other Laws (Amendment) Ordinance,
2019?

ARGUMENTS/PLEADINGS………………………………………….

PRAYER…………………………………………………………

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INDEX AND AUTHORITIES

1. CASES REFFERED

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STATEMENT OF JURISDICTION

The Hon’ble Republic Court of Indiana has the jurisdiction in this matter under Article 32 of
the Constitution of Indiana which reads as follows:

32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Republic Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed

(2) The Republic Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by t

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SYNOPSIS OF FACT

1. The Republic of Indiana, located in south Asia is a multicultural nation. It is a

sovereign, democratic, republic, nation with the federal set up under the constitution
of Indiana. The country has adopted parliamentary system wherein president is the
executive head of the government. A detailed chapter in the constitution enumerates
various fundamental rights like right to equality, right to life and personal liberty,
right to freedom of religion, freedom to carry on any trade, profession and business,
and right to constitutional remedies. The fundamental rights are available against the
state and ‘state’ is defined by the constitution of the republic of Indiana under Article
12.
2. According to the government statistics, there are 354 million smart phones users and
1.2 billion mobile phone subscription turning the life of the citizens significantly
digitally. So, the government introduced unique digital identity scheme “pehchan”.
The scheme based on the collection of the personal information of the citizens
including the biometric information.
3. In 2009, planning commissions of the republic of Indiana issued a notification to
constitute pehchan authority to implement the pehchan identity scheme. However,
there was no regulation regarding collection of biometric information, storage and
usages of the information, nix check and balance with regard to the collection of
information.
4. In 2016, pehchan authority of the republic of Indiana was made a statutory body
under the provisions of Pehchan (Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) Act, 2016 by the Government. Several PILs were
filed before Hon’ble Republic Court of Indiana in 2012 on the ground that it is used as
a tool of surveillance, interfered with the federalism and is causing denial of the
fundamental rights of personal liberty and the leading petition from the above was
Michael Cross v. Republic of Indiana, 2012. The court issued notice to the republic
of Indiana to defend it.
5. In 2016, the parliament of the republic of Indiana introduced the Pehchan Bill, 2016
as a money bill in the Budget session, 2016 in the Lok Sabha, the same came to be
passed in March, 2016, which received Presidential Assent and was published in the
official Gazette of Republic of Indiana in March, 2016. Number of PILs was filed
against the Pehchan Act, 2016 and subsequently, first Writ Petition challenging the

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Pehchan Act titled as Trevor John V. Republic of Indiana tagged with the matter titled
as Michael Cross V. Republic of Indiana which was pending adjudication before
the constitutional Bench of the Hon’ble Republic Court of Indiana.
6. Under the Pehchan Act, 2016 various notification by the different ministers were
issued for making Pehchan No. a mandatory requirement for an individual to avail
different benefits, services and subtitles under various government schemes such as
TRARI (Telecom Regulation of the Republic of Indiana) launched the Pehchan
based e-KYC for mobile connections and re-verification of existing customers,
ITDRI ( Income Tax Department of the Republic of Indiana ) made mandatory to
present No. for obtaining “PAN” (Permanent Account Number) and filing one’s
return of the income under Income Tax Act and the Prevention of Money
Laundering (Maintenance of Records) Second Amendment Rules, 2017 was
passed and made Pehchan mandatory for e-KYC and consequently, Pehchan is
mandatory for opening and maintaining bank accounts.
7. A constitutional Bench of the Republic of Indiana passed its final order and
judgement disposing of the batch of Writ Petition filed under Article 32 of the
constitution in September, 2017 titled as Michael Cross V. Republic of Indiana,
2012 in which it upheld only two usages of Pehchan Database, and only by the
Government. It also ruled that even voluntary use of the Pehchan Database for
authentication by the private parties/entities was unconstitutional and court also noted
to bring the Data Protection Bill.
8. In January, 2019 the republic of Indiana passed the Pehchan and other Laws
(Amendment) Bill, 2018 in Lok Sabha which was lapsed. During that period,
Hon’ble Court of Arjuna and Karuna held there was no verification of the authenticity
of demographic data in the Pehchan Database and the information entered in the
pehchan identity cannot be treated as conclusive proof of the same as it is unverified
by any government agencies. Since January, 2019 a catena of articles were published
in newspaper and magazines which highlighted how the personal and sensitive data of
the citizens’ of the Republic of Indiana are compromised with; such as, SBRI ( State
Bank of Republic of Indiana) allege Pehchan misuse, as the enrolment details of their
vendors had been stolen and misused, Andra Pradesh: TDP app breach data 3.7 crore
voters, also an FIR filed by one John Mark, under section 66-B and 72 of the
information and technology act, 2000 and Section 120-b, 379, 420, and 188 of the

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Republic of Indiana Penal Code, 1860 vast misuse of demographic data, including
Pehchan data for private and election related purpose, and some others like Pehchan
details of the enrolment operator stolen and misused, show UIDARI records.
9. In March, 2019 the “Pehchan and other Laws (Amendment) Ordinance, 2019 was
promulgated by the president of Indiana. The UIDARI also notified the Pehchan
(Pricing of Pehchan Authentication Services) Regulations, 2019 in which UIDARI
will charge private entities per e-KYC transaction and Yes/No authentication
transaction. This Ordinance is seen as having deleterious impact on Fundamental
rights of the citizens of the Republic of Indiana guaranteed under Part III of the
Constitution, and for the security of personal Data, which is imperilled by allowing
private entities access to it. Also, under the Regulations private entities sub-worked
their responsibility to other private entities to make more profit which result into
leakage of personal and sensitive information of the citizens of the Republic of
Indiana.
10. The Writ Petition is filed by the Jagruk Law Students Association as a Public Interest
Litigation Under Article 32 of the Constitution of Republic of Indiana before the
Hon’ble Republic of Indiana for the adjudication of the issues of leakage of
informations by the private entities and permits private entities to access the Pehchan
eco-system after the Pehchan and other Laws (Amendment) Ordinance, 2019 and
Pehchan (Pricing of Pehchan Authentication Services) Regulations, 2019.

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ISSUES RAISED

[1.] WHETHER THE WRIT PETITION FILED BY THE PETITIONER UNDER

ARTICLE 32 OF THE CONSTITUTION OF REPUBLIC OF INDIANA IS
MAINTAINABLE?

[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 RIGHTS GUARANTEED UNDER PART III OF THE
CONSTITUTION OF REPUBLIC OF INDIANA?

[3]. WHETHER THE PUBLIC ENTITIES HAVE THE RIGHT TO KEEP ANY
PERSONAL/SENSITIVE INFORMATION AND BIO-METRIC DATA OF CITIZENS
OF THE REPUBLIC OF INDIANA, WHAT HAPPEN IN CASE OF BREACH OR
LEAKAGE OF PERSONAL AND SENSITIVE INFORMATION OF CITIZEN OF
REPUBLIC OF INDIANA AND WHO WILL BE LIABLE FOR THAT?

[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 PEHCHAN AND OTHER LAWS
(AMENDMENT) ORDINANCE, 2019?

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SUMMARY OF ARGUMENTS

1. WHETHER THE WRIT PETITION FILED BY THE PETITIONER UNDER

ARTICLE 32 OF THE CONSTITUTION OF REPUBLIC OF INDIANA IS
MAINTAINABLE?

It is most humbly submitted that the right to approach this Hon’ble Court in case of a
violation or threat to fundamental rights is itself a fundamental right enshrined in Art. 32.
Such right is an absolute right. It is submitted that to invoke the writ jurisdiction of the
Hon’ble Court it is not necessary that an actual violation of fundamental rights should take
place and even a threat of infringement of fundamental rights is sufficient. In the present case
there is violation of fundamental rights at large in the republic of Indiana.

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 RIGHTS
GUARANTEED UNDER PART III OF THE CONSTITUTION OF REPUBLIC OF
INDIANA?

It is humbly submitted before the Hon’ble Court that the Pehchan and Other Laws
(Amendment) Ordinance, 2019 and the Pehchan (Pricing of Authentication Services)
Regulations, 2019 enacted by the government of Indiana are unconstitutional as though the
Ordinance was passed by the legislature of the state, they are in violation of Part III of the
Constitution of India, which guarantees the people certain fundamental rights and therefore,
they are void, being in contravention with Art. 13(2) of the Constitution.

3. WHETHER THE PUBLIC ENTITIES HAVE THE RIGHT TO KEEP ANY

PERSONAL/SENSITIVE INFORMATION AND BIO-METRIC DATA OF CITIZENS
OF THE REPUBLIC OF INDIANA, WHAT HAPPEN IN CASE OF BREACH OR
LEAKAGE OF PERSONAL AND SENSITIVE INFORMATION OF CITIZEN OF
REPUBLIC OF INDIANA AND WHO WILL BE LIABLE FOR THAT?
it is humbly submitted to the republic court of Indiana that the public entity have the right to
keep any personal information and biometric data of the citizens and in case of the leakage of
the private information the entity violates the fundamental rights of the citizens such as Art.
14 and 21 which have been enshrined under the constitution of republic of Indiana and the

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state will be liable for the violation or leakage of the private Informstion according to Art. 12
of the constitution of republic court of Indiana.

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 PEHCHAN AND OTHER LAWS
(AMENDMENT) ORDINANCE, 2019?

It is humbly submitted before the hon’ble court that permitting the linking of existing
database 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 .If there is a
leakage of data it can harm a nation as well as an individual. The security of a state can’t be
compromised at all and there susceptible identity theft which can harm a individual
reputation ,business interest or Personal life.

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ADVANCED ARGUMENTS

1. Whether the Writ Petition filed by the Petitioner under Article 32 of the Constitution of
Republic of Indiana is maintainable?

It is most humbly submitted that the right to approach this Hon’ble Court in case of a
violation or threat to fundamental rights is itself a fundamental right1 enshrined in Art. 322 .
Such right is an absolute right3 . It is submitted that to invoke the writ jurisdiction of the
Hon’ble Court it is not necessary that an actual violation of fundamental rights should take
place and even a threat of infringement of fundamental rights is sufficient 4.The constitutional
courts, i.e., the Supreme Court and The High courts are the sentinels of justice and have been
vested with extraordinary powers of judicial review to ensure that the rights of citizens are
protected.5 Therefore writ petition filed by the petitioner under article 32 of the constitution
of Indiana is maintainable and article 32(1) guarantees the right to move the republic court,
by appropriate proceedings, for the enforcement of the fundamental rights enumerated in the
constitution.

1.1 THAT THE PETITION HAS THE LOCUS STANDI TO APPROACH THE
COURT

It is most humbly submitted that the present petitions have the locus standi to approach this
hon’ble court of law. When a breach of fundamental right is made in the petition, the
provisions of other remedies do not stand in the way of exercising power under Art. 32 of the
Constitution of India, as the same was held in the case of Coffee Board v. Jt. Commercial Tax
Officer.6 S.P.Gupta v. Union Of India 7 , where a legal wrong or legal injury is caused to a
person by reason of violation of any constitutional or legal right, any member of public can
maintain an application for an appropriate direction, order or writ in the High Court under
Art.226 and in case of breach of fundamental rights of such persons, in this court under
Art.32. In Janta Dal v. H.S.Chawdhary8 , dealing with the question of locus standi, vis-à-vis
PIL, SC observed that in contrast the strict rule of locus standi applicable to the private

1
Kochhuni v. State of Maharashtra, AIR 725 (1959).
2
Constitution of Republic of Indiana is para materia to Republic of India.
3
Prem Chand Garg v. Excise Commissioner, AIR 996 (1963).
4
Tata Iron and Steel Co. v. S.R. Sarkar, AIR 65 (1961).
5
Manohar Lal Sharma v Principal Secretary, (2014) 2 SCC 532 : LNINDORD 2017 SC 6549
6
AIR 870 (1971).
7
(1982) AIR 149 (SC)
8
1993 AIR 892 (SC).

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litigation and a broad rule is evolved which is the right of locus standi to any member of the
public acting bona fide and having sufficient interest in instituting an action. In Parmanand
Katara v. Union of India9 , SC entertained a petition filed by human rights activist merely on
the ground for general public interest. In the particular case there is leakage personal and
sensitive information10 of the republic of Indiana, which violates the part III of the
constitution. This case is at interest of Public at large which should be admissible before the
Hon’ble court.

1.2 THAT THERE IS A VIOLATION OF FUNDAMENTAL RIGHTS

ENSHRINED UNDER PART III OF THE CONSTITUTION

It is humbly submitted before the Hon’ble Court that the Pehchan Policy and the Pehchan
Act, 2014 enacted by the government of Indiana are unconstitutional as though the Act was
passed by the legislature of the state, they are in violation of Part III of the Constitution of
India, which guarantees the people certain fundamental rights and therefore, they are void,
being in contravention with Art. 13(2) of the Constitution. The main objective of Art. 13 is to
secure the paramountcy of the constitution especially with regards to fundamental rights. 11
The state is prohibited from making any law which takes away or abridges rights conferred
by Part III of the Constitution.12 If the state makes such a law then, it would be ‘still born law’
and void to the extent of such contravention. 13 Though post-constitutional laws inconsistent
with fundamental rights are void from their very inception yet a declaration by the court of
their validity will be necessary14. Therefore, the Pehchaan Act, 2014 enacted by the
government of Indiana is void, and a declaration of the same by the SC is necessary.

1.3 THAT THE ORDINANCE IS CHALLENGEABLE IN THE HON’BLE

COURT

It is humbly submitted before the Hon’ble court that the Pehchan and other laws
(Amendment) Ordinance 2019 is challengeable as same as others laws under article
32.15 The ordinance which are made under article 12316 which gives special power to
9
1989 AIR (SC)
10
Moot proposition Para 12 pg. 4
11
Renu v . District and Session Judge, Tis Hazari, AIR 2014 SC 2175
12
Art. 13(2), The Constitution of India, 1950
13
Deep Chand v. State of U.P., AIR 1959 SC 648
14
Md. Ishaq v. State, AIR 1961 All 532.
15
The constitution of Indiana 1950
16
The constitution of Indiana 1950

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the President to make a law but which has to be passed by both the house within 6
months. Ordinances are however framed by the executive body which is said to be a
single, unified entity. The President is the head of the executive body who promulgate
ordinances on the advice of the council of ministers. The most important requirement of
the promulgation of the ordinances is the ‘necessity to take the immediate action’. Then
there will be no difficulty in ascertaining the satisfaction of the President when there is
real need or necessity in promulgating the Ordinances17 . Under article 13(3) this is
law , this ordinance or law is challengeable in the court on which other laws are
challenged and president ordinances is not beyond the scope of judicial review. 18 One
of the essentials to be kept in mind while passing an ordinance is that the President
should be satisfied; that circumstances exist that requires immediate actions on part of
the President. The apex court has not yet defined ‘satisfaction of the President’ and
even whether the subjective satisfaction of the President can be questioned in the Court
of Law. To clearly clarify the said ambiguity, Indira Gandhi led Government passed the
38thConstitutional (Amendment) Act, 1975 which has expressly excluded the subjective
satisfaction of the President outside the purview of Judicial Review. Further in
44th(Amendment) Act, 1978 deleted this clause, holding that the power of President
could be challenged in the Court of Law if it is based on bad faith, corrupt motive or
had any mala fide intention.19 In the case of S.K.G.Sugar Ltd v. State of Bihar20, it was
held that promulgating of an Ordinance by the Governor is purely upon the Subjective
Satisfaction of him and he is the sole Judge to consider the necessity to issue the
Ordinance and “his satisfaction is not a justiciable matter”. the Power of making
Ordinances is a legislative action so the same grounds as related to the law making
should be challenged than challenging the executive or judicial grounds.21

17
https://blog.ipleaders.in/ordinance-making-power-critical-outlook/
18
A.K Roy v Union of India 1982.
19
https://blog.ipleaders.in/ordinance-making-power-critical-outlook/
20
AIR 1974 SC 1533: (1974)4 SCC 827; p.832
21
K. Nagaraj v State of Karnataka 1993 (4) SC 27

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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 RIGHTS
GUARANTEED UNDER PART III OF THE CONSTITUTION OF REPUBLIC OF
INDIANA?

It is humbly submitted before this Hon’ble Court that the Right to Privacy has been
recognized as a fundamental right and the ‘Pehchan and Other Laws (Amendment)
Ordinance, 2019 and Pehchan (Pricing of Pehchan Authentication Services) Regulations,
2019’ brought by the respondent is in violation of Arts. 14, 19 and 21 of the Constitution of
India.

2.1 Violation of the Right to Privacy

It is humbly submitted before the Hon’ble Court that right to Privacy is the basic inalienable
right of an individual22 concomitant of his right to exercise control over his personality and is
essential for his development as a human being. The liberty of an individual is a matter of
fundamental natural law, a private preserve and must be safeguarded from unnecessary
interference.23 Right to privacy has been held to be constitutionally protected fundamental
right.24 Right to privacy is vested within right to life and personal liberty under Art. 21 of
Constitution of Indiana.25 A citizen under this right has the right to protect and safeguard the
liberty of his own, his family, marriage, procreation, motherhood, childbearing and education
among other matters.26 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. 27
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
22
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081.
23
Gobind v. State of Madhya Pradesh and Ors., (1975) 2 SCC 148
24
Gobind v. State of Madhya Pradesh and Ors., (1975) 2 SCC 148; See also, R. Rajagopal v. State of Tamil
Nadu, (1994) 6 SCC 632; People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301; Kharak
Singh v. State of UP, AIR 1963 SC 1295; Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5
SCC 1, 119-120 , ¶ 312.
25
Kharak Singh v. State of UP, AIR 1963 SC 1295; See also, Gobind v. State of Madhya Pradesh, AIR 1975 SC
1378; PUCL v. Union of India, AIR 1991 SC 207.
26
Unni Krishnan v. State of A.P. (1964) 1 SCR 332.
27

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to all persons on account of being humans. 28 If we talk of right to privacy then it also contains
a broad scope in it like tapping of telephonic conversation, disclosure of dreadful disease 29,
subjecting to medical tests.30 Here in the present case, the information sought under Pehchan
Identity Scheme31 is very intimate and integral to one’s personality and hence making it
mandatory to provide basic and intimate information is unconstitutional and violative of
Fundamental Right to privacy.
Right to Privacy has been culled from Art. 21 of the Constitution of India, 32 as the concept of
privacy overlaps with that of liberty. 33Right to Privacy is an integral part of Right to life and
Personal Liberty,34 and it can be curtailed only in accordance with the “Procedure established
by Law”, as provided under Art. 21 of the Constitution of India. 35 The republic court in
Maneka Gandhi,36 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.

2.2 Violation of Article 19 of The Constitution of Indiana

It is humbly submitted before the Hon’ble Court that the Pehchan project violates the Right to
remain silent enunciated under Art. 19(1)(a) of the Constitution. The ambit of freedom of
speech and expression provided under Art. 19(1)(a) of the Constitution is very wide. 37 Right
to remain silent is included within the definition of freedom of speech and expression as has
been recognized by the SC in the case of Bijoe Emmanuel v. State of Kerala. 38 The right
includes by necessary implication, freedom not to listen and/or to remain silent. 39 Silence
postulates a realm of privacy. The privacy of the individual recognises an inviolable right to
determine how freedom shall be exercised. An individual may perceive that the best form of

28
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081.
29
Mr. X v. Hospital Z, AIR (1995) SC 95
30
Sharda v. Dharmpal, AIR (2003) SC 345
31
Moot Proposition ¶3
32
Mr. X v. Hospital Z, (1998) 8 SCC 296.
33
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).
34
Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1.
35
People’s Union for Civil Liberties v. Union of India, AIR 1991 SC 207
36
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
37
D. D. Basu Commentary on The Constitution of India, Vol. 2, 2078 (8th ed., Lexis Nexis Butterworth
Wadhwa Publications, Nagpur, 2008).
38
Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748; See also, P.A. Jacob v. Superintend of Police,
Kottayam, AIR 1993 Ker 1; Maruti Shripati Dubal vs. State of Maharashtra, (1986) 88 BOMLR 589.
39
Moulana Mufti Syed Md. Noorur v. State Of West Bengal and Ors., AIR 1999 Cal 15.

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expression is to remain silent.40 As such every citizen is entitled to exercise the right except
when restrictions are imposed on its exercise in accordance with Art. 19(2) of the
Constitution.41 In the present case, the Government has made Pehchan No. mandatory for
seeking benefits under different social welfare schemes of the government and also for
issuing PAN Cards.42 The state by making Pehchan No. mandatory for variety of schemes has
compelled the citizens to part with their demographic and biometric information in clear
violation of their right to remain silent. Further, there exists no reasonable ground to restrict
the right to remain silent of the people.

2.3 Violation of Article 14 of The Constitution

It is humbly submitted that Art. 14 provides for equality before the laws and equal protection
of the laws. Two tests have been provided by the republic court overtime, which any law
passed by the government is required to satisfy, in order to fulfil the requirements of Art. 14
of the Constitution, and the Pehchan scheme is unable to satisfy the requirements so laid
down.

2.3.1 Test of Reasonable Classification

While Art. 14 allows reasonable classification for the purposes of legislation it forbids any
sort of class legislation.43 The test of reasonable classification was laid down by republic
court of indiana in Budhan Chaudhary v. State of Bihar, 44 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.

40
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081 ¶ 169.
41
A.K. Gopalan v. State of Madras, AIR 1950 SC 27; See also, Collector of Malabar v. Erimal Ebrahim Hajee,
AIR 1957 SC 688.
42
Moot Proposition ¶6
43
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.
44
Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191

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Principle of Intelligible Differentia

The expression intelligible differentia means difference capable of being understood and
should be reasonable and not arbitrary.45 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

It is contended that the law can only make and set apart the classes according to the needs
and exigencies of the society.46 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.47 In the present case Government of Indiana collects the personal
information of the citizens including the biometric information for generating the pehchan
no. .

2.3.2 Test of Arbitrariness

The Pehchan and Other Laws (Amendment) Ordinance, 2019 and Pehchan (Pricing of
Pehchan Authentication Services) Regulations, 2019 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
Indiana. The government asking for personal information and biometric information is for
making Pehchan No. is in violation of article 21 of the constitution.

2.3.3 Act should be Just, Fair and Reasonable

The SC has held in Maneka Gandhi’s Case,48 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

45
M.P. Jain, Indian Constitutional Law, 876 (7th ed., Lexis-Nexis Butterworth Wadhwa Publications, Nagpur,
2016).
46
Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1.
47
M P Jain, Indian Constitutional Law, 917 (7th ed., Lexis-Nexis Butterworth Wadhwa Publications, Nagpur,
2016).
48
Maneka Gandhi v. Union of India, AIR 1978 SC 597

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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. In the present
case, according to the respondent it is necessary to introduce Pehchan No. mandatorily for the
people in the country to avail the welfare schemes successfully. The laws brought by the
government grossly violate the dignity of the people49by depriving them of their choice.

3. WHETHER THE PUBLIC ENTITTES HAVE THE RIGHT TO KEEP THE ANY
PERSONAL/SENSITIVE INFORMATION AND BIOMETRIC DATA OF CITIZENS
OF THE REPUBLIC OF INIDANA, WHAT HAPPENS IN CASE OF BREACH OR
LEAKAGE OF PERSONAL NAS SENSITIVE INFORMATION OF THE CITIZEN
OF THER EPUBLIC OF INDIANA AND WHO WILL BE LIABLE FOR THAT?

3.1 PUBLIC ENTITIES HAS THE RIGHT TO KEEP THE INFORMATION

It is humbly submitted to the Hon’ble Republic court of Indiana that public entities have the
right to keep the any personal information and biometric data of citizens of the republic of
indiana. According to the ITA, it allows for the interference of user privacy online by
defining broad standards of access to law enforcement and security agencies, and providing
the government with the power to determine what tools individuals can use to protect their
privacy. As per Section 6950 in The Information Technology Act, 2000 Power to issue
directions for interception or monitoring or decryption of any information through any
computer resource. -
(1) Where the Central Government or a State Government or any of its officers specially
authorised by the Central Government or the State Government, as the case may be, in this
behalf may, if satisfied that it is necessary or expedient to do in the interest of the sovereignty
or integrity of India, defence of India, security of the State, friendly relations with foreign
States or public order or for preventing incitement to the commission of any cognizable
offence relating to above or for investigation of any offence, it may, subject to the provisions
of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the
appropriate Government to intercept, monitor or decrypt or cause to be intercepted or
monitored or decrypted any information generated, transmitted, received or stored in any
computer resource.
49
Art. 21, The Constitution of India, 1950
50
It act, 2000.

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(2) The procedure and safeguards subject to which such interception or monitoring or
decryption may be carried out, shall be such as may be prescribed.
(3) The subscriber or intermediary or any person in-charge of the computer resource shall,
when called upon by any agency referred to in sub-section (1), extend all facilities and
technical assistance to-
(a) provide access to or secure access to the computer resource generating, transmitting,
receiving or storing such information; or
(b) intercept, monitor, or decrypt the information, as the case may be; or
(c) provide information stored in computer resource.
(4) The subscriber or intermediary or any person who fails to assist the agency referred to in
sub-section (3) shall be punished with imprisonment for a term which may extend to seven
years and shall also be liable to fine.
Here, as in the fact51 it is also mentioned that High Court of Arjuna and High Court of Karuna
held that there was no verification of authenticity of demographic data in the pehchan
database and the information entered in the pehchan identity cannot be treated as conclusive
proof of the same as it is unverified by any government agency.
So, by the aforementioned argument it is clear that the Public Entities have the right to keep
the personal information and biometric data of citizens of the republic court of Indiana.

3.2 IN CASE OF BREACH OR LEAKAGE OF PERSONAL AND SENSITIVE

INFROMATION

It is the humble submission to the Hon’ble republic court of Indiana that in case of the breach
of personal and sensitive information, persons fundamental rights are getting violated i.e.,
article 14 and 21..
In Art. 1452 it violates the test of reasonable classification. The test of reasonable
classification was laid down by republic court of indiana in Budhan Chaudhary v. State of
Bihar,53 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.

51
Moot proposition.
52
Constitution bare act
53
Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191

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The expression intelligible differentia means difference capable of being understood and
should be reasonable and not arbitrary.54 In the present case, the government seeks to profile
and classify people based on educational qualification, religion, etc., which is arbitrary and
unreasonable.
In Art. 21, Right to privacy has been held to be constitutionally protected fundamental right. 55
Right to privacy is vested within right to life and personal liberty under Art. 21 of
Constitution of Indiana.56 A citizen under this right has the right to protect and safeguard the
liberty of his own, his family, marriage, procreation, motherhood, childbearing and education
among other matters.57 Art. 21 takes all those aspects of life which go to make a person's life
meaningful and even State can’t violate it.58 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. 59
Here in the present case, the information sought under Pehchan Identity Scheme 60 is very
intimate and integral to one’s personality and hence making it mandatory to provide basic and
intimate information is unconstitutional and violative of Fundamental Right to privacy.

LIABLITY
The concept of the ‘state’ is defined by the constitution of the republic of Indiana under Art.
12. Definition In this part, unless the context otherwise requires, the State includes the
Government and Parliament of Indiana and the Government and the Legislature of each of
the States and all local or other authorities within the territory of Indiana or under the control
of the Government of Indiana.
The Pehchan Act, 2016 comes under the ambit of this Article 12 because the act comes under
the control of Government of Indiana. and its ordinance and regulation which allows the
54
M.P. Jain, Indian Constitutional Law, 876 (7th ed., Lexis-Nexis Butterworth Wadhwa Publications, Nagpur,
2016).
55
Gobind v. State of Madhya Pradesh and Ors., (1975) 2 SCC 148; See also, R. Rajagopal v. State of Tamil
Nadu, (1994) 6 SCC 632; People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301; Kharak
Singh v. State of UP, AIR 1963 SC 1295; Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5
SCC 1, 119-120 , ¶ 312.
56
Kharak Singh v. State of UP, AIR 1963 SC 1295; See also, Gobind v. State of Madhya Pradesh, AIR 1975 SC
1378; PUCL v. Union of India, AIR 1991 SC 207.
57
Unni Krishnan v. State of A.P. (1964) 1 SCR 332.
58

59
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081.
60
Moot Proposition ¶3

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private entities to access the sensitive information which leads to the data breach and leakage,
the government should be held liable.
Under Section 43A61 of the (Indian) Information Technology Act, 2000, a body corporate
who is possessing, dealing or handling any sensitive personal data or information, and is
negligent in implementing and maintaining reasonable security practices resulting in
wrongful loss or wrongful gain to any person, then such body corporate may be held liable to
pay damages to the person so affected. Under section 72A62 of the (Indian) Information
Technology Act, 2000, disclosure of information, knowingly and intentionally, without the
consent of the person concerned and in breach of the lawful contract has been also made
punishable.
As given in the fact63 that according to the pehchan and other law (Amnedmnet )
Ordinance,2019 and pehchan (pricing of pehchan Authentication services) Regulations,2019,
it allowed the private entity to access the personal data of the individuals and allowed private
entites to sub-work their responsibility to other private entities to make more profit and due to
this it results in leakage of personal and sensitive information of the citizen’s of the Republic
of Indiana.
So, as government gives the allowance to the private entities to indulge and access the private
informations the government should be held liable for the same.

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 PEHCHAN AND OTHER LAWS
(AMENDMENT) ORDINANCE, 2019?

It is humbly submitted before the hon’ble court that permitting the linking of existing
database 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 .

61
Infromation and Technology Act, 2000.
62
Ibid.
63
Moot Proposition.

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The Pehchan scheme of the government of Indiana is devoid of adequate security measures
to guarantee the security of data collected for the purpose of making Pehchaan No. . The
respondent is yet to bring substantive law for the protection of data. 64 Though, there are penal
provisions for offences relating to data leakage in the Pehchaan Act, but there are no security
measures in place to ensure the protection of data; thereby, giving rise to grave violation of
the privacy of the people as the large database of the Pehchaan Project remains largely
unprotected.

If permitted to link there will leakage of data at all which is a personal data of a person. As

Government has made Pehchan No. mandatory to avail different services 65. Furthermore, the
enrolling agencies are the private entities who further outsource the work to private vendors
in Indiana which means the data being collected reaches first in the hands of the private
vendors, which makes the data even more vulnerable to misuse and leakage, which is a grave
threat of a citizen’s privacy.66

4.1 Constant Survelliance

Liberty is among the core values of the Constitution of Indiana. Right to privacy which is
an integral part of Right to life ensures freedom from unwarranted state
intervention.67Usually, various data that is collected is stored across multiple sources, and
data required for a particular purpose is being taken from individuals at one time. This leads
to the creation of informational silos.68 For example, the data required taking a gas connection
shall be different from that of opening a bank account. But the Pehchan project of the
government, 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. 69 In other words, every
decision made by a person in Indian could be under state surveillance. This could potentially
lead to the denial of, and access to, many important social opportunities and other facilities

64
Draft personal Data protection bill 2018
65
Moot Proposition ¶ 6
66
Moot Proposition ¶ 12
67
Anna Jonsson Cornell, “Right To Privacy”, Max Planck Encyclopedia of Comparative Constitutional Law
(2015).
68
Usha Ramanthan, A Unique Identity Bill, Vol. 45(30) Economic and Political Weekly, 10-14 (2010).
69
Immanuel Kant, The Moral Law: Groundwork of the Metaphysic of Morals, 42 (Herbert James Paton eds.,
Psychology Press, London, UK, 2005).

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for a particular section of people, who could be discriminated against by the state, using the
information gathered from the Pehchan Project.70

4.2 PREVALENCE OF IDENTITY THEFT BY FOREIGN NATION OR ENEMY

Scheme of Pehchan Cards brought by the government is susceptible to identity theft. There
have been many instances in several countries of information being stolen from the
government database of national identification programmes and recreation of such
information by illegal means.

PRAYERS

Wherefore in light of the issues raised, arguments advanced, and authorities cited, it is prayed
that this Hon'ble Republic Court may be pleased to hold that:

1. the writ petition under article 32 is maintainable

70
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).

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2. the ‘Pehchan Scheme and The Pehchan Other Laws (Amendment) Ordinance,
2019 and Pehchan (Pricing of Pehchan Authentication Services) Regulations,
2019 ’ brought by the government of Indiana is unconstitutional and violates
fundamental rights of the people of Indiana.
3.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience. For This Act of Kindness, the Shall Forever
Pray.

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