ALIGARH MUSLIM UNIVERSITY

FACULTY OF LAW, ALIGARH

(2020-2021)

MOOT COURT PROJECT WORK

SUBMMITED BY:-

NAME- MD ZAID ARQAM

ROLL. NO. - 16BALLB100

EN. NO. - GH5748

SEMESTER – 10th

SECTION – B

SUBMMITED TO: -

PROF. HASMAT ALI KHAN

(PROFESSOR)

Written submission on behalf of the Respondent Page 1

 BEFORE THE HONORABLE SUPREME COURT OF INDIANAA

IN THE MATTER OF:

MLRC and Others ......................................................................... Petitioners

V.

UNION OF INDIANAA .............................................................. Respondent

PIL No. /2018

ON SUBMISSION TO THE HONORABLE SUPREME COURT OF

INDIANAA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIANAA

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

Written submission on behalf of the Respondent Page 2

 THE STATEMENT OF JURISDICTION

Article 32(1) in The Constitution Of India 1949-

Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the

enforcement of the rights conferred by this Part is guaranteed

Written submission on behalf of the Respondent Page 3

 STATEMENT OF FACTS

MLRC, A Legal Research Centre, has approached the Honourable Supreme Court of
Indianaa, through a Public Interest Petition, against the Union of Indianaa, contending that
the collection of the biometric data for the purpose of Janadhar Card, violates the Right to
privacy of the citizens. For obtaining the Janadhar Card, applicant has to provide his
biometric data. The Petitioner contends that this is a violation of Article 21 of the
Constitution of Indianaa which grants “right to Privacy” as a fundamental right, which is
evident in various decisions of the Apex Court and therefore the Janadhar Card should be
declared Unconstitutional.
In another petition filed by ACCESS, a NGO working on the issues regarding civil and
political rights of citizens, before Honourable Supreme Court, has contended that Janadhar
Card is made mandatory by Government to avail the benefits under various social welfare s.
The petitioner alleged that non availability of Janadhar Card denies the citizens the access to
the benefits under various social welfare s, which is clear violation of fundamental right to
equality as guaranteed by the Constitution of Indianaa. Secondly the NGO has contended that
by denying citizens access to also defeats the basic purpose of welfare state enshrined under
the Directive Principles of State policies given in Constitution of Indianaa.
The Honourable Supreme Court taking into consideration the gravity of the same, decided to
hear the matters jointly and the notice was issued to the Union of Indianaa in this regard.

Written submission on behalf of the Respondent Page 4

 STATEMENT OF ISSUES

1. Whether “right to privacy” is guaranteed in the Part III of Constitution

of Indianaa?
2. Whether the Janadhar Card is Unconstitutional and violates the
provisions of Part III of the Constitution of Indianaa?

Written submission on behalf of the Respondent Page 5

 THE ARGUMENTS ADVANCED

Issue 1- Whether “right to privacy” is guaranteed in the Part III of

Constitution of Indianaa?
Distinguishing an inalienable right to an object from the object itself emphasizes the notion of
inalienability. All human beings retain their inalienable rights (whatever their situation,
whatever their acts, whatever their guilt or innocence). The concept of natural inalienable
rights secures autonomy to human beings. But the autonomy is not absolute, for the simple
reason that, the concept of inalienable rights postulates that there are some rights which no
human being may alienate. While natural rights protect the right of the individual to choose
and preserve liberty, yet the autonomy of the individual is not absolute or total. As a
theoretical construct, it would otherwise be strictly possible to hire another person to kill
oneself or to sell oneself into slavery or servitude. Though these acts are autonomous, they
would be in violation of inalienable rights.

Yet a close reading of the decision in Gobind would indicate that the Court eventually did not
enter a specific finding on the existence of a right to privacy under the Constitution. The
Court indicated that if the Court does find that a particular right should be protected as a
fundamental privacy right, it could be overridden only subject to a compelling interest of the
State: “There can be no doubt that privacy-dignity claims deserve to be examined with care
and to be denied only when an important countervailing interest is shown to be superior. If
the Court does find that a claimed right is entitled to protection as a fundamental privacy
right, a law infringing it must satisfy the compelling State interest test. Then the question
would be whether a State interest is of such paramount importance as would justify an
infringement of the right.”

While emphasizing individual autonomy and the dangers of individual privacy being eroded
by new developments that “will make it possible to be heard in the street what is whispered in
the closet”, the Court had obvious concerns about adopting a broad definition of privacy
since the right of privacy “is not explicit in the Constitution”. Observing that the concept of
privacy overlaps with liberty, this Court noted thus : “Individual autonomy, perhaps the
central concern of any system of limited government, is protected in part under our
Constitution by explicit constitutional guarantees. In the application of the Constitution our
contemplation cannot only be of what has been but what may be. Time works changes and
brings into existence new conditions. Subtler and far reaching means of invading privacy will
make it possible to be heard in the street what is whispered in the closet. Yet, too broad a
definition of privacy raises serious questions about the propriety of judicial reliance on a right
that is not explicit in the Constitution. Of course, privacy primarily concerns the individual. It
therefore relates to and overlaps with the concept of liberty. The most serious advocate of
privacy must confess that there are serious problems of defining the essence and scope of the
right. Privacy interest in autonomy must also be placed in the context of other rights and
values.”

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“The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of
this country by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the
privacy of his home, his family, marriage, procreation, motherhood, child-bearing and
education among other matters. None can publish anything concerning the above matters
without his consent — whether truthful or otherwise and whether laudatory or critical. If he
does so, he would be violating the right to privacy of the person concerned and would be
liable in an action for damages. Position may, however, be different, if a person voluntarily
thrusts himself into controversy or voluntarily invites or raises a controversy. The rule
aforesaid is subject to the exception, that any publication concerning the aforesaid aspects
becomes unobjectionable if such publication is based upon public records including court
records. This is for the reason that once a matter becomes a matter of public record, the right
to privacy no longer subsists and it becomes a legitimate subject for comment by press and
media among others. We are, however, of the opinion that in the interests of decency [Article
19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a
sexual assault, kidnap, abduction or a like offence should not further be subjected to the
indignity of her name and the incident being publicized in press/media.

The Court read the decision in Malak Singh as reiterating the view taken earlier, on privacy
in Kharak Singh and Gobind. The Court proceeded to rely on the decision in Rajagopal. The
Court held that the right to privacy is not absolute and is subject to action lawfully taken to
prevent crime or disorder or to protect the health, morals and the rights and freedoms of
others. Public disclosure of even true facts, the Court held, may amount to invasion of the
right to privacy or the right to be let alone when a doctor breaches confidentiality. The Court
held that: “Disclosure of even true private facts has the tendency to disturb a person's
tranquility. It may generate many complexes in him and may even lead to psychological
problems. He may, thereafter, have a disturbed life all through. In the face of these
potentialities, and as already held by this Court in its various decisions referred to above, the
right of privacy is an essential component of the right to life envisaged by Article 21. The
right, however, is not absolute and may be lawfully restricted for the prevention of crime,
disorder or protection of health or morals or protection of rights and freedom of others.”

However, the disclosure that the appellant was HIV+ was held not to be violative of the right
to privacy of the appellant on the ground that the woman to whom he was to be married “was
saved in time by such disclosure and from the risk of being infected”. The denial of a claim
for compensation by the NCDRC was upheld.

In RamlilaMaidan Incident v Home Secretary, Union of India134 , Justice B S Chauhan in a

concurring judgment held that: “Right to privacy has been held to be a fundamental right of
the citizen being an integral part of Article 21 of the Constitution of India by this Court.
Illegitimate intrusion into privacy of a person is not permissible as right to privacy is implicit
in the right to life and liberty guaranteed under our Constitution. Such a right has been
extended even to woman of easy virtues as she has been held to be entitled to her right of
privacy. However, right of privacy may not be absolute and in exceptional circumstance
particularly surveillance in consonance with the statutory provisions may not violate such a
right.

Written submission on behalf of the Respondent Page 7

 No right is unbridled and so is it with privacy. We live in a society/ community. Hence,
restrictions arise from the interests of the community, state and from those of others. Thus, it
would be subject to certain restrictions which I will revert to later.

In Gobind’ case, the learned Judge, K.K.Mathew J. speaking for the Bench held and indeed
rightly in Para 28 as under: “28. The right to privacy in any event willnecessarily have to go
through a process of case-by-case development. Therefore, even assuming that the right to
personal liberty, the right to move freely throughout the
territory of India and the freedom of speech create an independent right of privacy as an
emanation from them which one can characterize as a fundamental right, we do not think
that the right is absolute.”

“Right to privacy” has multiple facets, and, therefore, the same has to
gothrough a process of case-to-case development as andwhen any citizen
raises his grievance complaining o infringement of his alleged right in
accordance withlaw.
During the times of the Constituent Assembly, the great intellectuals of the day sought to give
this brooding spirit a form, and sought to invoke her in a manner that they felt could be
understood, applied and interpreted – they drafted the Indian Constitution.

It has also to be borne in mind that a Constitution is not a gate but a road. Beneath the
drafting of a Constitution is the awareness that things do not stand still but move on, that life
of a progressive nation, as of an individual, is not static and stagnant but dynamic and
dashful. A Constitution must therefore contain ample provision for experiment and trial in the
task of administration.

State action that violates the fundamental right to privacy must contain at least four elements,
namely:

· “The action must be sanctioned by law;

· The proposed action must be necessary in a democratic society for a legitimate aim;

· The extent of such interference must be proportionate to the need for such interference;

· There must be procedural guarantees against abuse of such interference.”

Issue 2- Whether the Janadhar Card is Unconstitutional and violates the

provisions of Part III of the Constitution of Indianaa?

i. There is no absolute right of privacy.

However, these rights are not absolute or uncontrolled and are subject to reasonable
restrictions as necessary for the protection of general welfare. They can also be selectively
curtailed. The Supreme Court has ruled that all provisions of the Constitution, including

Written submission on behalf of the Respondent Page 8

fundamental rights can be amended. Thus the vague call by the petitioner of terming
Pehchaan Act as unconstitutional must not be considered, since the very ambit of any right,
be it a fundamental right, does not have absoluteness. In this case, Pehchaan Act is made
applicable by the government as a matter of reasonable restriction that can be put upon right
to privacy of an individual.

Janadhar Card is constitutionally sanctioned by law. It is constitutionally valid. The main aim
of Janadhar Card is to save the duplicity of identities. In addition to this, the policy was
meant to identify illegal immigrants in the country and to deport them to their respective
counties. This policy can play an important role in preventing the corruption happening in
PDS and other subsidy providing s of the government. In other words, the essence of this
policy is ‘zero tolerance for corruption’. This policy was passes by the Janadhar Card Act
2014.

That the act does not violate the right to privacy

Even as a matter of arguendo, if we presume that the right of privacy is being violated, then
too the government which is the representative of Indian citizens by enforcing the pechaan
act is not violating the right to privacy. And this can be well-of understood by going through
the depth of Article 21 of the constitution that talks in a facet about ‘social security’ of Indian
citizens. Thus by bringing this policy the government is ensuring the utmost important
fundamental right to the citizens that is article 21 of the constitution. The reasonable
restrictions are grounds which permit limitations to be placed on the exercise of speech and
expression and are contained under Article 19(2). These include, a) Security of State; b)
Friendly relations with foreign states; c) Public Order; d) Decency or morality; e) Contempt
of Court; f) Defamation; g) Incitement to an offence; and h) Sovereignty and integrity of
India. If a law does not fall within these grounds and abridges the right to freedom of speech
and expression then it is ultra vires and declared void.

In the recent case of Justice Puttuswamy, the nine judges Bench explained; state action that
violates the fundamental right to privacy must contain at least four elements, namely:

• “The action must be sanctioned by law;

• The proposed action must be necessary in a democratic society for a

legitimate aim;

Written submission on behalf of the Respondent Page 9

 • The extent of such interference must be proportionate to the need for such
interference;

• There must be procedural guarantees against abuse of such interference.”

ii. What Janadhar Card is all about?

Janadhar Card is a 12-digit unique identification number issued to Indian citizens by the
Central government. It is issued and managed by the Unique Identification Authority of India
(UIDAI). Janadhar Card is essentially an identification document issued by the UIDAI after
it records and verifies every resident Indian citizen’s details including biometric and
demographic data. Janadhar Card is not meant to replace existing identification documents
like PAN, passport, driving license etc. However, it can be used as a single identification
document. Banks, financial institutions and telecom companies can also use it as a Know-
Your-Customer (KYC) verification mode and maintain.

Safety and security of the citizens should be the first and foremost priority for any country.
The Government of Mandia has taken the steps in this regard introducing Janadhar Card for
eliminating all forms of terrorism by finishing off sleeping modules and local support base of
terrorists in the country. It was also contended that the scams and financial fraud and terror
finances have been very common. Hence, Janadhar Card policy will be very beneficial,
productive and helpful in order eliminate and curb the Hawala transactions and foreign
contributions to suspect NGOs. It will be a helpful instrument to introspect in terms of
making payments, salaries and other financial transactions online and linking them with the
Janadhar Card Schem esystem.

A Janadhar Card program was launched in 2009 with a main objective to give universal
identity to every resident Indian. However in the initial stages of enrolment people faced lot
of difficulties such as technical snags, incorrect data displayed etc. and also the importance of
A Janadhar Card was unclear. But many of the issues were resolved and people can now get
the card with much ease as its acceptance as a mandatory document for various initiatives has
been officially made. In addition to this it will help in reducing the corruption since every
individual carries only one unique number.

Written submission on behalf of the Respondent Page 10

Benefits of Janadhar Card

Listed below are the most important benefits of Janadhar Card and why it is must for every
Indian moving forward…

Janadhar Card based Direct Benefit Transfer (LPG Subsidy): The 12 digit individual
identification number on Aadhar card is used to get LPG subsidy amount directly in the bank
account. This DBTL is named as PAHAL. To get this benefit you need to visit your area’s
distributor and get Aadhar number linked to the 17 digit LPG consumer number. Although
now you can get direct benefit transfer by linking bank account to the LPG number. Read
more about PAHAL .

Jan DhanYojana: The guiness world record holder Pradhan Mantri Jan Dhan Yojana
(PMJDY) accepts Janadhar Card /number as the only document sufficient to open the bank
account. Although you open PMJDY account after producing other documents as well. The
benefits offered are RuPaycard, free zero balance savings account, life and accident insurance
and many others. Read more on how to open PMJDY account with no valid documents.

Passport in 10 days: This benefit of Janadhar Card will relieve you the most! If you have an
Janadhar Card , you can get passport in just 10 days. Under this format, police verification
will be done at a later date as opposed to the previous rule requiring police verification which
used to be time consuming. Also under the new government’s rule, if you need a passport,
Janadhar Card number is compulsory.

Digital Locker: Government of India has launched digital locker (DigiLocker) system for
everyone for storing all personal document on the government’s server. And sign-up process
for DigiLocker requires person to link his/her 12 digit Janadhar Card number. Check out
benefits of DigiLocker.

Voter Card Linking: Starting 9th March 2015, Janadhar Card UIDAI number would be
linked to the voter ID’s. This action is taken to eliminate bogus voters. Once an Janadhar
Card number is linked, it would become impossible for an multiple voter ID card holder to
make it’s illegal use, as registration requires voter card holder to

be physically present and produce Janadhar Card to the polling booth officer for linking.

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Monthly Pension: All the pensioners from select states will now have to register their
Janadhar Card number to their respective department in order to receive monthly pension.
This move was initiated as there have been fraudulent incidents as beneficiaries requesting
pension were found to be fake.

Provident Fund: Similar to pension, provident fund money will be given to the account holder
who’ve registered their Janadhar Card number with employee provident fund organization
(EPFO).

Opening new bank account: Janadhar Card letter provided by UIDAI is now acceptable by
banks as a valid proof to open bank account. In fact, it can serve as an address proof as well
provided address on Janadhar Card and address proof perfectly matches. i.e. no need to
produce bunch of documents to the banks for opening the account. Check out benefits of
linking Janadhar Card number and bank account.

Digital Life Certificate: Janadhar Card linked digital life certificate is another initiative which
was launched by Department of Electronics and IT. Named as

“JeevanPraman for Pensioners”, this system will end the process where pensioner had to be
physically present at Pension Disbursing Agency to avail pension. Instead all the details of
pensioner will be accessed digitally by the agency.

SEBI: It is now accepted as a proof of address by Securities and Exchange board of India for
investing in stock market. Till now, it was used by SEBI as identity proof.

Considering the increasing acceptance of Janadhar Card it is must for everyone to get it
issued. It is believed that the card will further be given more importance as more and more
government s are being launched requiring it as a mandatory document.

It will be considering these questions as will the highest constitutional courts of the
United States, the European Union and its members, South Africa, or post-European
Britain. A powerful court speaking for the world’s largest democracy on issues of
privacy, expressive rights, surveillance, identity control and the other similar matters
now coming to the fore in all societies will be immensely influential.

Written submission on behalf of the Respondent Page 12

 THE PRAYER FOR RELIEF

IN THE LIGHT OF THE ARGUMENTS ADVANCED, CASES AND AUTHORITIES

CITEDABOVE,THE RESPONDENT HUMBLY REQUESTS THE HON’BLE SUPREME
COURT OF MANDIA , TO REJECT THE PETITION, AND IN SO DOING, ADJUDGE AND
DECLARE THAT:

1. The Right To Privacy is not an absolute part of Article 21.

2. The Janadhar Card Project by the government is a viable aspiration for
the sake of Indianaa people’s ‘social security’.
3. The Janadhar Card is constitutionally valid.

AND PASS ANY OTHER ORDER, DIRECTION OR RELIEF THAT IT MAY DEEM FIT IN
THE BEST INTRESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.
FOR THIS ACT OF KINDNESS, THE RESPONDENT SHALL DUTY BOUND FOREVER
PRAYS.

SD/-

COUNSELS FOR RESPONDENT

Written submission on behalf of the Respondent Page 13