Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
TEAM
C 07
TEAM CODE
SMC-017
1ST PROF. N. R. MADHAVA MENON SAARC MOOTING COMPETITION, 2016
India Round
9th to 10th January, 2016
Versus
Union of Indistan
Respondent
Table of Contents.2
List of Abbreviation.4
List of Authorities5
Cases Referred.........................................5
Books Referred6
Legal Databases...7
Lexicons...7
Legislations..8
Conventions.8
Statement of Jurisdiction..9
Statement of Facts..10
Issues Presented.12
Summary of Pleading.13
Detailed Pleadings.....................................14
I.
II.
Prayer.29
Regd.........Registered
Co...Company
Edn/Ed..Edition
ER...English Reporter
Anr.Another
Ors.Others
Etc.Etcetera
Vol.........................................................................................................................Volume
SC....Supreme Court
Id. ...Ibid
Ltd.........Limited
No....Number
Pg./p..Page
.....................................................................................................................Paragraph
Honble.............................................................................................................Honourable
u/s...Under Section
UOI.Union of India
CJ.....................................................................................................................Chief Justice
UID............................................................................................................Unique Identification
14, 15, 16
15
15
16
16
16
16
16
16
16
17
17
M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300
17
18
18
18
19
20
20
20
20
Ram Jethmalani and Others v. Union of India and Others, (2011) 8 SCC 1
19
22
1. Basu, Durga Das, Shorter Constitution Of India 396 (14th ed., 2012)
2. Row, Sanjiva, Hand Book of Indian Copyright Act, 1957 (6th ed., 2014)
3. Aggrawal, J.P., Pleadings and Precedents in India (3rd ed., 2012)
4. Shukla, V.N. , Constitution of India (12th Ed., 2014)
5. Jain, M.P., Indian Constitutional Law (7th Ed. 2014)
6. Volumes I and II Basu, Durga Das, Commentary on the Constitution of India (8th Ed.,
2012)
7. Prasad, Rajendra, Law of Social Status, 5th Ed. 1998, Hindu Law House.
8. Seervai, H.M., Constitutional law of India, 4th Ed. 2002, Volume 2, Universal Book
Traders.
9. Joga Rao, S.V., Computer Contracts And Information Technology Law 970 (Wadhwa &
Nagpur) (2003).
1. Jean Slemmons Stratford & Juri Stratford, Data Protection and Privacy in the United
States and Europe, Paper presented at the IASSIST Conference, May 21, 1998, at Yale
University, New Haven, Connecticut.
2. Robert Aldrich, Privacy Protection Law in the United States, (NTIA Report 82-98) in
U.S. Congress. House. Committee on Government Operations. Oversight of the Privacy
Census
Act
and
constitutional
rights
(Dec.
28,
2015),
http://www.toxicswatch.org/2014/06/biometric-npr-makes-indians-worse-than.html.
6. Forty-Second Report Standing Committee On Finance (2011-2012).
CONVENTIONS
STATEMENT OF JURISDICTION
The Petitioners has approached the Honble Supreme Court of Indistan under Article 137 with
reference to 145(3) of Constitution of Indistan.
The matter has been referred by the division bench to this Honble Bench of Supreme Court of
Indistan.
10
STATEMENT OF FACTS
1. The Govt. of Indistan based on recommendations of various expert panels decided to
issue unique identification numbers to such individuals to ensure that the benefits of all
Government sponsored schemes and measures reach to right person and not misused.
3. The Govt. of Indistan constituted the Unique Identification Authority of Indistan (UIDAI)
in January, 2010, through an executive order. A noted activist and anthropologists filed a
PIL titled as Mr.X vs. Union of Indistan invoking the writ jurisdiction of Supreme Court
of Indistan challenging the manner in which the Bill has been passed in the Upper House
of the Parliament inspite of Standing Committee rejecting the Bill in its entirety in
present form.
4. By the year 2014, the UIDAI claim to have issued unique identification number to 80%
of its target population. Fearing the misuse of data at the hand of Govt. agencies and its
leakage to private corporations, agencies one of the distinguished members of the
Supreme Court Bar filed another PIL titled as Mr. Y vs. Union of Indistan questioning
the linking and availability of social security schemes to the Unique identification
number.
11
5. In light of the legal proposition as laid down by the Hon'ble Supreme Court, a local NGO
has also questioned the legality of UID card vis- a vis issuance of the same to the illegal
migrants based on residence criteria by way of a Writ Petition in the High Court of
United Province.
6. Both the PILs have been clubbed together by the Supreme Court of Indistan and it also
transferred the Writ Petition pending before the High Court of United Province in
exercise of power conferred under Article 139-A of the Constitution of Indistan. The
Division Bench of the Supreme Court fixed the date of hearing on 18th August 2015.
7. The Division Bench of the Supreme Court prima facie opined that 'a substantial question
of law' has thus arisen and passed the following reference order:-Therefore, in our
opinion to give a quietus to the kind of controversy raised in this batch of cases once for
all, it is better that the ratio decidendi of M.P. Sharma (supra) is scrutinized and the
jurisprudential correctness of the subsequent decisions of this Court where the right to
privacy is either asserted or referred be examined and authoritatively decided by a Bench
of appropriate strength.
8. A bench of 'appropriate strength' has been constituted by the Chief Justice of Indistan to
consider all the above issues raised in the moot proposition and the final hearing is
scheduled to take place on 9th -10th January 2016.
12
ISSUES PRESENTED
ISSUE I
Whether there is any right to privacy guaranteed under our Constitution?
Is Right to Privacy a fundamental right?
Whether collection of data and biometrics under the UID scheme violates it?
ISSUE II
Whether UID Scheme has any legal basis?
Whether the manner of passing National Identification of Indistan Bill, 2010 is
against the constitutional convention?
Whether UID Scheme is helping illegal migrants?
13
ISSUE I:
It is most respectfully submitted before the Honble Court that privacy rights has been developed
though cases to protect the interest of the people. It is contented that the constitution of this
country has been respected for upholding the fundamental rights of the citizens; the right to
privacy though not expressly mentioned in the constitution holds an implied value in this regard
and is well within the ambit of Art. 21 of the constitution which guarantees that no person shall
be deprived of his personal life or liberty. The expression personal life and liberty in Art. 21
is comprehensive enough to include privacy also1 which is necessary for an individual to live a
dignified life.
ISSUE II:
It is humbly submitted before the Honble court that the authority in question i.e. UIDAI
Aadhaar is totally based on an executive order which imposes a restriction on individuals
fundamental human and natural right, right to privacy. Then executive order issued for
establishment UIDAI is void and contradictory to supreme court judgment .So it is having no
known valid force of law as standing committee on finance has also raised questions regarding
the nature of establishment of UIDAI without getting sanction from legislature. Moreover it is to
be noted here that there are design faults in UIDAI and they could be categorized as a) Working
in absence of statutory backup b) Issuing the cards to residents which is proved as a boon for
illegal immigrants.
1
Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, 38 (per SUBBA RAO, J.).
14
I.
The Counsel for the petitioners most humbly submits before this honorable court that the
constitution of this country has been respected for upholding the fundamental rights of the
citizens, the right to privacy though not expressly mentioned in the constitution holds an implied
value in this regard and is well within the ambit of Art. 21 of the constitution which guarantees
that no person shall be deprived of his personal life or liberty. The expression personal life
and liberty in Art. 21 is comprehensive enough to include privacy also 2 which is necessary for
an individual to live a dignified life The issue in hand deals with the question of existence of the
fundamental right to privacy in the ambit of Indian Constitution here it would be appropriate to
define privacy, privacy has been derived from the Latin word: privatus meaning thereby
separated from rest. Moreover the concept of privacy rests on the promise that a certain
private sphere of individual liberty will be kept largely beyond the reach of government3 .
[I.1]
the Honble Court that privacy rights has been developed though cases to protect the interest of
the people. Even this court in its recent judgment upon this matter has said - In early days the
scope of the guarantee provided by these rights was considered to be very narrow. Individuals
could only claim limited protection against the state4. This position has changed when the
Id.
Thornburgh v. American College of Obstetricians & Gynecologists, 476 US 747, 772 (1986).
15
This right was laid down in the Fourteenth Amendment of US Constitution, as was
confirmed in Olmstead v. United States8 wherein dissenting judge, Brandeis, J., defined privacy
as "the right to be left alone". It was in Griswold v. Connecticut9 that, for the first time, general
constitutional right to privacy, free of the Fourth and Fifth Amendments was established. In our
country too, the word personal liberty is construed in a liberal form to include the right to
privacy; here also it has been termed as right to be let alone10. It is a part of dignity which has
been declared as a non-negotiable `constitutional right flowing from the spirit of constitution and
explicitly guaranteed under right to life & personal liberty in article 2111.
R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, 10, 16 (per B.P. REDDY, J.).
Supra 2
Kesavananda Bharti Sripadagalvaru &Anr. v. State of Kerala & Ors., AIR 1973 SC 1461.
10
Supra 5
11
16
Privacy Jurisprudence from the Past Cases It is to be considered that the respondents
have placed strong reliance over the precedential value of this courts judgment in M.P Sharma
& others. v. Satish Chandra & others19 and Kharak Singh v. State of U.P. &others20where it
12
13
Supra 10
14
(1997) 1 SCC 30
15
In pertinent part the Supreme Court held the following: The right to privacy has since been widely accepted as
implied in our Constitution, in other cases, namely, PUCL v. Union of India, (1997) 1 SCC 301; Mr. X v. Hospital
'Z', (1998) 8 SCC 296; PUCL v. Union of India, (2003) 4 SCC 399; Sharda v. Dharmpal, (2003) 4 SCC 4931.
16
17
18
19
20
Supra 6.
17
21
22
23
Venkatesh Nayak, Indian Constituion Was Written Up, Enforced Without Explicit Recognition Of Individuals
Privacy As Fundamental Right, publ., Dec 28, 2015
24
25
18
Recent legislative trends indicate a wider acceptance of the right with the passing of the
Information Technology Amendment Act 2008, and Right to Information Act 200529 the latter
making exceptions to the powers granted to citizens with regard to safeguarding the right to
privacy of individuals. Further, the tenor in which the legislature perceive the right may be
observed by examining the explanatory memorandum30 of The Telecom Unsolicited Commercial
Communications Regulation, 2007 which mentions the right to privacy of consumers as being a
determinative factor for the passing of the Regulation by the Govt. of Indias international
26
27
28
29
Right to Information Act 2005 ,22 of 2015. 8 (1) (j) (2005) provides that there shall be no obligation to give any
citizen information the disclosure of which would cause unwarranted invasion of the privacy of the individual unless
the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied
that the large public interest justifies the disclosure of such information).
30
Explanatory Memorandum - The Telecom Unsolicited Commercial Communications Regulation 2007, (Last
visited on 28 December 2015) ,http://www.trai.gov.in/trai/upload/Regulations/65/Regulation5june07.pdf
19
The implementation of the UIDAI has breached the right to privacy of the citizens
It is most respectfully submitted before the Honble bench that the above arguments have
established beyond doubt that the right to privacy is well within the ambit of art. 21. The
31
International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at
52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.
32
Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).
33
S.V. Joga Rao, Computer Contracts And Information Technology Law 970 (Wadhwa & Nagpur) (2003).
20
34
(2011) 8 SCC 1
35
Ibid
36
5 U.S.C. 552a
37
Jean Slemmons Stratford & Juri Stratford, Data Protection and Privacy in the United States and Europe, Paper
presented at the IASSIST Conference, May 21, 1998, at Yale University, New Haven, Connecticut.
21
38
Robert Aldrich, Privacy Protection Law in the United States, (NTIA Report 82-98) in U.S. Congress. House.
Committee on Government Operations. Oversight of the Privacy Act of 1974: Hearings. 98th Congress, 1st Session,
7-8 June 1983, 489 (Y4.G74/7:P93/11/974).
22
39
S. Bhushan, The Uid Project: The 1984 Of Our Times, NALSAR L.J 13(2013).
40
Shyam Divan, The Aadhaar trap: Why you should be really, really worried, 7th NLSIR Symposium at National
Law School, Bangalore, Dec. 28, 2015.
23
41
Gopal Krishna, Biometric NPR makes Indians worse than prisoners, violates Citizenship Act, Census Act and
constitutional rights , (Dec. 28, 2015), http://www.toxicswatch.org/2014/06/biometric-npr-makes-indians-worsethan.html.
24
Limits of Executive Power While the executive power of the Union, and of the
States, is co-extensive with the legislative power of the Union and the States, this is a provision
that sets out the limits of the power. These are not provisions that are meant to make Parliament,
or the legislatures, redundant. While executive power cannot extend beyond the legislative power
of the Union and the States, Parliament and the legislatures can, and routinely do, set out the
terms on which the executive is to function. This is also how 'delegated legislation' or
'subordinate legislation' has to be within the extent of the 'parent statute'. It is also to be
considered that even the standing committee has recommended that the Government to
reconsider and review the UID scheme was also the proposals contained in the Bill in all its
ramifications and bring forth a fresh legislation before Parliament42. Supreme Court in year
1961 in a landmark case related to non-validity of executive order Bishan Dass vs. State Of
Punjab43 observed that restriction on a fundamental right can be imposed only through a statue,
42
43
25
It is most respectfully submitted before the Honble that the upper house of the
parliament passed the bill without even considering and in total contravention of the
recommendation made by the standing committee. It is to be considered here that the rule 331 E
of the Rules of Procedure and Conduct of Business in Lok Sabha empowers the standing
committee to examine the issue and provide the report. It is true that the Parliament is not bind
by the report of the standing committee but rule 331 N categorically states that the report shall
have persuasive value and shall be treated as considered advice, but in the present situation the
upper house of the parliament ignored the recommendations in toto44. This is a clear indication
that to pass its ambitious project the government has even went on to take measures in
contravention of the rules.
[II.1.iii]
It is to be noted here that there are design faults in UIDAI and they could be
does not possess any documentary proof of identity or proof of address can obtain an aadhaar
44
26
46
Ibid at Pg.31 2
27
47
Ibid at Pg.31 4
28
Wherefore, in the light of the questions raised, arguments advanced and authorities cited, it is
most humbly prayed and implored before the Honble Supreme Court of Indistan that it may be
pleased to hold, adjudge declare and
(i)Pass such an order that Right to Privacy is a Fundamental Right and UID Scheme is
breaching our Fundamental Right to Privacy
Also,
(ii) Pass an order that UIDAI Scheme has no legal basis whether in terms of Executive Order
or Illegal Immigrants.
And,
(iii) Also, pass further orders as the Honble Supreme Court may deem fit and proper in the
facts and circumstances of the case.
29