Memorial On Behalf of Respondent PDF

9TH FYLC- RANKA NATIONAL MOOT COURT COMPETITION, 2019
TC: 10
9TH FYLC- RANKA NATIONAL MOOT COURT COMPETITION, 2019.
BEFORE THE HON’BLE REPUBLIC COURT OF INDIANA
WRIT PETITION
[UNDER ARTICLE 32 OF CONSTITUTION OF INDIANA]
JAGRUK LAW STUDENTS ASSOCIATION & ORS.
…(PETITIONER)
V.
REPUBLIC OF INDIANA & ORS.
…(RESPONDENT)
SUBMISSION BEFORE THE HONOURABLE CHIEF JUSTICE AND HIS
COMPANION JUSTICES OF THE REPUBLIC COURT
MEMORIAL ON BEHALF OF THE RESPONDENT
MEMORIAL ON BEHALF OF THE RESPONDENT I

9TH FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2019
INDEX
LIST OF ABBREVIATIONS..…………………………………………………………..…IV
INDEX OF AUTHORITIES………………………………………………….……….V-VIII
STATEMENT OF JURISDICTION………………………………………………………IX
SYNOPSIS OF FACTS…….……………………………………………………………......X
ISSUES RAISED…………………………………………………………………………..XII
SUMMARY OF ARGUMENTS………………………………………………..… XIII-XIV
ARGUMENTS ADVANCED………………………………………………………………1
[1] That the Writ Petition filed by the Petitioner under article 32 of the constitution of Republic
of Indiana is not maintainable ……………….…………………………………………….......1
[1.1] That the matter does not involve substantive question of law as it is not of general
Public Importance…………….………………………………………………………..…...1
[1.2] That the Writ of Mandamus is not maintainable in the present writ petition…..…........2
[1.3] That there is no violation of Fundamental Rights………………………….………......2
[2] The Pehchan and other laws (Amendment) Ordinance, 2019 and The Pehchan (Pricing of
Pehchan Authentication Services) Regulation, 2019 is constitutional as it does not violate the
fundamental rights…..…..……………………………………………………………………..3
[2.1] The impugned Ordinance is constitutional as it does not violates the rights guaranteed
under part III of the constitution, it does not enable state surveillance and private
surveillance of citizens and commercial exploitation……….…………………………...….3
[2.2] The impugned Regulation which direct private entities to pay for e-kyc is not repugnant
to the constitutional protection accorded ……………………………...………………........5
[2.3.] Collection of Pehchan Database and use of this for certain purpose or objective is not
an impermissible violation of their dignity under Article 19 and 21 of the constitution……..6
[2.4.] Reasonable restrictions can be imposed on Fundamental Rights to give effect to

Directive Principles of State Policy…………………………………………………………8
MEMORIAL ON BEHALF OF THE RESPONDENT II

[3.] The Public Entities have the right to keep personal/ sensitive information and biometric
data of the citizens and the private entities will be liable in case of breach or
leakage…..…………………………………………………………………..……………......11
[3.1] That the public entity is any state or local government and has the right to keep personal
and sensitive information of the citizen………………………….…………………….......11
[3.2] State/Public entity will not be liable in case of breach or leakage of personal and
sensitive information…………………………………………..………….……………….14
[3.3.] That the Private Entities will be liable for leakage of the personal and sensitive
information………………………………………………………………………………..16
[4] 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, do not pose a great threat to national security after the Pehchan and other
law (Amendment) Ordinance, 2019…………………………………………………………..18
[4.1] That Authentication process under the Ordinance is a safe process………….............18
[4.2] That linking of Pehchan Database with the PMLA Act is to curb Money laundering
and safeguard National Security……………………………………………………….......19
[4.3.] That the linking of Pehchan Database with services provided under Telegraph Act has
the force of law…………………………………………………………………………….20
[5.] The current data protection methods adopted by the government does prevent Cyber
Threats under IT Act, 2002…………………………………………………………………...22
[5.1.] Information can be disclosed and additional safeguard is there……………………..22
[5.2.] That the data protection methods adopted prevents Cyber Threats………………….24
PRAYER……………………………………………………………………………….…..XV
MEMORIAL ON BEHALF OF THE RESPONDENT III

LIST OF ABBREVIATIONS
S.NO ABBREVIATION EXPANSION
1. ¶ Paragraph
2. A. P Andhra Pradesh
3. AIR All India Report
4. Cal Calcutta
5. CIDR Central Identity Data Repository
6. Cri Criminal
7. HC High Court
8. IT Information Technology
10. ITO Income Tax Officer
11. KYC Know Your Transaction
12. L&S Labour and Services
13. LIC Life Insurance Corporation
14. U.O.I. Union of India
15. NCTE National Council for Teacher Education
16. ONGC Oil and Natural Gas Corporation
18. PAN Permanent Account Number
19. Pg. Page No.
20. PKI Public Key Infrastructure
21. PMLA Prevention of Money Laundering Act
22. RBI Reserve Bank of India
17. S. Section.
23. SC Supreme Cases
24. SCC Supreme Court Cases
25. SCR Supreme Court Reporter
26. UIDAI Unique Identification Authority of India
27. W. P Writ Petition
28. WBLR West Bengal Law Review
29. WLR Weekly Law Reports
MEMORIAL ON BEHALF OF THE RESPONDENT IV

INDEX OF AUTHORITIES
JUDICIAL DECISIONS
1) Air India Statutory Corp. v. United Labour Union, AIR 1997 SC 645……………….7, 8
2) Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487…………………………………………11
3) Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1………………………………………9
4) Autyanuprasi v. Union of India (1989 Supp (1) SCC 251)……………………………….2
5) Avishek Goenka v. U.O.I, !2012) 5 SCC 275…………………………………………..21
6) Bandhua Mukti Morcha v. Union of India (1984 (3) SCC 161)………………………….2
7) Bijoya Lakshmi Cotton Mills v. State of West Bengal, AIR 1967 SC 1145………………9
8) Binoy Viswam v. Union of India & Others., (2017) 4 SCC 673……………………...7, 8
9) Bodhisattwa v. Subhra Chakraborty, AIR 1996 SC 922,926…………………………....IX
10) Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore, AIR 1970 SC
2042………………………………………………………………………………………8
11) Chhetriya Pardushan Mukti Sangharash Samiti v. State of U.P, (1990 (4) SCC 449……2
12) Chiranjit Lal Chowdhury v. Union of India, AIR [1951] SC 41………………………….1
13) CIT v. Hindustan Bulk Carriers, (2003) 3 SCC 57……………………………………....10
14) Collector of Central excise Jaipur v. Raghuvar, (India) ltd, JT 2000 (7) SC 99………….10
15) Common cause, a registered society v. Union of India, AIR 1999 SC at 3020……….....IX
16) Federation of Bar Association in Karnataka v. Union of India, W.P (civil) 379 of
2000………………………………………………………………………………………1
17) G. Sundarrajan v. Union of India, (2013) 6 SCC 620…………………………..…..19, 23
18) Githa Hariharan v. RBI, (1999) 2 SCC 228………………………………………………9
19) Gobind v. State of Madhya Pradesh & Another. (1975) 2 SCC 148……………...5, 6, 12
20) Hindi Hitrakshak Samiti v. Union of India, (1990) 2 SCC……………………………….1
21) Investigating Directorate: Serious Offences v. Hyundai Motor Distributors Ltd, 2001 (1)
SA 545 (CC)……………………………………………………………………………...6
22) Iridium India Telecom Limited v. Motorola Inc, (2005) 2 SCC 145…………………….10
23) Janta Dal v. H.S Chowdhary, AIR 1992 (4) SCC 305…………………………………….1
24) K. Nagaraj v. State of A.P., (1985) 1 SCC 523…………………………………………..3
25) K.R.Srinivas v. R.M. Premchand (1994 (6) SCC 620) …………………………………..1
26) K.S. Puttaswamy v. U.O.I, (2017) 10 SCC 1……………..…………….……......9, 10,12
MEMORIAL ON BEHALF OF THE RESPONDENT V

27) K.S.Puttaswamy v. U.O.I, 1 SCC 1 (2019) ……………………………. 4, 9, 10, 13, 14

28) Kazi Lhendup Dorji v. Central Bureau 1994 Supp (2) SCC 116…………………………1
29) Lily Kurian v. Lewina, (1979) 2 SCC 124……………………………………………...21
30) Lokniti Foundation v. Union of India & Ors. WP(C) No.612/2011………………..8, 21
31) Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125…………………………………..9
32) Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh
Bhupeshkumar Sheth, (1984) 4 SCC 27………………………………………………...21
33) Maneka Gandhi v. Union of india, (1978) 1 SCC 248…..………………………………..9
34) Mani Subrat Jain v. State of Haryana, (1977) 1 SCC 486………………………………...2
35) Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC…………………………………..5
36) Nandini Sundar v. state of chattisgarh, (2011) 7 SCC 547……………………………….9
37) National Legal Service Authority of India v. Union of India, (2014) 5 SCC 438………...9
38) P.P. Enterprises v. Union of India 1982) 2 SCC 33………………………………………5
39) Papanasam Labour Union v. Madura Coats Ltd, (1995) SCC 1501……………………...8
40) Pathumma v. State of Kerala, (1978) 2 SCC 1…………………………………………...8
41) Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111…...12
42) PUCL v. Union of India, (1997) 1 SCC 301………………………….………......5, 7, 12
43) Rajasthan SEB v. Mohan Lal, AIR 1967 SC 1857……………………………………...11
44) Ram Prasad v. State of Bihar, AIR 1953 SC 215…………………………………………6
45) Ramjas Foundation v. Union of India (AIR 1993 SC 852) ………………………………1
46) S.G. Vombatkere v. Union of India, W.P. (C) No. 829 of 2013………………………...19
47) S.G. Vombatkere v. Union of India, W.P. (C ) No. 000679 - / 2019……………………19
48) S.P.Gupta v. Union of India [1981 Supp. SCC 87…………………………………….....2
49) Sachidanand Pandey v. State of W.B., (1987 (2) SCC 295, 331…………………………..2
50) Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845……………………………………9
51) Sandeep Biswas v. State of west Bengal, (2010) 2 cal WN(Cal)399……………………11
52) Sandeep Singh Jadon v. Central public information officer
CIC/DGEAT/A/2018/117567…………………………………………………………..16
53) St. Johns Teachers Training Institute v. NCTE, (2003) 3 SCC 321…………………......21
54) State of Bihar v. Kameshwar Singh, AIR 1952 SC 252………………………………….9
55) State of Gujrat v. Mirazpur Moti Kureshi Kassab Jamat, AIR 2006 SC 212……………..8
56) State of H.P. v. A Parent 1985 (3) SCC 169………………………………………….......2
57) State of Karnataka v. Raghunath Reddy, AIR 1978 SC 215……………………………..7
58) Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421………….21
MEMORIAL ON BEHALF OF THE RESPONDENT VI

59) T. Venkata Reddy v. State of A.P. (1985) 3 SCC 198……………………………….......3

60) Thalappalam Service Cooperative Bank Limited v. State of Kerala, (2013) 16 SCC
82…………………………………………………………………………………………6
61) UDAI v. CBI, (2017) 7 SCC 157……………………………………………………….22
62) Union of India v. V Srihari, (2016) 7 SCC 1…………………………………………......3
63) V. Markandeya v. State of A.P., AIR 1989 SC 1308……………………………………..8
64) Vishakha v. state of Rajasthan, (1997) 6 SCC 228……………………………………….9
LEGAL DATABASES REFERRED
1. Manupatra Online Resources, http://www.manupatra.com.
2. Lexis Nexis Academica, http://www.lexisnexis.com/academica.
3. SCC Online, http://www.scconline.co.in.
4. Oxford Dictionary, http://www.oxforddictionaries.com.
5. Supreme Court of India, http://supremecourtofindia.nic.in/.
6. Westlaw, http://www.westlawindia.co.
7. Hein Online, http://home.heinonline.org/.
DICTIONARIES REFFERRED
1. Black’s Law Dictionary, 7th Ed. (1999).

2. OSBORN’S Law Dictionary.
COMMITTES REPORTS
1. Committee of Experts under the Chairmanship of Justice B.N. Srikrishna, available at,
https://meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf,last
seen on 01/09/2019.
2. Planning Commission, Government Of India, Group Of Experts on Privacy under the
Chairmanship Of Justice A.P Shah, available at,
http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf. Last seen on
01/09/2019.
MEMORIAL ON BEHALF OF THE RESPONDENT VII

BOOKS REFERED
1. Justice SS Subramani, D.D. Basu Commentary on the Constitution of India, 3138 (Lexis
Nexis Butterworth Wadhwa Publications, Nagpur, 2008).
2. H.M. Seervai, Constitutional Law of India: A Critical Commentary, (Universal Law

Publishing Pvt. Ltd., Delhi, 4th edition, 1967).
3. M.P Jain, Indian Constitutional Law, (Lexis Nexis Butterworth Wadhwa Publications,
Nagpur, 6th edition, 2015).
4. Lord Halsbury, Halsbury’s Laws of India, Volume 35 (Lexis Nexis Butterworth Wadhwa
Publications, 2nd ed., Nagpur, 2007).
5. Granville Austin, Cornerstone of a Nation (Indian Constitution), Volume 75 (Oxford India,

New Delhi, 1999).
6. L.M. Singhvi & Swarup, Jagdish; Constitution of India, (Modern Law Publications, New
Delhi, 3rd edition, 2013).
STATUTES
1. Indian Penal Code, 1860………………………………………………………………passim
2. Indian Telegraph Act, 1885……………………………………………………………passim
3. Constitution of India, 1950……………………………………………………………passim
4. The Citizenship Act, 1955……………………………………………………………..passim
5. Income Tax Act, 1961…………………………………………………………………passim
6. Information Technology Act, 2000……………………………………………………passim
7. Prevention of Money Laundering Act, 2002…………………………………………..passim
8. Right to Information Act, 2005………………………………………………………..passim
9. Aadhar(Targeted delivery of Financial and Other Subsidies, benefits and Services) Act,
2016……………………………………………………………………………………...passim
10. Aadhaar and Other Laws (Amendment) 2019………………………………………..passim
11. Aadhaar (Pricing of Aadhaar Authentication Services) Regulation, 2019…………...passim
MEMORIAL ON BEHALF OF THE RESPONDENT VIII

STATEMENT OF JURISDICTION
The memorandum on behalf of the Respondent is filed under Writ of Mandamus of Article 32
of the constitution of Republic of Indiana.
Article 32 guarantees the right to move the Supreme Court, for enforcement of Fundamental
Rights, It empowers the Supreme court to issue appropriate orders or directions, or writs in the
nature of habeas corpus, mandamus, quo warranto and certiorari, for the enforcement of
Fundamental rights.1 Right of Access to the Supreme Court under article 32 is a Fundamental
Right itself. 2
The memorandum in the matter of Jagruk Law Students Association v. Republic of Indiana,
sets forth the facts, contentions and arguments in the present case.
1
M.P. Jain, Indian Constitutional Law, 1353, (Lexis Nexis, 7th edition, 2016).
2
Bodhisattwa v. Subhra Chakraborty, AIR 1996 SC 922,926, Common cause, a registered society v. Union of
India, AIR 1999 SC at 3020.
MEMORIAL ON BEHALF OF THE RESPONDENT IX

SYNOPSIS OF FACTS
BACKGROUND
The Republic of Indiana located in South Asia is a multicultural nation, the country is a
sovereign, democratic, republic nation with a federal set up and the constitution enumerates
various fundamental rights which are available against the state (defined under article 12). The
Pehchan scheme was introduced as the government was emphasizing on transforming the
country into “Digital Indiana”. Notification was issued, Pehchan authority was constituted but
there was no regulation regarding collection of biometric information, storage and usages of
the information as well as security of such information collected by the Pehchan authority,
there was no statutory backing for the program/scheme. In 2016, Pehchan (Targeted Delivery
of Financial and other Subsidies, Benefits and Services) Act, 2016 (Pehchan Act, 2016) was
passed.
PEHCHAN DATABASE AND ITS USAGE
Pehchan scheme was challenged by filing several PILs, on the grounds that it is used as a tool
of surveillance, interfered with federalism and is causing denial of fundamental rights to
personal liberty, the lead petition being Michael Cross v. Republic of Indiana and first writ
petition being Trevor John v. Republic of Indiana. Under the Pehchan ( Targeted Delivery of
Financial and Other Subsidies, Benefits and Services) Act, 2016 notifications were issued by
different ministries for making Pehchan no. mandatory requirement for an individual to avail
different benefits, services and subsidies under various schemes which includes: TRARI
launched Pehchan based e-KYC for mobile connections and re-verifications of existing
customers, ITDRI made Pehchan no. mandatory for obtaining PAN, Pehchan no. was made
mandatory for e-KYC by Prevention of money laundering(maintenance of records) second
amendment rules,2017. In the case Michael Cross v. Union of Indiana, a constitutional bench
passed its order in which it decided only two usages of Pehchan Database, and only by the
government and even voluntary use of Pehchan database by the private parties was held
unconstitutional.
MEMORIAL ON BEHALF OF THE RESPONDENT X

PEHCHAN AND OTHER LAWS (AMENDMENT) ORDINANCE, 2019 AND PEHCHAN (PRICING OF
AUTHENTICATION SERVICES) REGULATION, 2019 AND ITS IMPACT.
In January, Pehchan ordinance 2018 was passed in Lok Sabha, which dissolved the ordinance
and therefore it lapsed, however in march Pehchan and other law (Amendment) ordinance,
2019 was promulgated which was same as in 2018 Pehchan ordinance. A catena of articles was
published in newspaper which highlighted the misuse of information of the citizens like SBRI
allege Pehchan data misuse and that the enrolment details of their vendors had been stolen and
misused b) Andhra Pradesh: TDP app breached data of 3.7 crore voters(misuse of data collected
during Pehchan enrolment) c)Fir filed by John Mark under sec 66-B and 72 of IT Act, 2000
and sec 120b,379,420 and 188 of IPC 1860 alleges misuse of data including for private and
election purpose. UIDARI also notified the Regulations in which UIDARI will charge private
entities per e-KYC transaction and yes/no authentication transaction. Under the Regulation,
private entities sub-worked their responsibilities to other private entities/parties to make more
profit which result into leakage of personal and sensitive information of the citizen’s.
WRIT PETITION FILED AS A PIL.
Jagruk Law Students Association filed Writ petition as PIL under Article 32 of the constitution
of Republic of Indiana for adjudication of issues of leakage of information by private entities
and creates a backdoor to permit 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.
MEMORIAL ON BEHALF OF THE RESPONDENT XI

ISSUES RAISED
ISSUE 1
WHETHER THE WRIT PETITION FILED BY THE PETITIONER UNDER ARTICLE 32

OF THE CONSTITUTION OF REPUBLIC OF INDIANA IS MAINTAINABLE?
ISSUE 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
FUNDAMENTAL RIGHTS GUARANTEED UNDER PART III OF THE CONSTITUTION
OF REPUBLIC OF INDIANA?
ISSUE 3
WHETHER THE PUBLIC ENTITIES HAVE THE RIGHT TO KEEP ANY PERSONAL
AND SENSITIVE INFORMATION AND BIOMETRIC DATA OF CITIZENS OF THE
REPUBLIC OF INDIANA, WHAT HAPPEN IN CASE OF BREACH OR LEAKAGE OF
PERSONAL AND SENSITIVE INFORMATION OF CITIZENS OF REPUBLIC OF
INDIANA AND WHO WILL BE LIABLE FOR IT?
ISSUE 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?
ISSUE 5
WHETHER THE CURRENT DATA PROTECTION METHODS ADOPTED BY THE

GOVERNMENT PREVENTS CYBER THREATS UNDER IT ACT,2000?
MEMORIAL ON BEHALF OF THE RESPONDENT XII

SUMMARY OF ARGUMENTS
[1] THAT THE WRIT PETITION FILED BY THE PETITIONER UNDER ARTICLE
32 OF THE CONSTITUTION OF REPUBLIC OF INDIANA IS NOT
MAINTAINABLE.
It is humbly submitted before this Hon’ble Republic Court of Indiana that the writ petition filed
as a PIL under article 32 is not maintainable as there is no substantive question of law involved
and no violation of Fundamental Right and therefore the Petition filed is just wastage of time.
[2] THAT THE PEHCHAN AND OTHER LAWS (AMENDMENT) ORDINANCE,

2019 AND THE PEHCHAN (PRICING OF PEHCHAN AUTHENTICATION
SERVICES) REGULATIONS, 2019 IS NOT UNCONSTITUTIONL AS IT DOES NOT
VIOLATE THE FUNDAMENTAL RIGHTS GUARANTEED UNDER PART III OF
THE CONSTITUTION OF REPUBLIC OF INDIANA.
It is humbly submitted before this Hon’ble Republic Court of Indiana that The Pehchan and
other laws(amendment) Ordinance,2019 and The Pehchan (Pricing of Pehchan authentication
services) regulations,2019 is not unconstitutional as it passes the test of proportionality, and
satisfies the threefold test (i.e. have an existence of law, legitimate state interest and
proportionality) thereby it cannot be said that the above mentioned Ordinance and regulation
is violating the fundamental rights guaranteed under part III, instead the scheme was introduced
to provide benefit to the marginalised people and also a unified medium to every one for their
identification.
[3] THAT THE PUBLIC ENTITIES HAVE THE RIGHT TO KEEP ANY
PERSONAL/SENSITIVE INFORMATION AND BIO-METRIC DATA OF CITIZENS
OF THE REPUBLIC OF INDIANA AND THE PRIVATE ENTITIES WILL BE
LIABLE IN CASE OF BREACH OR LEAKAGE OF PERSONAL AND SENSITIVE
INFORMATION OF CITIZEN OF REPUBLIC OF INDIANA.
It is humbly submitted before this Hon’ble Republic Court of Indiana that The Public entities
being “state” have the right to keep any personal/sensitive and bio-metric data of citizens for
fulfilling a legitimate state interest or for national security reasons, if law enacted permits them
MEMORIAL ON BEHALF OF THE RESPONDENT XIII

and in case of leakage the private entity will be liable because the leakage has been done by
them in the present case and the government has provided information to the private entities
with bona fide intention for fulfilling a legitimate state aim.
[4] THAT PERMITTING THE PEHCHAN DATABASE TO LINK WITH THE

PREVENTION OF MONEY LAUNDERING ACT,2002 AND SECTION 4 OF THE
INDIAN TELEGRAPH ACT, 1885, DO NOT POSE A GRAVE THREAT TO
NATIONAL SECURITY AFTER THE PEHCHAN AND OTHER LAWS
(AMENDMENT) ORDINANCE, 2019.
It is humbly submitted humbly submits before the Hon’ble Court of Republic of Indiana that
linking of Pehchan database with the services offered under Money Laundering Act and
Telegraph Act, do not pose a grave threat to national security as the authentication process is
totally secured, linking removes bogus bank accounts and has the force of law.
[5] THAT THE CURRENT DATA PROTECTION METHODS ADOPTED BY THE

GOVERNMENT PREVENTS CYBER THREATS UNDER IT ACT,2000.
It is humbly submitted before the Hon’ble Republic Court of Indiana that current data
protection methods adopted by the government prevent cyber threats, as section 43A, 66C,72A
of the IT 2000 Act, deals with punishment in case of breach of leakage of personal and sensitive
information of the citizen, punishing such “corporate bodies” for the disclosure, The Pehchan
Act also provides protection of the biometric information of the citizen of Republic of Indian
MEMORIAL ON BEHALF OF THE RESPONDENT XIV

ARGUMENTS/PLEADINGS
[1] THAT THE WRIT PETITION FILED BY THE PETITIONER UNDER ARTICLE
32 OF THE CONSTITUTION OF REPUBLIC OF INDIANA IS NOT
MAINTAINABLE.
¶ 1. It is most humbly submitted that the present petition is not maintainable in Hon'ble Republic
Court of Indiana. The Petitioner has filed the present writ petition as PIL under Article 32 of
the Constitution of Republic of Indiana. The essential condition for filing the writ petition under
Article 32 is violation of Fundamental Rights under Part III of the Constitution. 3
¶ 2. It is humbly submitted that in the present situation, no Fundamental Right of the Petitioner has
been violated by the impugned Ordinance and Regulation.
[1.1] THE MATTER DOES NOT INVOLVE A SUBSTANTIAL QUESTION OF LAW AS IT IS NOT OF
GENERAL PUBLIC IMPORTANCE.
¶ 3. It is humbly submitted that the Writ Petition filed as PIL by the Petitioner is not maintainable
in Hon’ble Republic Court of Indiana because the grounds on which a PIL should be filed are
not fulfilled by the Petitioner. Grounds defined in the case Janata Dal v. H.S. Chowdhary And
Ors4, are as follows:
“A legal action initiated in a Court of Law for the enforcement of public interest
or general interest in which the public or a class of the community have pecuniary
interest or some interest by which their legal rights or liabilities are affected5”
¶ 4. As mentioned above, a PIL is filed when a matter is of general public importance but in the
present case, there are no contentions as to why the matter should be of general public
importance because there has been no breach whatsoever from the part of state. The Pehchan
scheme is a visionary scheme with some tremendous prospects which will take the country
ahead in respect to every field. Therefore it is to noted that, the concept of PIL was made for
3
Chiranjit Lal Chowdhury v. Union of India, AIR [1951] SC 41; See also, Federation of Bar Association in
Karnataka v. Union of India, (2000) 6 SCC 715 : AIR [2000] SC 2544, Hindi Hitrakshak Samiti v. Union of India,
(1990) 2 SCC 352 : AIR 1990 SC 851, see also The Janta Dal v. H.S.Chowdhary [1992 (4) SCC 305] Kazi
Lhendup Dorji vs. Central Bureau 1994 Supp (2) SCC 116 See Ramjas Foundation v. Union of India (AIR 1993
SC 852) and K.R.Srinivas v. R.M.Premchand (1994 (6) SCC 620).
4
Janata Dal v. H.S. Chowdhary And Ors AIR 1993 SC 892.
5
Janata Dal v. H.S. Chowdhary And Ors, AIR 1993 SC 892.
MEMORIAL ON BEHALF OF THE RESPONDENT 1

the needy, but many a times it is been misused by the parties as held in State of H.P v. A Parent
of a Student of Medical College6 that Public Interest Litigation is a weapon which has to be
used with great care and caution. Similarly, in the present case the petitioner PIL should be
dismissed as it is wasting the important time of the court.
[1.2.] THE WRIT OF MANDAMUS IS NOT MAINTAINABLE IN THE PRESENT PETITION.
¶ 5. It is humbly submitted that Mandamus is a judicial remedy which is in form of an order from
a superior Court to government, court, corporation or public authority to do or to forbear from
doing some specific act which that body is obliged under law to do or refrain from doing, as
the case may be, and which is in the nature public duty and in certain cases of statutory duty 7.
¶ 6. It is further submitted that the writ of Mandamus is not maintainable in the present petition.
Person can file a writ of Mandamus only when he is denied a fundamental right by someone
who has legal duty to do something and abstains from doing it 8.
¶ 7. In the present case, there is no fundamental right violated as all the steps taken by the
government is a necessary action in order to keep a check on national security of the Republic
of Indiana. All the steps taken by the government are taken with proper due and care and hence
does interfere in the privacy of an individual. Hence the writ petition filed as a PIL is a weapon
which should be used with proper care9 and not to waste time of the court.
[1.3.] THERE IS NO VIOLATION OF FUNDAMENTAL RIGHTS.
¶ 8. It is humbly submitted that there is no violation of fundamental right. The Pehchan scheme is
introduced to give the benefits to the needy and not to risk someone privacy or intrude into
someone private space. To implement such a big project, it is necessary to be data protected
and maintain certain regulation with the corporation of citizen of Republic of Indiana.
¶ 9. Secondly it is important for an individual to get identified, it provides a sense of existence to

an individual and helps the state to function smoothly and it helps to reduce some particular
crimes which were difficult to handle without such a project. Hence it should be noted that the
Pehchan scheme does not violate Fundamental Right.
6
State of H.P v. A Parent of a Student of Medical College 1985 3 SCC 169.
7
A.T. Markose, Judicial Control of Administrative Action in India, 364, (Lexis Nexis, 3rd edition, 2016).
8
Mani Subrat Jain v. State of Haryana, (1977) 1 SCC 486: AIR 1977 SC 276, See also
9
State of H.P. vs. A Parent 1985 (3) SCC 169, See also S.P.Gupta v. Union of India [1981 Supp. SCC 87]
Sachidanand Pandey vs. State of W.B., (1987 (2) SCC 295, 331) Autyanuprasi v. Union of India, (1989 Supp (1)
SCC 251) Bandhua Mukti Morcha v. Union of India (1984 (3) SCC 161) Chhetriya Pardushan Mukti Sangharash
Samiti v. State of U.P., (1990 (4) SCC 449.

[2] THAT THE PEHCHAN AND OTHER LAWS (AMENDMENT) ORDINANCE,

2019 AND THE PEHCHAN (PRICING OF PEHCHAN AUTHENTICATION
SERVICES) REGULATIONS,2019 IS NOT UNCONSTITUTIONL AS IT DOES NOT
VIOLATES THE FUNDAMENTAL RIGHTS GUARANTEED UNDER PART III OF
THE CONSTITUTION OF REPUBLIC OF INDIANA.
¶ 10. It is most humbly submitted before this Hon’ble Republic Court of Indiana, that The Pehchan
and other law (Amendment) Ordinance,2019 and Pehchan (Pricing of authentication services)
Regulations,2019 is not unconstitutional as it does not violate the fundamental rights
guaranteed under part III of the constitution of Republic of Indiana.
[2.1.] THE IMPUGNED ORDINANCE IS CONSTITUTIONAL AS IT DOES NOT VIOLATE THE

RIGHTS GUARANTEED UNDER PART III OF THE CONSTITUTION, IT DOES NOT ENABLE STATE
AND PRIVATE SURVEILLANCE OF CITIZENS, AND COMMERCIAL EXPLOITATION.
¶ 11. It is most humbly submitted before the Hon’ble Republic court that the ordinance 10 and
Regulations11 does not violate the fundamental rights. In the case Union of India v. Srihari12 it
was held that: under Articles 123, 213 and 239-B of the Constitution, the power to issue
Ordinance is vested with the President, the Governor and the Administrator of the Union, the
State and the Union Territory of Puducherry respectively by way of an executive action, this
Court has clarified that the exercise of such power would be on a par with legislative action
and not by way of an administrative action. 13
¶ 12. The two critical factors that have emerged as determinative tests to allow any private entity
access to Pehchan e-KYC by The Pehchan Ordinance, 201914are: (i) informed customer
consent; and (ii) adequate safeguards to ensure privacy and security of customer data.
¶ 13. Pehchan and other laws (Amendment) Ordinance, 2019 : Banks and telecom companies may
accept the Pehchan number (which includes any virtual identity used as an alternative to the
10
Pehchan and other laws (Amendment) ordinance,2019.
11
Pehchan (Pricing of Authentication services) Regulations, 2019.
12
Union of India v. Srihari, (2016) 7 SCC 1.
13
Union of India v. V. Sriharan, (2016) 7 SCC 1. See also: K. Nagaraj v. State of A.P., (1985) 1 SCC 523 and T.
Venkata Reddy v. State of A.P., (1985) 3 SCC 198.
14
The Pehchan and Other Laws (Amendment) Ordinance, 2019.

Aadhaar number) of a customer to undertake an Pehchan KYC, provided that: the Pehchan
number is obtained with the express and informed consent of the customers, Pehchan KYC is
only one of the available options to authenticate the identity of the customer, the entity
undertaking Pehchan KYC is compliant with the prescribed standards of privacy and
security,15 the entity is permitted to undertake Aadhaar KYC under the provisions of any law
or the entity seeks to use Pehchan KYC for purposes as may be prescribed by the central
government in consultation with the Pehchan Authority and in the interest of the state. Since
the biometric information collected and authentication done is after taking the due consent of
the individual and ensuring that certain standard of privacy and security is there, it cannot be
said that The Pehchan and other laws (Amendment) Ordinance and Pehchan (Pricing of
authentication services) Regulations, 2019 violates the Fundamental right guaranteed under
part III of the constitution of Republic of Indiana.
¶ 14. Section 57 of the Aadhar Act which was struck down in K.S. Puttaswamy v. U.O.I16. in the
absence of supporting legislature states that:
“Nothing shall prevent the use of Aadhaar number for establishing the identity of
an individual for any purpose, whether by the State or anybody corporate or
person, pursuant to any law, for the time being in force, or any contract to this
effect.”17 A new subsection under sec 4 was added which stated that “Every
Aadhaar number holder to establish his identity, may voluntarily use his
Aadhaar number in physical or electronic form by way of authentication or
offline verification, or in such other form as may be notified, in such manner as
may be specified by regulations.”
¶ 15. Since the Ordinance states the term “voluntary use” it cannot be said that the same is
unconstitutional, Right to know is also a fundamental right guaranteed under part III of the
constitution of republic of Indiana, the Ordinance amended the sec and brought “ voluntary
use” and even “ consent of parents” in case of a minor, therefore the Petitioner’s contentions
is wrong and every person who “ voluntarily” agrees to give his information has the mens
rea to do so and will fall under the ambit of “voluntary non fit injuria”
15
Pehchan and other law (Amendment) Ordinance, 2019
16
K.S.Puttaswamy v. Union of India,1 SCC 1 2019.
17
The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

[2.2.] THE IMPUGNED REGULATIONS DIRECT PRIVATE ENTITIES TO PAY FOR THE E-KYC IS
NOT REPUGNANT TO THE CONSTITUTIONAL PROTECTIONS ACCORDED.
¶ 16. It is most humbly submitted before the Hon’ble Republic Court of Indiana that K.S.
Puttaswamy v. Union of India18, it was held that “the Court has recognised data retention by
the Government which may be necessitated in the public interest and in the interest of national
security. PUCL v. Union of India,19 In that case, action of telephone tapping was challenged
as serious invasion of individual's privacy. The Court found that Section 5(2) of the Telegraph
Act, 1885 permits the interception of messages in circumstances mentioned therein i.e.
“occurrence of any public emergency” or “in the interest of public safety”. 20
¶ 17. Reasonableness is judged with reference to the objective which the legislation seeks to achieve
and must not be in excess of that objective 21. Further, the reasonableness is examined in an
objective manner from the standpoint of the interest of the general public and not from the
point of view of the person upon whom the restrictions are imposed or abstract considerations
22
¶ 18. The test of Compelling state interest laid down in Gobind v. State of MP,23 provides that right
to privacy of the people can be compromised in view of compelling state interest. National
security, controlling corruption and preventing duplicity comes within the ambit of state
interest. Thus, Ordinance and Regulation safeguards national security and public order and
under Regulation 2 (1) private entities are being asked to pay so that the state can ensure that
the entities have certain standard of privacy and security and after the payment criteria many
entities will think twice before using the authentication through Pehchan database.
18
K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1.
19
PUCL v. Union of India, (1997) 1 SCC 301.
20
21
P.P. Enterprises v. Union of India (1982) 2 SCC 33.
22
Mohd. Hanif Quareshi v. State of Bihar, (1959) SCR 629.
23
Gobind v. State of Madhya Pradesh & Anr., (1975) 2 SCC 148.

[2.3.] COLLECTION FOR THE PEHCHAN DATABASE AND USE THIS FOR CERTAIN PURPOSE OR
OBJECTIVE IS NOT AN IMPERMISSIBLE VIOLATION OF THEIR RIGHT UNDER ARTICLE 19 AND
21.
¶ 19. It is most humbly submitted before the Hon’ble Republic court that, the contentions raised by
the petitioner is that data collected by Pehchan database is private and therefore is violation of
their fundamental right under dignity is wrong, as there are certain situations when the state
has the right to collect the data of individual which include – for national security reasons,
preventing corruption, avoiding duplication of identities and also fundamental rights are not
sacrosanct and absolute and reasonable restrictions can be put on it.
[2.3.1.] NATIONAL SECURITY
¶ 20. It is most humbly submitted before the Hon’ble Republic court that restrictions right to privacy
for national security purpose. In the case of Gobind v. State of Madhya Pradesh,24 the Court
has held that the right to privacy can be restricted if there is a compelling state interest to be
served and recognized threat to national security in the nature of compelling state interest.
¶ 21. In the case of Ram Prasad v. State of Bihar,25 the government brought a legislation to cancel
the lease of a particular individual, even though the legislation did not satisfy the test of
reasonable classification, to maintain public peace and order.
Pehchan regulation and Ordinance will help in preventing terrorism and will keep a track on
all the financial transaction which will protect the security of the state and therefore is not
unconstitutional.
¶ 22. People are exempted from disclosure of personal information which has no relationship to any
public activity or interest, or which would cause “unwarranted invasion of the privacy of the
individual” unless the authority is satisfied that the larger public interest justifies its
disclosure.26
[2.3.2.] PREVENTION OF CORRUPTION
¶ 23. Corruption is required to be mitigated to ensure that the deprived sections of the society are
able to benefit from various social welfare schemes of the government, which will help in
24
Gobind v. State of Madhya Pradesh & Anr., (1975) 2 SCC 148. See also: Investigating Directorate: Serious
Offences v. Hyundai Motor Distributors Ltd, 2001 (1) SA 545 (CC).
25
Ram Prasad v. State of Bihar, AIR 1953 SC 215.
26
Thalappalam Service Cooperative Bank Limited v. State of Kerala, (2013) 16 SCC 82.

27
establishing socialist state, which has been held to be “one of the goals of our constitution. and
is necessary for the ‘common good’ of the people of the country. Socialism aims at distribution
of material resources of the community in such a way as to sub serve the common good.28 The
system of bio-metric identification of homeless persons will help in supply of benefits like
food and kerosene oil to persons who are the correct beneficiaries. 29
¶ 24. The remarkable success of Andhra Pradesh government in curbing corruption by mandatory
issuing of biometric cards should be taken into consideration here. The State government
collected a range of biometric data including iris scan, photographs and fingerprints in a
period of 4 years after collecting the relevant data, the state government began a structured
programme to sort out duplicate cards on the basis of biometric information. This was done
by comparing fingerprints and iris scans, initially at the district level and ultimately at state
level. In the process, the state government reportedly weeded out crore duplicate ration cards.
According to the reported statistics, biometric ration cards have proven to be a great success
in the state government’s efforts to streamline its PDS Network and perhaps reduce corruption
and pilferage. 30
[2.3.3.] AVOIDING DUPLICITY OF IDENTITY
¶ 25. It is most humbly submitted before the Hon’ble Republic court that, Duplicity of identities
poses a huge threat to the democratic structure of the country as it challenges the system of
free and fair elections, which is the basic pillar of our country. The Project will help in
ensuring free and fair elections. 31 Also, this linking of bank accounts will help in increasing
the tax collection by the government. Linking of Pehchan Cards with PAN, will increase the
tax returns of the government by minimizing corruption. In the recent case of Binoy Viswam
v. Union of India,32 the government has held linking of Aadhaar Cards with PAN
constitutional.
¶ 26. Pehchaan Project is also a solution to problem of illegal immigrants in the country, which will
27
Air India Statutory Corp. v. United Labour Union, AIR 1997 SC 645.
28
State of Karnataka v. Raghunath Reddy, AIR 1978 SC 215.
29
People’s Union for Civil Liberties v. Union of India & Ors., (2010) 5 SCC 318.
30
Bageshree, Biometric Identification for Ration Cards too, The Hindu(29/11/2007),
http://www.thehindu.com/todays-paper/tp-national/tp-andhrapradesh/Biometric-identification-for-ration-cards-
too/article14884735.ece ,( last seen on 01/09/2019).
31
Ministry Of Law, Justice And Company Affairs, Government Of India, Indrajit Gupta Committee Report on
State Funding of Elections, http://lawmin.nic.in/ld/erreports/Indrajit%20Gupta%20Committee%20Report.pdf,
(last seen on 01/09/2019).
32
Binoy Viswam v. Union of India & Ors., (2017) 4 SCC 673.

help in more rational distribution of the welfare entitlements provided by the government to
the citizens of the country and reduce terrorism and the process of mandatory identification of
citizens will eliminate illegal immigrants. Following these principles, the SC has approved
Aadhaar based verification of existing and new mobile33
¶ 27. In the case of Binoy Viswam v. Union of India34, the SC has observed that Section 139AA of
the IT Act, which requires the linking of Aadhar Card with PAN is not arbitrary and not
violative of right to equality of the people, and therefore held it to be constitutional.35
Fundamental Rights and Directive Principles constitute true conscience and without faithfully
implementing the Directive Principles it is not possible to achieve the Welfare State
contemplated by the Constitution.36
[2.4.] REASONABLE RESTRICTIONS CAN BE IMPOSED ON FUNDAMENTAL RIGHTS TO GIVE

EFFECT TO DIRECTIVE PRINCIPLES OF STATE POLICY.
¶ 28. It is most humbly submitted before the Hon’ble Republic court that; Part III and Part IV of
the Constitution of India are complementary and supplementary to each other; 37 the former
provides for civil and political rights while the latter provides for social and economic rights
and one cannot have primacy over the other.38
¶ 29. Government can impose reasonable restrictions on fundamental rights, for promoting or
effectuating a directive principle in public interest.39The Constitution can be reshaped to give
effect to these principles for the purpose of social good, with certain limitations. 40Though,
these principles are not justiciable but these are not merely moral principles, these are
fundamental in the governance of the country.41They are relevant in considering reasonable
restrictions that can be imposed on fundamental rights.42
¶ 30. Two rules of construction laid down, viz., in case of conflict between the right of the individual
and the laws aiming to implement socio-economic policies in pursuance of Directive
Principles, weightage should be given to the latter and every legislation enacted in pursuance
33
Lokniti Foundation v. Union of India & Ors, WP(C) No.612/2011.
34
35
36
V. Markandeya v. State of A.P., AIR 1989 SC 1308.
37
Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore, AIR 1970 SC 2042.
38
Pathumma v. State of Kerala, (1978) 2 SCC 1.
39
Papanasam Labour Union v. Madura Coats Ltd., (1995) SCC 1501.
40
Air India Statutory Corp. v. United Labour Union, AIR 1997 SC 645.
41
Art. 37, The Constitution of Indiana.
42
State of Gujrat v. Mirazpur Moti Kureshi Kassab Jamat, AIR 2006 SC 212.

of Directive Principles should be construed as one purporting to be in ‘public interest’ or as a

reasonable restriction on the Fundamental Rights.43
[2.4.1.] THE PEHCHAN SCHEME SAFEGUARDS RIGHT TO IDENTITY.
¶ 31. It is most humbly submitted before the Hon’ble Republic court of Indiana that The Pehchan
Scheme safeguards right to Identity under Article 21.44 In K.S.Puttaswamy v. Union of India,45
Justice Chandrachud in his dissenting judgement stated that, Article 21- Right to identity,
laudable role of Aadhar for those who cannot otherwise access any other method of
identification. Having an individual identity is an important part of human condition. The
negation of identity is the loss of personhood, which in turns affects the freedom of choice and
free will. Personhood constructs democracy. Decided cases have recognised the intimate
relationship between human liberty and identity. The traveller in Maneka Gandhi v. Union of
India46, The employee complaining of sexual harassment in Vishakha v. state of Rajasthan47,
The guardian of the minor in Githa Hariharan v. RBI,48 the bar employee in Anuj Garg v.
Hotel Assn. Of India49, The transgender community in National Legal Service Authority of
India v. Union of India50, the tribal worker in Madhu Kishwar v. State of Bihar51 and the
oppressed victim of state violence in Nandini Sundar v. state of Chhattisgarh52 recognises the
role of the individual as “ the core of constitutional focus” and “ the focal point of the
constitution” 53
¶ 32. In the case of National Legal Service Authority v. Union of India54, The Court held that breach
of right to privacy can be claimed only when claimants on the facts of the particular case and
circumstances have “ reasonable expectation of privacy” An individual in interaction with
society or while interacting with his close relatives naturally gives and reveals his several
information e.g.- his name, age, date of birth, residential address etc. In giving such information
43
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845; See also: State of Bihar v. Kameshwar Singh, AIR 1952
SC 252, Bijoya Lakshmi Cotton Mills v. State of West Bengal, AIR 1967 SC 1145.
44
Constitution of Indiana.
45
KS Puttaswamy v. Union of India, (2019) 1 SCC 1.
46
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
47
Vishakha v. State of Rajasthan, (1997) 6 SCC 228.
48
Githa Hariharan v. RBI, 1999-LL-0217-3.
49
Anuj Garg v. Hotel Assn. Of India, (2008) 3 SCC 1.
50
National Legal Service Authority of India v. Union of India, (2014) 5 SCC 438.
51
Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125.
52
Nandini Sundar v. State of Chattisgarh, (2011) 7 SCC 547.
53
K.S. Puttswamy v. Union of India, (2017) 10 SCC 1.
54
National Legal Service Authority v. Union of India, (2014) 5 SCC 438.

there is no reasonable expectation of privacy. Thus, the demographic information required to

be given in the process of enrolment does not violate any right to privacy. 55
¶ 33. Doctrine of Harmonious Construction will apply in the instant case, according to this rule, a
statute should be read as a whole and one provision of the Act should be construed with
reference to other provisions in the same Act so as to make a consistent enactment of the whole
statute. This principle is expressed in the maxims Generalia specialibus non derogant, and
Generalia specialibus derogant. The former means that general things do not derogate from
special things and the latter means that special things derogate from general things. 56 It also
states that, The courts must avoid a head on clash of seemingly contradicting provisions and
they must construe the contradictory provisions so as to harmonize them. 57
¶ 34. The rule of harmonious construction can also be used for resolving a conflict between a
provision in the Act and a rule made under the Act. 58 Further this principle is also used to
resolve a conflict between two different Acts. 59 In the instant case too, Right to privacy and
Right to life/ Right to identity, must harmonize in such a way that they should not be
intermingled in order to create a conflict. Therefore, The said Ordinance and Regulation shall
not be declared unconstitutional as it is safeguarding the Right to life, Right to live with dignity
by providing schemes, subsidies and benefits through the Pehchan Databse and also providing
a Unified mode of Identification to a person.
¶ 35. The Pehchan scheme also satisfies the test of proportionality laid down in KS Puttaswamy v.
Union of India60 i.e. Firstly there should be a law, which is present in the case in hand as
Ordinance itself is a law under article 13, secondly there should be legitimate state interest,
here Pehchan project was brought to provide a unified mode of identification and was made
compulsory for obtaining PAN to prevent corruption and thirdly the measure taken should be
proportionate, which is satisfied by the Pehchan Ordinance and Regulation. In the case KS.
Puttaswamy v. Union of India61, it was held that legitimate state interest which imposes the
restrictions falls within the zone of reasonableness mandated by article 14. Therefore, the said
Ordinance and Regulation is constitutional.
55
56
OSBORN’S law Dictionary.
57
CIT v. Hindustan Bulk Carriers, (2003) 3 SCC 57, p. 74.
58
Collector of Central Excise Jaipur v. Raghuvar (India) Ltd., JT 2000 (7) SC 99, p. 111 (Section 11A of the
Central Excise Act and Rule 57-I of the Rules).
59
Iridium India Telecom Ltd. v. Motorola Inc, (2005) 2 SCC 145, pp. 163, 164.
60
61

[3] THAT THE PUBLIC ENTITIES HAVE THE RIGHT TO KEEP ANY
PERSONAL/SENSITIVE INFORMATION AND BIO-METRIC DATA OF CITIZENS
OF THE REPUBLIC OF INDIANA AND THE PRIVATE ENTITIES WILL BE
LIABLE IN CASE OF BREACH OR LEAKAGE OF PERSONAL AND SENSITIVE
INFORMATION OF CITIZEN OF REPUBLIC OF INDIANA.
¶ 36. The counsel for the Respondent most humbly submits before the Hon’ble Republic Court of
Indiana that public entities have right to keep any personal/ sensitive information and bio-
metric data of citizens of the Republic of Indiana and in case of breach or leakage of personal
and sensitive information of citizen of Republic of Indiana the state/public entity will not be
liable for it.
[3.1.] THE PUBLIC ENTITY IS ANY STATE OR LOCAL GOVERNMENT AND HAS THE RIGHT TO
KEEP PERSONAL AND SENSITIVE INFORMATION OF THE CITIZENS.
¶ 37. It is most humbly submitted before the Hon’ble Republic court of Indiana that In Ajay Hasia v.
Khalid Mujib62 the Hon’ble Supreme Court laid down following test to adjudge whether a body
is instrumentality of government/state or is privately owned: -
Firstly, If the entire share capital of the body is held by the government it goes towards
indicating that the body is instrumentally government. Secondly, whether financial assistance
given by the government is so large as to meet almost entire expenditure of the body, it may
indicate that the body is impregnated with governmental character. Thirdly, it bis relevant
factor if a body enjoys monopoly status which is conferred or protected by the state. Fourthly,
Existence of deep and pervasive state control may afford an indication that the body is a state
instrumentally. Fifthly, If the functions performed by the body are of public importance and
closely related to governmental functions it is relevant factor to treat the body as an
instrumentality of government.
¶ 38. In the case, Rajasthan SEB v. Mohan Lal 63 it was said:
62
Ajay Hasia v. Khalid Mujib, (1981)1 SCC 722, See also: Sandeep Biswas v. State of West Bengal, (2010)2
WBLR(Cal)216.
63
Rajasthan SEB v. Mohan Lal, (1967) 3 SCR 377.

“The State, as defined in Article 12, is thus comprehended to include bodies created
for the purpose of promoting the educational and economic interests of the
people.”64
¶ 39. Public entities are state as defined in article 12 of the constitution and therefore they have the
right to keep information personal/sensitive for the purpose of promoting the educational and
economic interest of the people.
¶ 40. In the case, Gobind v. State of M. P65. it was held: “Assuming that the fundamental rights
explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a
fundamental right, that fundamental right must be subject to restriction on the basis
of compelling public interest.”
¶ 41. In the case, PUCL v. Union of India66 “the Court has recognised data retention by the
Government which may be necessitated in the public interest and in the interest of national
security and has approved the recommendation of the high powered committee headed by
Justice D.P.Wadhwa which recommended linking of Aadhar with PDS and encouraged the
state government to adopt the same. The Court also lauded the efforts for using bio-metric
information.
¶ 42. In the case, Gobind v. State of M.P.,67 it was held: “The right to privacy in any event will
necessarily 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.”
[3.1.1.] DATA COLLECTED UNDER THE PEHCHAN ACT IS TO SERVE THE LEGITIMATE STATE
INTEREST THEREFORE PUBLIC ENTITIES HAVE THE RIGHT TO COLLECT PERSONAL AND
SENSITIVE INFORMATION OF THE CITIZEN OF REPUBLIC OF INDIANA.
¶ 43. It is most humbly submitted before the Hon’ble Republic court that, in the case K.S.
Puttaswamy v. Union of India68 judgment, it was stated that: “Apart from national security, the
State may have justifiable reasons for the collection and storage of data. In a social welfare
64
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, p. 135 (2002) 5 SCC.
65
Gobind v. State of M.P, p.157, ¶ 31, (1975) 2 SCC.
66
PUCL v. Union of India, (1997) 1 SCC 301.
67
Gobind v. State of M.P, p. 157, ¶ 31, (1975) 2 SCC.
68
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. ¶ 311.

State, the Government embarks upon programmes which provide benefits to impoverished and
marginalized sections of society. There is a vital State interest in ensuring that scarce public
resources are not dissipated by the diversion of resources to persons who do not qualify as
recipients. Allocation of resources for human development is coupled with a legitimate concern
that the utilization of resources should not be siphoned away for extraneous purposes. Data
mining with the object of ensuring that resources are properly deployed to legitimate
beneficiaries is a valid ground for the State to insist on the collection of authentic data. But the
data which the State has collected has to be utilized for legitimate purposes of the State and
ought not to be utilized unauthorizedly for extraneous purposes. This will ensure that the
legitimate concerns of the State are duly safeguarded while, at the same time, protecting
privacy concerns. Prevention and investigation of crime and protection of the revenue are
among the legitimate aims of the State. Digital platforms are a vital tool of ensuring good
governance in a social welfare State. Information technology—legitimately deployed is a
powerful enabler in the spread of innovation and knowledge.” 69
[3.1.2.] INCOME TAX DEPARTMENT OF THE REPUBLIC OF INDIANA MADE MANDATORY TO

PRESENT PEHCHAN NO. FOR OBTAINING PAN (PERMANENT ACCOUNT NUMBER)
CONTINUE VALIDITY OF A PERSON’S PAN AND FILING ONE’S RETURN OF INCOME UNDER
INCOME TAX ACT IS JUSTIFIED.
¶ 44. It is most humbly submitted before the Hon’ble Republic court of Indiana that Section 139-AA
of the Income Tax Act, 1961 seeks to safeguard the following interest:
“To prevent income tax evasion by requiring, through an amendment to the Income Tax Act,
that the Aadhaar number be linked with the PAN.”70
¶ 45. Parliament, considering the “legitimate State interest” as well as the “larger public interest” has
now introduced Section 139-AA which is only an extension of Section 139-A which requires
linking of PAN number with Aadhaar number which is issued under the Act for the purpose of
eliminating duplicate PANS from the system with the help of a robust technology solution.
Therefore, those who have PAN number and have already provided the information required to
get PAN number cannot claim to have any legitimate expectation of withholding any data
required for Aadhaar under the ground of “privacy”.71
69
K.S. Puttaswamy v. Union of India, p. 467 (2019) 1 SCC 1.
70
K.S. Puttaswamy v. Union of India, p.460 (2019) 1 SCC 1.
71
K.S. Puttaswamy v. Union of India, p.146 (2019) 1 SCC 1.

¶ 46. As stated in the aforementioned paragraphs, Public entity is any state and local government and
is managed by state or local government. In K.S. Puttaswamy v. Union of India,72 It was held
that state has the right to keep any personal information and bio-metric data of citizens of the
republic of Indiana for ensuring national security or for achieving a legitimate state aim and all
these conditions are satisfied by Pehchan programme. Wherefore the Respondent humbly
submits that collection of personal data by State/ Government is justified.
[3.2.] STATE/ PUBLIC ENTITIES WILL NOT BE LIABLE IN CASE OF BREACH OR LEAKAGE OF
PERSONAL OR SENSITIVE INFORMATION.
¶ 47. It is most humbly submitted before the Hon’ble Republic court of Indiana that Section 32(3) of
the Aadhaar Act 2016 specifically prohibits UIDAI from controlling, collecting, keeping or
maintaining any information about the purpose of authentication either by itself or through any
entity.73
¶ 48. Under the Aadhar Act, usage of Aadhaar number for establishing the identity of an individual,
by the State or a body corporate under any law, is permitted. The Ordinance removes this
provision. An entity may be allowed to perform authentication through Aadhaar, “ only if ”
the UIDAI is satisfied that it is: (i) compliant with certain standards of privacy and security, or
(ii) permitted by law, or (iii) seeking authentication for a purpose specified by the central
government in the interest of the State.74.
[3.2.1.] STRONG MEASURES FOR DATA PROTECTION AND SECURITY IS TAKEN.
¶ 49. It is most humbly submitted before the Hon’ble Republic court of Indiana that Unauthorized
sharing of sensitive personal information75 attracts liability to compensate under the
Information Technology Act, 2000.76 The Petitioner’s concern that leaked data from
Pehchaan database can be misused by the private companies has been also made good by way
of Section 43 of the Act which deals with offenses by companies. Provisions for penalty for
unauthorized access to the Pehchaan database like hacking, downloading, copying,
72
KS Puttaswamy v. Union of India, (2019) 1 SCC 1.
73
11 questions on Aadhar and its misuse, answered by the UIDAI, The Economic Times (27/01/2018),
//economictimes.indiatimes.com/articleonshow/62538926.cms?from=mdr&utm_source=contentofinterest&utm
_medium=text&utm_campaign=cppst, (last seen 01/09/2019).
74
Aadhar and Other Laws (Amendment) Bill, 2019 (passed).
75
Section 30, Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
76
Section 43A, Information Technology Act, 2000.

extracting, introducing any virus or other computer contamination, damaging, etc. have been
provided.77
¶ 50. Moreover, none of the world’s legal system can ensure a crimeless society. 78 What is important
is that the law provides for adequate measures to prevent such instances of crime and the
political community considers the rules as binding upon them.79
¶ 51. In K.S. Puttaswamy80 case, it was stated by the Respondents that strong measures for data
protection and security are taken at all levels, Regulations 3(i) & (j) of the Aadhaar (Data
Security) Regulations, 2016 enables partitioning of CIDR network into zones based on risk and
trust and other security measures. CIDR being a computer resource is notified to be a “Protected
System” under Section 70 of the IT Act, 2000 by the Central Government on 11-12-2015. The
storage involves end-to-end encryption, logical partitioning, firewalling and anonymisation of
decrypted biometric data. Biometric information is deemed to be an “electronic record”, and
“sensitive personal data or information” under the IT Act, 2000.81
¶ 52. After going through the Aadhaar structure, as demonstrated by the Respondents in the power
point presentation from the provisions of the Aadhaar Act and the machinery which the
Authority has created for data protection, it is very difficult to create profile of a person simply
on the basis of biometric and demographic information stored in CIDR. In the case K.S.
Puttaswamy v. Union of India82 it was held that “To recapitulate, it was specifically submitted
that there were security technologies in place (slide 28 of Dr Pandey's presentation), 24/7
security monitoring, data leak prevention, vulnerability management programme and
independent audits (slide 29) as well as the Authority's defence mechanism (slide 30). The
Respondents also pointed out that all security principles are followed inasmuch as: there is
PKI-2048 encryption from the time of capture, meaning thereby, as soon as data is given at the
time of enrolment, there is an end-to-end encryption thereof and it is transmitted to the
Authority in encrypted form.”83
77
Section 38, Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
78
John Austin, The Province of Jurisprudence Determined, 90, (Richard Taylor, London, 1 st edition, 1832).
79
Stephen Hall, The Persistent Spectre: Natural Law, International Order and Limits of Legal Positivism Vol.
12(2), European Journal of International Law, 269, 270 (2002).
80
81
K.S. Puttaswamy v. Union of India, pg.352, (2019) 1 SCC 1.
83
K.S. Puttaswamy v. Union of India, pg.333, (2019) 1 SCC 1.

[3.3.] PRIVATE ENTITIES ARE LIABLE FOR LEAKAGE OF PERSONAL AND SENSITIVE
INFORMATION.
¶ 53. It is most humbly submitted before the Hon’ble Republic court of Indiana that Sensitive
personal information means such personal information as may be prescribed by the central
Government in consultation with such professional bodies or associations as it may deem fit. 84
¶ 54. Under Pehchan` (Pricing of Pehchan Authentication Services) Regulations,2019, private

entities sub-worked their responsibility to other private entities/parties to make profit which
result in leakage of personal information of the citizen. 85
¶ 55. A reference is also invited to the provisions of Section 43A of the Information Technology Act,
2000 and the Information Technology (Reasonable Security Practices and Procedures and
Sensitive personal data or information Rules, 2011 framed under that Act, which, inter alia,
gives protection to Sensitive personal data or information of customers of body corporates.
Rule 5(5) of those rules, provide that information collected shall be used for the purpose for
which it has been collected.86
[3.3.1.] DELEGATION OF AUTHORITY TO PRIVATE ENTITIES FOR COLLECTION OF

DATA.
¶ 56. It is most humbly submitted before the Hon’ble Republic court of Indiana that The contention
raised by the Petitioner that the collection of data is done by Public entities, hence making it
insecure holds no ground as under the Aadhaar Act, government obliges the authorities and
private agencies appointed for the purpose to have in place appropriate technical and
organisational security measures for the information87 as well as not to reveal such data
collected to anyone. 88
¶ 57. Also, it is not possible for the state to employ manpower to such large extent for the collection
of data due to lack of resources, therefore the delegating of such responsibility by the
authority to private entities who have expertise in the field is reasonable and valid. Such
Public Private Partnerships has been relied upon in several countries to reduce the broad
public sector constraints in relation to either lack of public capital or public sector capacity,
84
Sandeep Singh Jadon v. Central Public Information Officer, DGET 2015 SCC OnLine CIC 1664.
85
P.4, 9th FYLC- Ranka Memorial National Moot Court Competition, 2019.
86
Sandeep Singh Jadon v. Central Public Information Officer, DGET 2015 SCC OnLine CIC 16647.
87
S.28(4)(c), Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
88
S.28(5), Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

resources or specialised expertise to develop, manage and operate infrastructure assets. 89 In

this regard, it is also imperative to note that the delegation of authority to various private
agencies by the state, arises from the various functions of the state which is necessary in the
modern context, in response to the changing needs of the society.
¶ 58. As stated by K.S. Puttaswamy90 case and according to section 43 A of IT Act, there was no
leakage of information by the public entities, information are given by public entities to private
entities for fulfilling certain public interest and it is the private party which after accessing
information from public entities sub-worked their responsibility to other private entities/parties
to make profit which result into leakage and as stated in section 43 A of the IT Act personal
information leaked or lost by government agencies will not be covered under the said section
and the said section will be applied only to corporate bodies, hence the Respondent humbly
submit before the Hon’ble Republic Court of Indiana that Public entity have the right to Keep
any personal information and bio-metric data of the citizens as stated in and leakage of
information as stated in the case in hand, is not due to negligence of the public entity, it is the
private entity who should be held liable for leaking personal and sensitive information of the
citizens of Republic of Indiana.
89
Akintola Akintoye, Mattihias Beck and Mohan Kumaraswamy, Public Private Partnerships: A Global
Review, (Routledge, Taylor and Francis Group, London and New York, 25th edition, 2015).
90

[4] THAT PERMITTING THE PEHCHAN DATABASE TO LINK WITH THE

PREVENTION OF MONEY LAUNDERING ACT, 2002 AND SECTION 4 OF THE
INDIAN TELEGRAPH ACT, 1885, DO NOT POSE A GRAVE THREAT TO
NATIONAL SECURITY AFTER THE PEHCHAN AND OTHER LAWS
(AMENDMENT) ORDINANCE, 2019.
¶ 59. It is humbly submitted before the honourable Court that the linking of the current database of
services under section 4 of Indian telegraph act 1858 and chapter IV of the prevention of money
laundering act, 2002 with Pehchan database do not pose a grave threat to national security as
the data is secured by the best possible means and measures.
[4.1.] THE AUTHENTICATION PROCESS UNDER PEHCHAN AND OTHER LAWS (AMENDMENT)
ORDINANCE, 2019 IS A SAFE PROCESS.
¶ 60. It is humbly submitted before the honourable Court that in K.S. Puttaswamy v. Union of
India,91it was held that national security is not a question of law, it is a matter of policy which
has to be dealt by the executive hence court should not interfere in the matter of national
security and to maintain national security, authentication and verification is an urgent
requirement. We need to understand that “privacy is the terrorist's best friend”. It was held in
the case K.S. Puttaswamy v. Union of India92 that the enrolment and authentication processes
are strongly regulated so that data is secure. Authentication only becomes available through
the Authentication Service Agency (ASA). They are regulated by the Aadhaar (Authentication)
Regulations, 2016. Their role and responsibilities are provided by Regulation 19 of the
Authentication Regulations. They are to use certified devices. The Act prohibits sharing and
disclosure of core biometric data under Sections 8 and 29. Other identity information is shared
with Requesting Entity (AUAs and KUAs) only for the limited purpose of authentication 93.
¶ 61. It was held in the K.S. Puttaswamy v. Union of India94 case that Insofar as authentication is
concerned, there were security technologies in place presentation), 24/7 security monitoring,
91
K.S.Puttaswamy v. Union of India, (2017) 10 SCC 1
92
93
94

data leak prevention, vulnerability management programme and independent audits) as well as
the Authority's defence mechanism). It was further pointed out that the Authority has taken
appropriate proactive protection measures, which included disaster recovery plan, data backup
and availability and media response plan. In S.G. Vombatkere v. Union of India95 it was said
that UIDAI does not identify the persons it only matches the biometric information received at
the time of authentication with its records and provides a Yes/No response 96. Hence the claim
by the Petitioners is baseless because the authentication process does not even identify the
person it just matches the information to confirm the identity.
¶ 62. In the case G. Sundarrajan v. Union of India97, the Court noted the safety and security risk in
the setting up of the nuclear power plant in the backdrop of Fukushima disaster and Bhopal
Gas tragedy. In the directions of the Court, it was observed that “maintaining safety is an
ongoing process not only at the design level but also during the operation” 98. In the present
case as well, we have come to the conclusion that the Aadhaar Act is a beneficial legislation
which is aimed at empowering millions of people in this country.
¶ 63. In the case Binoy Viswam v. Union of India99 it was said that:
“By making use of the technology, a method is sought to be devised, in the form of
Aadhaar, whereby identity of a person is ascertained in a flawless manner without
giving any leeway to any individual to resort to dubious practices of showing
multiple identities or fictitious identities. That is why it is given the nomenclature
“unique identity”.
¶ 64. So, in the purview of the case we can say that linking of Pehchan database with the current
services do not pose a threat to the national security as this done to make sure that each person
is identified without any duplication so that “needs reaches to the needy”. The basic purpose
of this authentication process is to provide security not to violate it.
[4.2.] THE LINKING OF PEHCHAN DATABASE WITH THE PREVENTION OF MONEY LAUNDERING
ACT IS TO CURB MONEY LAUNDERING AND TO SAFEGUARD NATIONAL SECURITY.
¶ 65. It is humbly submitted before the honourable Court that to protect the republic of Indiana from
the menace of money laundering the government decided to link Pehchan database to the
95
S.G. Vombatkere v. Union of India, W.P. (C) No. 829 of 2013.
96
97
G. Sundarrajan v. Union of India, (2013) 6 SCC 620. See Also: Narmada Bachao Andolan v. Union of India
(2000) SCC 664.
98
G. Sundarrajan v. Union of India, (2013) 6 SCC 620.
99
Binoy Viswam v. Union of India, (2017) 7 SCC 59.

services under chapter IV of PMLA, 2002100. The Pehchan and other laws (Amendment)
Ordinance, 2019 inserted section 11-A which says that. (1) Every Reporting Entity shall verify
the identity of its clients and the beneficial owner, by— (a) authentication under the Aadhaar
(Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016101 if the
reporting entity is a banking company. Linking of the Pehchan database is required to curb the
menace of fraud bank accounts and duplication of fraud bank accounts. In the case Binoy
Viswam v. Union of India102 held that the new Section 139-AA in the Income Tax Act seeks to
remove bogus pan cards by linking with Aadhaar, expose shell companies and thereby curb the
menace of black money, money-laundering and tax evasion. Similarly, it is important for the
reporting entity to link the Pehchan database and use the authentication process so every time
an individual try to do a fake transaction or open a fake bank account or tries to evade tax all
of which curb the national security can be punished according to the law.
¶ 66. For your own security, it is necessary to verify identity of all bank account holders and link
them with Aadhaar to weed out the accounts being operated by fraudsters, money-launderers,
criminals etc. When every bank account is verified and linked with Aadhaar and then If anyone
fraudulently withdraws money from your account, through Aadhaar such fraudster can easily
be located and punished. Therefore, by linking your bank accounts with Aadhaar, your
accounts become more secure and not the other way around103.
[4.3.] THE LINKING OF PEHCHAN DATABASE WITH SERVICES PROVIDED UNDER INDIAN
TELEGRAPH ACT 1885 HAS THE FORCE OF LAW.
¶ 67. The learned counsel for the Respondents justifying the linking of Pehchan with SIM card
submits that non-verifying SIM cards, have caused serious security threats, which has been
noticed by this Court in several judgments. The Respondents submits that the decision to link
the Pehchan database with the current database has the force of law. The law as explained in
Article 13(3) has to be applied for finding out as to what is law. “13. (3)(a) “law” includes any
Ordinance, order, byelaw, rule, regulation, notification, custom or usage having in the territory
of India the force of law104.
100
Prevention of Money Laundering Act, 2002.
101
The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016.
102
Binoy Viswam v. Union of India, (2017) 7 SCC 59.
103
Aadhar: Frequently Asked Questions, Available at:
https://uidai.gov.in/images/recently_asked_ques_13012018.pdf (last seen on: 01/09/2019).
104
Art.13 (3), The Constitution of Indiana.

¶ 68. Article 13 include even notification and in it was verified in the Lokniti Foundation v. Union
of India105 This Court having approved the action and said It is submitted that the Central
Government, which has right to grant license can always put a condition in the licence obliging
the licensee to verify the SIM cards under the Aadhaar verification. To impose such condition
is in the statutory power granted to the Government under Section 4 of the Telegraph Act,
1885106.
¶ 69. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi107, was relied on, where this Court
held that rules and regulations framed by ONGC, LIC and Industrial Finance Corporation have
the force of law. There cannot be any denial that rules framed under statutory provisions will
have force of law. Similarly, reliance on Lily Kurian v. Lewina108, Maharashtra State Board
of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth 109 , St. Johns
Teachers Training Institute v. NCTE 110 were all cases, where conditions were laid down under
the Regulations, which were statutory in nature. Similarly, as held by the Hon’ble Supreme
Court in the case Lokniti Foundation v. Union of India111 the decision to link Pehchan database
is under the regulation which is statutory in nature and since such decision is regulated and
supported by the Supreme Court there is surely no threat to national security.
¶ 70. Therefore, it is necessary to verify identity of all mobile subscribers & link them with Aadhaar
to weed out mobile numbers being operated by fraudsters, money-launderers, criminals etc. It
has been found that most criminals and terrorists get SIM cards issued in the name of fictitious
and even real people without their knowledge and use them for committing frauds & crime.
When every mobile number is verified and linked with Aadhaar, then fraudsters, criminals, and
terrorists using mobiles can be easily identified and punished in accordance with law 112
105
Lokniti Foundation v. Union of India, (2017) 7 SCC 155. See also: Avishek Goenka v. Union of India (2012)
5 SCC 275.
106
Indiana Telegraph Act, 1885.
107
Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421.
108
Lily Kurian v. Lewina, (1979) 2 SCC 124.
109
Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth,
(1984) 4 SCC 27.
110
St. Johns Teachers Training Institute v. NCTE, (2003) 3 SCC 321.
111
Lokniti Foundation v. Union of India, (2017) 7 SCC 155.
112
AADHAAR: Frequently .Asked Questions, available
at:https://uidai.gov.in/images/recently_asked_ques_13012018.pdf (last seen on: 01/09/2019).

[5] THAT THE CURRENT DATA PROTECTION METHODS ADOPTED BY THE

GOVERNMENT PREVENTS CYBER THREATS UNDER IT ACT, 2000.
¶ 71. It is humbly submitted before the hon’ble Court that the current data protection methods adopted
by the government prevents cyber threats under the IT Act,2000 through sections 33, 66C and
72-A.
[5.1.] INFORMATION CAN BE DISCLOSED AND ADDITIONAL SAFEGUARD IS THERE.
113
¶ 72. It is humbly submitted before the honourable Court that in the case UIDAI v. CBI It was
held that Adverting to sub-section (2) of Section 33114, it can be seen that this provision enables
disclosure of information including identity information records in the interest of national
security. This provision further states that the Authority is obliged to disclose such information
in pursuance of a direction of an officer not below the rank of Joint Secretary to the Government
of India specially authorised in this behalf by an order of the Central Government. Proviso
thereto sub-section (2) puts an additional safeguard by prescribing that every direction issued
under this sub-section shall be reviewed by an Oversight Committee consisting of the Cabinet
Secretary and the Secretaries to the Government of India in the Department of Legal Affairs
and the Department of Electronics and Information Technology before it takes effect.115
Therefore taking into consideration the above measures adopted in storing and revealing the
information of an individual it can be said that the data protection policy gives us the required
safeguard.
[5.1.1.] SECTION 66-C OF IT ACT,2000 DEALS WITH IDENTITY THEFT AND PUNISHES THE
DISHONEST OR FRAUDULENT USE OF THE UNIQUE IDENTIFICATION FEATURE OF A PERSON.
¶ 73. It is most humbly submitted before the Hon’ble Republic Court of Indiana that Sec 66-
C.116 Punishment for identity theft—Whoever, fraudulently [ Section 25, the Penal Code states
“. “Fraudulently”—A person is said to do a thing fraudulently if he does that thing with intent
to defraud but not otherwise.] or dishonestly [Section 24, the Penal Code states:
113
UIDAI v. CBI, (2017) 7 SCC 157.
114
S. 33, Aadhar ( Targeted Delivery of Financial and other subsidies, benefits and Services) Act, 2016.
115
K.S. Puttaswamy v. Union of India, p.421, (2019) 1 SCC 1.
116
S.66C, IT Act,2000.

“Dishonestly”.—Whoever does anything with the intention of causing wrongful gain to one
person or wrongful loss to another person, is said to do that thing “dishonestly”] make use of
the electronic signature, password or any other unique identification feature of any other
person, shall be punished with imprisonment of either description for a term which may extend
to three years and shall also be liable to fine which may extend to rupees one lakh.” 117
¶ 74. G. Sundarrajan v. Union of India118 In this case, the Court noted the safety and security risk in
the setting up of the nuclear power plant in the backdrop of Fukushima disaster and Bhopal
Gas tragedy. Yet, keeping in view the importance of generation of nuclear energy, the Court
observed that a balance should be struck between production of nuclear energy which was of
extreme importance for the economic growth, alleviation of poverty, generation of
employment, and the smaller violation to right to life under Article 21. Apprehension, however
legitimate it may be, cannot override the justification of the project. Nobody on this earth can
predict what would happen in future and to a larger extent we have to leave it to the destiny.
But once the justification test is satisfied, the apprehension test is bound to fail. Apprehension
is something we anticipate with anxiety or fear, a fearful anticipation, which may vary from
person to person. The Court also held that: Nuclear power plant is being established not to
negate right to life but to protect the right to life guaranteed under Article 21 of the
Constitution.”119
[5.1.2.] CURRENT DATA PROTECTION PREVENTS CYBER THREATS UNDER THE IT ACT,2000.
¶ 75. It is humbly submitted before the Hon’ble Republic Court of Indiana that In K.S.Puttaswamy
v. Union of India,120 The Respondent assured data protection by stating: CIDR Regulations
3(i) & (j) of the Aadhaar (Data Security) Regulations, 2016: enables partitioning of CIDR
network into zones based on risk and trust and other security measures. CIDR being a computer
resource is notified to be a “Protected System” under Section 70 of the IT Act, 2000 by the
Central Government on 11-12-2015. Requesting Entities (AUA and KUA): Other identity
information is shared with Requesting Entity (AUAs and KUAs) only for the limited purpose
of authentication. The data is transferred from the RE to the ASA (Authentication Service
Agency) to the CIDR in an encrypted manner through a leased line circuitry using Secure
117
K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1. P. 905.
118
G. Sundarrajan v. Union of India, (2013) 6 SCC 620.
119
K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1. p.356.
120
K.S.Puttswamy v. Union of India, (2019) 1 SCC 1.

Protocols (Regulation 9 of the Authentication Regulations). Enrolment Agencies and

Registrars: The enrolment and authentication processes are strongly regulated so that data is
secure. The Enrolment Agency, which collects the biometric and demographic of the
individuals during enrolment, is appointed either by UIDAI or by a Registrar [Section 2(s)]. The
enrolment data is uploaded to the Central Identities Data Repository (CIDR) certified
equipment and software with a digital signature of the Registrar/enrolling agency. The data is
encrypted immediately upon capture. The decryption key is with UIDAI solely. Section 2(ze)
of the IT Act, which defines “secure systems” and Section 2(w) of the Act, which defines
“intermediaries” apply to the process. Authentication Service Agency: Authentication only
becomes available through the Authentication Service Agency (ASA). They are regulated by
the Aadhaar (Authentication) Regulations, 2016. Hacking: As far as hacking is concerned, the
Respondents submit that the authority has involved adequate firewalling and other safety
features. The biometric data stored in the CIDR is stored offline. Only templates are online. So
far there has been no incidence of hacking.
¶ 76. Thus, on the basis of the arguments and cases stated the Respondent humbly submits before
this Hon’ble Court of Republic of Indiana that the current data protection methods adopted by
the government prevents cyber threats under the IT Act under 66 C which prevents theft of
information and 43 A which covers data protection and attaches liability to a corporate firm
thereby preventing private entity from misusing personal and sensitive information of the
citizens.
[5.2.] THAT DATA PROTECTION METHODS ADOPTED PREVENTS CYBER THREATS.
¶ 77. It is most humbly submitted before the Hon’ble Court of the Republic of Indiana that
appropriate methods have been adopted by the government to prevent cyber threats under IT
Act, 2000 since despite a data protection bill, not being implemented there is a legal framework
under the Information Technology Act 2000.
¶ 78. There are various provisions under the Aadhar Act, 2016 such as Section 28, 29, 30, 31 and 32
dealing with the issue of authentication and as to which authority shall be held liable in case a
body corporate damages, denies, destroys or deletes data authenticated under UIDAI scheme
and the Information Technology Act, 2000 dealing with the issue of data protection and
authentication.

¶ 79. Rule 2(i) of the Sensitive Personal Data Rules121, defines “personal information” to mean any
information that relates to a natural person, which, either directly or indirectly, in combination
with other information available or likely to be available with a body corporate, is capable of
identifying such person. Thus, biometrics will form a part of “personal information”.
¶ 80. Section 72-A of the IT Act makes intentional disclosure of “personal information” obtained
under a contract, without consent of the parties concerned and in breach of a lawful contract,
122
punishable with imprisonment and fine. Henceforth, it covers the issue of confidentiality
and privacy in the area of “personal and sensitive” information.
¶ 81. India’s most comprehensive data protection standards are found in IT Act, 2000 and IT
(Reasonable security practices and procedures and sensitive personal data Information) Rules,
2011. These rules also seek to provide rights to the individual with regards to their Information
and obligate body corporate to take a step towards protecting the privacy of consumer’s
information. Amongst other things, these rules define “sensitive personal information” and
require that any corporate body must publish an online privacy policy, providing individuals
123
with the right to access correct information and obtain consent before disclosing. . Both pre
and post-independence, the legislature has been granting protection to the various facets and
aspect of this “common right to privacy” through statutes enacted by the competent legislature.
¶ 82. Henceforth, in such in view, therefore is no justification to confer a separate constitutional

protection under Part III of constitution by the way of process of judicial interpretation when
it is impossible to lay down any definitions of contours of privacy. 124
121
Information Technology (Information Security Practices and Procedures for Protected Systems) Rules, 2018.
122
Justice Yatindra Singh, Cyber Laws (Lexis Nexis,6th edition, 2016).
123
Serge Gutwirth, Ronald Leenes, Paul de Hert, Yves Poullet, European Data Protection: Coming of Age,
(Springer Publications, 1st edition, 2013).
124
KS Puttaswamy v. Union of India, 2017 1 SCC 1.

PRAYER
Wherefore, in the light of issues raised, arguments advanced and authorities cited, the counsel
for Respondent humbly prays that the Hon’ble Court of Republic of Indiana be pleased to
adjudge, hold and declare that:
1. The writ of Mandamus filed by the petitioner under Article 32 of the Constitution of Republic
of Indiana is not maintainable.
2. The Pehchan and Other (Amendment) Ordinance, 2019 and the Pehchan (Pricing of
Pehchan Authentication Services) Regulations, 2019 is constitutional.
3. The Public Entities have the right to keep any personal/Sensitive information and bio-metric
data of the citizens and the private entities should be held liable for any breach.
4. Linking of the Pehchan database with 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, is constitutional.
5. The Data Protection Laws under the IT Act, 2000 is sound and effective for safeguarding
the personal information of the citizens enrolled under the Pehchan database.
And/ or
Pass any other Order, Direction, or Relief that it may deem fit in the Best interest of
Justice, Fairness, Equity and Good Conscience.
For This Act of Kindness, the counsel for the Respondent shall duty bound forever pray.
Sd/-
(Counsel for the Respondent)
MEMORIAL ON BEHALF OF THE RESPONDENT XV

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9TH FYLC- RANKA NATIONAL MOOT COURT COMPETITION, 2019

9TH FYLC- RANKA NATIONAL MOOT COURT COMPETITION, 2019.

BEFORE THE HON’BLE REPUBLIC COURT OF INDIANA

[UNDER ARTICLE 32 OF CONSTITUTION OF INDIANA]

JAGRUK LAW STUDENTS ASSOCIATION & ORS.

REPUBLIC OF INDIANA & ORS.

SUBMISSION BEFORE THE HONOURABLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE REPUBLIC COURT

MEMORIAL ON BEHALF OF THE RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT I

SUMMARY OF ARGUMENTS………………………………………………..… XIII-XIV

[1.3] That there is no violation of Fundamental Rights………………………….………......2

[2.4.] Reasonable restrictions can be imposed on Fundamental Rights to give effect to

MEMORIAL ON BEHALF OF THE RESPONDENT II

[4.1] That Authentication process under the Ordinance is a safe process………….............18

[5.1.] Information can be disclosed and additional safeguard is there……………………..22

MEMORIAL ON BEHALF OF THE RESPONDENT III

S.NO ABBREVIATION EXPANSION

MEMORIAL ON BEHALF OF THE RESPONDENT IV

MEMORIAL ON BEHALF OF THE RESPONDENT V

27) K.S.Puttaswamy v. U.O.I, 1 SCC 1 (2019) ……………………………. 4, 9, 10, 13, 14

MEMORIAL ON BEHALF OF THE RESPONDENT VI

59) T. Venkata Reddy v. State of A.P. (1985) 3 SCC 198……………………………….......3

LEGAL DATABASES REFERRED

1. Manupatra Online Resources, http://www.manupatra.com.

2. Lexis Nexis Academica, http://www.lexisnexis.com/academica.

3. SCC Online, http://www.scconline.co.in.

4. Oxford Dictionary, http://www.oxforddictionaries.com.

5. Supreme Court of India, http://supremecourtofindia.nic.in/.

7. Hein Online, http://home.heinonline.org/.

1. Black’s Law Dictionary, 7th Ed. (1999).

MEMORIAL ON BEHALF OF THE RESPONDENT VII

2. H.M. Seervai, Constitutional Law of India: A Critical Commentary, (Universal Law

5. Granville Austin, Cornerstone of a Nation (Indian Constitution), Volume 75 (Oxford India,

1. Indian Penal Code, 1860………………………………………………………………passim

2. Indian Telegraph Act, 1885……………………………………………………………passim

3. Constitution of India, 1950……………………………………………………………passim

4. The Citizenship Act, 1955……………………………………………………………..passim

5. Income Tax Act, 1961…………………………………………………………………passim

6. Information Technology Act, 2000……………………………………………………passim

7. Prevention of Money Laundering Act, 2002…………………………………………..passim

8. Right to Information Act, 2005………………………………………………………..passim

10. Aadhaar and Other Laws (Amendment) 2019………………………………………..passim

11. Aadhaar (Pricing of Aadhaar Authentication Services) Regulation, 2019…………...passim

MEMORIAL ON BEHALF OF THE RESPONDENT VIII

MEMORIAL ON BEHALF OF THE RESPONDENT IX

PEHCHAN DATABASE AND ITS USAGE

MEMORIAL ON BEHALF OF THE RESPONDENT X

WRIT PETITION FILED AS A PIL.

MEMORIAL ON BEHALF OF THE RESPONDENT XI

WHETHER THE WRIT PETITION FILED BY THE PETITIONER UNDER ARTICLE 32

WHETHER THE PEHCHAN AND OTHER LAWS (AMENDMENT) ORDINANCE,2019

WHETHER PERMITTING THE PEHCHAN DATABASE TO LINK WITH THE

WHETHER THE CURRENT DATA PROTECTION METHODS ADOPTED BY THE

MEMORIAL ON BEHALF OF THE RESPONDENT XII

[2] THAT THE PEHCHAN AND OTHER LAWS (AMENDMENT) ORDINANCE,

MEMORIAL ON BEHALF OF THE RESPONDENT XIII

[4] THAT PERMITTING THE PEHCHAN DATABASE TO LINK WITH THE

[5] THAT THE CURRENT DATA PROTECTION METHODS ADOPTED BY THE

MEMORIAL ON BEHALF OF THE RESPONDENT XIV

MEMORIAL ON BEHALF OF THE RESPONDENT 1

[1.2.] THE WRIT OF MANDAMUS IS NOT MAINTAINABLE IN THE PRESENT PETITION.

[1.3.] THERE IS NO VIOLATION OF FUNDAMENTAL RIGHTS.