Writ of Mandamus

Drafting of Writs And Conveyance

SUBMITTED BY

SUDEEP PANDEY (ROLL NO.- R450215108)

B.A.LLB – B2

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 IN THE HIGH COURT OF DELHI

ORIGINAL JURISDICTION

CIVIL WRIT PETITION NO 123 OF 2017

IN THE MATTER OF

YASH GUPTA………………………………………. .………. Petitioners

Versus

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STATE (NCT OF DELHI)..……………………….…………. Respondents

WITH

W.P. (C) NO. 222/ 2016

INDEX

SYNOPSIS…………..………………………………..………Pg 3

List of Dates…………………………………………………..Pg 3

Question of Law………………………………….…………..Pg 5

Averments………………………………………..….………..Pg 5

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 Prayer………………………………………….……………..Pg 10

SYNOPSIS

Right to Privacy is the indispensable right of any Individual. The recognition of this right as a
fundamental right is must and thus cannot be overlooked. Although there were many
Judgments Related to Right to Privacy both with respect to inclusion and exclusion it from
the scope of Fundamental Right. There were two judgements in the past which created a
divergence opinion on whether the right to privacy is a fundamental right. There were
Judgements which were about the Right to Privacy is a fundamental Right but were not
applied as there were given by less judges bench as compared to other 2 judgements. Yash
Gupta, Petitioner has approached apex court to challenge the Act of Legislature as making
Aadhar(Delhi Identity) Act as a Finance Act pleading that the scheme should be scrapped as
it violates the privacy of a person. Present Petition is filed to check the act of the Legislature
and to remove the confusion related to the Right to Privacy with respect to the Aadhar card.
As the Biometrics used in the aadhar card is can be the breach of Privacy of the Person.

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Linking of Aadhar Card with several important departments such as with telecom
departments, in Banks, in case of Schools.

LIST OF DATES

5 August, 2014 - Act passed by the State Legislature named Aadhar(Delhi Identity) Act
(hereinafter called as Aadhar Act) as Finance Act.

16 August, 2014 – Bhawar Jashnani, filed PIL in High Court of Delhi to invalidate the State
Legislature Act for passing Aadhar Act(Delhi Identity) as Finance Bill. It violated Article 110
of the Constitution.

25th August, 2014 - Court issued interim order on the Act

10th October, 2014 –Delhi High Court made the use of Aadhar Identity Card (hereinafter
called as aadhar card) as purely Voluntary.

18th Oct. 2014 - In a press release, reportedly issued by the Police Commissioner on 18th
October it was said that Aadhaar Identity card has been made mandatory to be carried
alongside other relevant documents for people driving any vehicle in Delhi

5th December 2014 - There were the reports of Mayur Vihar Police Station that the local
authorities has made the scheme of AADHAR IDENTITY Compulsory for All.

10th December 2014 – High Court ordered such local authorities not to made any aadhar
Identity compulsory atleast now.

14th January 2015 - Agitation by the social workers as related to Aadhar card, containing all
the details of the individual. Thus Breach of Right to Privacy.

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 IN THE HIGH COURT OF DELHI

ORIGINAL JURISDICTION

CIVIL WRIT PETITION NO 123 OF 2016

IN THE MATTER OF

YASH GUPTA………………………………………. .………. Petitioners

Versus

STATE (NCT OF DELHI)………...…………………………. Respondents

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 WITH

W.P. (C) NO. 222/ 2016

PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR

ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA.

TO,

Hon’ble the Chief Justice and His Lordship’s Companion Justice of the High Court of
Delhi. The Humble petition of the Petitioner abovenamed.

MOST RESPECTFULLY SHOWETH:

(1) That the present petition is filed in the Public Interest under Article 226 of the
Constitution of India for considering the constitutional validity to the Aadhaar card
scheme of the Delhi government and whether this scheme violate the Right to Privacy
of individual.
(2) That on order dated 5 August, 2014 the government of India had introduced the
Aadhaar card scheme as per which the Government of Delhi will collect and compiles
both demographic and biometric data of the residence of this country, i.e. India to be
used for various purposes.
(3) That earlier this petition was before the three judge bench of this court but now a nine
judge bench of this court assembled to determine this question.

QUESTION OF LAW

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That this petition raises several substantial questions of law of constitutional and public
importance as the concern the protection of fundamental rights, encompassing human dignity,
privacy and personhood, which may be summarized as follows:

(A) Whether the Aadhar Act passed by the legislature is Constitutionally valid or not also
Scheme of Government introducing the Aadhaar Card Scheme is constitutionality
valid and whether it violates Right to Privy of Residence of this country as it contain
collection and compilation of both demographic and biometric data.
(B) Whether our Constitution Protects Privacy as an elemental principal and whether the
privacy is include under part III of the constitution as a Fundamental Right.

AVERMENTS

That it might be broadly necessary to determine the nature and content of privacy in order to
consider the extent of its constitutional protection. As in the case of ‘life’ under Article 21, a
precise definition of the term ‘privacy’ may not be possible.

(1) That the existence of zones of privacy is felt instinctively by all civilized people,
without exception. The best evidence for this proposition lies in the panoply of
activities through which we all express claims to privacy in our daily lives. We lock
our doors, clothe our bodies and set passwords to our computers and phones to signal
that we intend for our places, persons and virtual lives to be private. An early case in
the Supreme Court of Georgia in the United States describes the natural and
instinctive recognition of the need for privacy in the following terms:

“The right of privacy has its foundation in the instincts of nature. It is recognized
intuitively, consciousness being the witness that can be called to establish its
existence. Any person whose intellect is in a normal condition recognizes at once that
as to each individual member of society there are matters private and there are matters
public so far as the individual is concerned. Each individual as instinctively resents
any encroachment by the public upon his rights which are of a private nature as he
does the withdrawal of those of his rights which are of a public nature”.

(2) That ‘Privacy’ is “the condition or state of being free from public attention to
intrusion into or interference with one's acts or decisions”. The right to be in this
condition has been described as ‘the right to be let alone’. What seems to be essential
to privacy is the power to seclude oneself and keep others from intruding it in any

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 way. These intrusions may be physical or visual, and may take any of several forms
including peeping over one's shoulder to eavesdropping directly or through
instruments, devices or technological aids.

(3) That every individual is entitled to perform his actions in private. In other words, one
is entitled to be in a state of repose and to work without being disturbed, or otherwise
observed or spied upon. The entitlement to such a condition is not confined only to
intimate spaces such as the bedroom or the washroom but goes with a person
wherever he is, even in a public place.

(4) That privacy, that is to say, the condition arrived at after excluding other persons, is a
basic pre-requisite for exercising the liberty and the freedom to perform that activity.
The inability to create a condition of selective seclusion virtually denies an individual
the freedom to exercise that particular liberty or freedom necessary to do that activity.

(5) That a Bench of three judges of this Court, while considering the constitutional
challenge to the Aadhaar card scheme of the Delhi government noted in its order,
dated 5th August 2014, that the norms for and compilation of demographic biometric
data by government was questioned on the ground that it violates the right to privacy.
That during the argument of that case the Advocate General urged that the existence
of a fundamental right of privacy is in doubt in view of two decisions: the first - M P
Sharma v. Satish Chandra, District Magistrate, Delhi, which was rendered by a Bench
of eight judges and the second was in the case of Kharak Singh v. State of Uttar
Pradesh, which was rendered by a Bench of six judges. Each of these decisions, in the
submission of the Advocate General, contained observations that the Indian
Constitution does not specifically protect the right to privacy. It is submitted that M P
Sharma and Kharak Singh were founded on principles expounded in A K
Gopalan v. State of Madras., which construed each provision contained in the Chapter
on fundamental rights as embodying a distinct protection, was held not to be good law
by an eleven-judge Bench in R.C Cooper v. Union of India. Hence the petitioners
submitted that the basis of the two earlier decisions is not valid. Moreover, it was also
urged that in the seven-judge Bench decision in Maneka Gandhi v. Union of India, the
minority judgment of Justice Subba Rao in Kharak Singh was specifically approved
of and the decision of the majority was overruled.

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(6) That while addressing these challenges, the Bench of three judges of this Court took
note of several decisions of this Court in which the right to privacy has been held to
be a constitutionally protected fundamental right. Those decisions
include Gobind v. State of Madhya Pradesh, R Rajagopal v. State of Tamil Nadu,
and People's Union for Civil Liberties v. Union of India.

(7) That the question of whether Article 21 encompasses a fundamental right to privacy
did not fall for consideration before the 8 Judges in the M.P. Sharma Court. Rather,
the question was whether an improper search and seizure operation undertaken
against a company and its directors would violate the constitutional bar against
testimonial compulsion contained in Article 20(3) of the Constitution. This Court held
that such a search did not violate Article 20(3). Its reasoning proceeded on the footing
that the absence of a fundamental right to privacy analogous to the Fourth
Amendment to the United States’ constitution in our own constitution suggested that
the Constituent Assembly chose not to subject laws providing for search and seizure
to constitutional limitations.

(8) That M.P. Sharma is unconvincing not only because it arrived at its conclusion
without enquiry into whether a privacy right could exist in our Constitution on an
independent footing or not, but because it wrongly took the United States Fourth
Amendment - which in itself is no more than a limited protection against unlawful
surveillance - to be a comprehensive constitutional guarantee of privacy in that
jurisdiction. Neither does the 4:2 majorities in Kharak Singh v. State of Uttar Pradesh
furnish a basis for the proposition that no constitutional right to privacy exists.

(9) That, nothing in M.P. Sharma and Kharak Singh supports the conclusion that there is
no fundamental right to privacy in our Constitution. These two decisions and their
inconclusiveness on the question before the Court today have been discussed in great
detail in the opinions of Chelameswar J., Nariman J., and Chandrachud J., and they
agree with their conclusion in this regard. To the extent that stray observations taken
out of their context may suggest otherwise, the shift in our understanding of the nature
and location of various fundamental rights in Part III brought about by R.C.
Cooper and Maneka Gandhi has removed the foundations of M.P. Sharmaand Kharak
Singh.

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(10) That the judgments contained in M.P. Sharma and Kharak Singh v. State of U.P.
which was by a Bench of 6 learned Judges, should be overruled as they do not reflect
the correct position in law. In any case, both judgments have been overtaken by R.C.
Cooper v. Union of India, (1970) 1 SCC 248, and Maneka Gandhi v. Union of
India, (1978) 1 SCC 248, and therefore require a revisit at our end.

(11) That the right to privacy is very much a fundamental right which is co-terminus with
the liberty and dignity of the individual. This right is found in Articles 14, 19, 20, 21
and 25 when read with the Preamble of the Constitution. Further, several international
covenants have stated that the right to privacy is fundamental to the development of
the human personality and that these international covenants need to be read into the
fundamental rights chapter of the Constitution. Also, the right to privacy should be
evolved on a case to case basis, and being a fundamental human right should only
yield to State action if such State action is compelling, necessary and in public
interest. That this Court also pronounce upon the fact that the right to privacy is an
inalienable natural right which is not conferred by the Constitution but only
recognized as such.

(12) That the constitutional right to privacy very much exists in Part III of the
Constitution.

(13) That in a case that it is found that a claim for privacy is protected by Article 21 of the
Constitution, the test should be following:

a. That the infringement should be by legislation.

b. That the legislation should be in public interest.

c. That the legislation should be reasonable and have nexus with the public
interest.

d. That the State would be entitled to adopt that measure which would most
efficiently achieve the objective without being excessive.

e. That if apart from Article 21, the legislation infringes any other specified
Fundamental Right then it must stand the test in relation to that specified
Fundamental Right.

f. That presumption of validity would attach to the legislations.”

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 (14) That Right to Privacy is also associated with Right to Dignity under Article 21 of the
Constitution.

That the present petitioner has not filed any other petition in any High Court or the
Supreme Court of India on the subject matter of the present petition.

PRAYER

In light of the above facts and circumstances, it is humbly prayed before this Hon’ble Court:

(i) To declare the right to privacy as a separate fundamental right under Article 21 of the
Constitution of India.
(ii) To declare Aadhar (Delhi Identity) Act as Unconstitutional as Voilative of Article 110
of Constitution.
(iii) Government aadhaar card scheme as unconstitutional, as being violative of right to
privacy of resident of India.

Any other relief that this Hon’ble Court may be pleased to grant in the interests of Justice,
Equity and Good Conscience. All of which is respectfully submitted.

For which act of kindness, the petitioner shall be in duty bound forever.

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 FILED BY:

PETITIONER-IN-PERSON

DRAWN:

FILED ON:

IN THE COURT OF HON’BLE HIGH COURT OF DELHI

Petition No. 123 of 2016

Yash Gupta S/o D.K Gupta a/a 20 years r/o 132/2 Bhudutt Colony,
Delhi…...……………………………………………………………..Petitioners
Versus
State (NCT of Delhi) ………………………………………........….Respondents

Affidavit of Yash Gupta S/o D.K Gupta a/a 20 years r/o 132/2 Bhudutt Colony, Delhi
……………………………………………..……………………………...……...….Deponent

I the deponent do hereby take an oath and state as under:-

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 1) That all the facts admitted, denied or stated are true and are not written in the affidavit
but to be read as same written in Petition.

2) That the relief prayed by Petitioner is liable to be claimed.

Signature (Deponent)

I deponent verifies on the oath that the content of paragraph no 1-2 of the affidavit is true to
my personal knowledge. I have verified and signed this affidavit on 21st day of March 2016
in the Court Compound of Delhi High Court.

Signature (Deponent)

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