32 Writ Petition.docx

UNIVERSITY OF PETROLEUM & ENERGY STUDIES SCHOOL OF LAW BA.LLB. (HONS.) ENERGY LAWS SEMESTER V ACADEMIC YEAR: 2018

SESSION: AUGUST-DECEMBER

DRAFT SUBMISSION Under the Supervision of Mrs. Arpi Jain

SUBMITTED BY: NAME: - DHARMENDRA KUMAR LAMBHA ROLL NO.:- R450216030 SAP ID: - 500054559

IN THE SUPREME COURT OF INDIA AT NEW DELHI EXTRAORDINARY WRIT JURISDICTION (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) WRIT PETITION (CIVIL) NO. _______OF 2017

IN THE MATTER OF:JUSTICE K.S. PUTTASWAMY (RETD.) & ANR. ……….PETITIONER VERSUS UNION OF INDIA & ORS. ……..RESPONDENT WITH T.C. (CIVIL) NO 151 OF 2013 T.C. (CIVIL) NO 152 OF 2013 W.P.(CIVIL) NO 833 OF 2013 W.P.(CIVIL) NO 829 OF 2013 W.P.(CIVIL) NO 932 OF 2013 CONMT. PET. (CIVIL) NO 144 OF 2014 IN W.P.(C) NO. 494/2012 T.P.(CIVIL) NO 313 OF 2014 T.P.(CIVIL) NO 312 OF 2014 S.L.P(CRL.) NO.2524/2014 W.P.(CIVIL) NO.37/2015

W.P.(CIVIL) NO.220/2015 CONMT. PET. (C)NO.674/2015 IN W.P.(C) NO.829/2013 T.P.(CIVIL)NO.921/2015 CONMT.PET.(C)NO.470/2015 IN W.P.(C) NO.494/2012 CONMT.PET.(C)NO.444/2016 IN W.P.(C) NO.494/2012 CONMT.PET.(C)NO.608/2016 CONMT.PET.(C)NO.844/2017 IN W.P.(C) NO.494/2012 W.P. (C) NO. 342/ 2017 AND WITH W.P.(C) NO.000372/2017 PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA IN THE MATTER OF: Constitutionality of Right to Privacy as fundamental right under Article 21 of the Constitution of India. & Constitutional validity of Section 5 of the Aadhar Act, 2016 of being in violation of Article 14, 19 and 21.

IN THE SUPREME COURT OF INDIA EXTRAORDINARY WRIT JURISDICTION (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) WRIT PETITION (CIVIL) NO. ____________ OF 2017 IN THE MATTER OF:JUSTICE K.S. PUTTASWAMY (RETD.) & ANR. ……….PETITIONER VERSUS UNION OF INDIA & ORS. ……..RESPONDENT NOTICE OF MOTION To, The Standing Counsel, Union of India, Chamber Nos. 223-334, Delhi High Court. Please take note that the above noted matter will be listed on ___________ of 2017 before the Hon’ble High Court of Delhi. It is, therefore, requested to you to please enter your appearance on the said date. PETITIONER Through (ADITI SHARMA) ADVOCATE FOR THE PETITIONER 21, Sharma Chambers, Baird Place, New Delhi. Date: 01.10.2017

SYNOPSIS That this Writ Petition under Article 32 of the Constitution has been filed by the Petitioner against the Central Government for infringement of Article 14, 19 and 21 of the Indian Constitution by giving them excessive authority. The said action has been taken by the Government of India had introduced the Aadhaar card scheme according to the Aadhar Act, 2016 according to which the Government will collect and compiles both demographic and biometric data of the residents of this country. The Petitioner thereby raises several substantial questions of law of constitution and public importance as the question in hand is concerning the fundamental rights of the individuals. The petitioners sort to raise concern in regards to the impugned section 5 of the Aadhar Act, 2016 which is in violation of right to privacy as it sorts to collect and compile both demographic and biometric data without the consent of the said individuals. The Petitioner also seeks from this honorable court to look into the compiled writ petitions to answer the question, whether our Constitution Protects Privacy as an elemental principal and whether the privacy is included under part III of the constitution as a Fundamental Right.

LISTOFDATES S. No

Date

Particulars

Page No.

1

3rd March

Department of Information Technology,

2006

Ministry of Communications and Information Technology gave an administrative approval for a scheme to issue unique ID for Below Poverty Line (BPL) families.

2

4th

Constitution of an Empowered Group of

December

Ministers (EGoM) to collate two schemes -

2006

the National Population Register under the Citizenship Act, 1955 and the UID scheme.

3

2007

First meeting of the EgoM took place where the need for creating an identity related resident database was recognized, thereby leading to the creation of Aadhaar.

4

2009

The Unique Identification Authority of India (UIDAI) was constituted for the purpose of issuing unique identification numbers by the Central Government. It was decided that the UIDAI will be executive in nature and function under the Planning Commission. Nandan M. Nilekani was appointed as the first chairman of this Authority.

5

6

7

3rd

The National Identification Authority of

December

India Bill, 2010 (NIAI Bill) was introduced

2010

in RajyaSabha by the UPA government.

10th

The NIAI Bill, 2010 was referred by the

December

LokSabha Speaker to a Standing Committee

2010

for examination and a report thereafter

December

The Standing committee on Finance under

2011

YashwantSinha issued a report on the NIAI Bill and rejected the bill in its initial form. It gave recommendations, including the requirement for an overarching privacy legislation and data protection law before the continuance of the scheme, and expressed concern about private agencies being contracted for the collection of sensitive information.

8

2012

Justice K.S. Puttaswamy, former Karnataka High Court Judge, filed a petition (W.P.(C) 494/2012)before the Supreme Court contending that Aadhaar does not have any statutory basis, and moreover violates fundamental rights of equality & privacy granted to every individual under the Constitution.

9

24th

An order is issued by the Supreme Court in

March

the case of UIDAI v. Central Bureau of

2014

Investigation (CBI) (SLP (Crl) 2524/2014), (subsequently tagged with Justice Puttaswamy’s petition) asking agencies to revoke any orders made by them making

Aadhaar mandatory for availing benefits. Moreover, it also forbid the UIDAI from sharing any information in the Aadhaar database with any agency without the data subject’s consent. (Order dated 24thMarch, 2014) 10

26th April

The Supreme Court heard the challenge of

2017

mandatory linking of Aadhaat to PAN in the cases of BinoyViswam v. Union of India (W.P.(C)247/2017), S.G. Vombatkere&Anr. v. Union of India (W.P.(C) 277/2017). The hearing for this case continued on April 27th and 28th, and May 2nd, 3rd, and 4th.

S.NO.

CONTENT

1.

NOTICE OF MOTION

2.

SYNOPSIS AND LIST OF DATES

2.

BRIEF FACTS OF THE CASE

3.

QUESTIONS OF LAW

3.

GROUNDS

5.

AVERTMENT

6.

AFFIDAVIT

PAGE NO.

IN THE SUPREME COURT OF INDIA AT NEW DELHI EXTRAORDINARY WRIT JURISDICTION (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) WRIT PETITION (CIVIL) NO. _______OF 2017

IN THE MATTER OF:JUSTICE K.S. PUTTASWAMY (RETD.) & ANR. ……….PETITIONER VERSUS

UNION OF INDIA & ORS. ……..RESPONDENT TO, THE HON‟BLE THE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THIS HON‟BLE COURT THE HUMBLE PETITION OF THE PETITIONER ABOVENAMED MOST RESPECTFULLY SHOWETH THAT: (1)

That the present petition is filed in the Public Interest for considering the

constitutional validity to the Aadhaar Act and the Aadhar scheme of the union government and whether this scheme is in violation of Article 14, 19 and 21 of the Indian Constitution.

(2)

That in the present petition the petitioner will be assisted by Mr.

GopalSubramanium, Mr. KapilSibal, Mr. ArvindDatar, Mr. Shyam Divan, Mr. Anand Grover, Ms. MeenakshiArora, Mr. SajanPoovayya and Mr. JayantBhushan, learned senior counsel.

(3)

That on order dated 11 August, 2015 the government of India had introduced the

Aadhaar card scheme as per which the Government of India will collect and compiles both demographic and biometric data of the residence of this country, i.e. India to be used for various purposes.

(4)

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. BRIEF FACTS 1. The Government of India, by way of the Aadhar Act, 2016 have made Aadhar mandatory for social welfare benefits, infringement of right to privacy, making Aadhaar mandatory for filing income tax returns (ITRs) as well as for obtaining and retaining PAN.

2. Section 5 and Section 6 of the Aadhar Act were questioned for being in violation of Article 14, 19 and 21. 3. The language of the said impugned section have been questioned in the light of right to privacy and mandating the parting of one’s biometrics without the consent of the said person. 4. The case also raised questions on government’s relentless power in regards to the Aadhar Card Scheme. QUESTION OF LAW The 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 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.

Content of Right to Privacy (1) 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. (2) 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”. (3) 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 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. (4) 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. (5) 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. (6) That a Bench of three judges of this Court, while considering the constitutional challenge to the Aadhaar card scheme of the Union government noted in its order, dated 11 August 2015, 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 Attorney General for India 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 Attorney 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 SubbaRao in Kharak Singh was specifically approved of and the decision of the majority was overruled. (7) 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. (8) 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. (9) 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.

(10) That neither does the 4:2 majority in Kharak Singh v. State of Uttar Pradesh furnish a basis for the proposition that no constitutional right to privacy exists. (11) 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. Sharma and Kharak Singh. (12) 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. (13) 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 alsopronounce 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. (14) That the 8-Judge Bench and the 6-Judge Bench decisions have ceased to be relevant in the context of the vastly changed circumstances of today. Further, State action that violates the fundamental right to privacy must contain at least four elements, namely: • “The action must be sanctioned by law;

• The proposed action must be necessary in a democratic society for a legitimate aim; • The extent of such interference must be proportionate to the need for such interference; • There must be procedural guarantees against abuse of such interference.” (15) That the constitutional right to privacy very much exists in Part III of the Constitution. (16) 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:— (i)That the infringement should be by legislation. (ii) That the legislation should be in public interest. (iii) That the legislation should be reasonable and have nexus with the public interest. (iv) Thatthe State would be entitled to adopt that measure which would most efficiently achieve the objective without being excessive. (v)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. (vi) That presumption of validity would attach to the legislations.” (17) That Right to Privacy is also associated with Right to Dignity under Article 21 of the Constitution. GROUNDS (I)

That Aadhar Card scheme cannot be made mandatory and that the giving of biometrics during the issue of the Aadhar card without the consent of the individual is violating right to privacy

(II)

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.

(III)

That the infringement of rights was made by the executive which has no authority to do so.

(IV)

That the legislation is not in the interest of the public and reasonable

(V)

That the legislation should be reasonable and have nexus with the public interest. AVERTMENT 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: (1) – TO DECLARE THE RIGHT TO PRIVACY AS A SEPARATE FUNDAMENTAL RIGHT UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA. (2) –

TO

DECLARE

THE

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 THIS ACT OF KINDNESS, THE PETITIONER SHALL BE DUTY BOUND FOREVER.

Sd/(COUNSEL FOR THE PETITIONER)

IN THE SUPREME COURT OF INDIA AT NEW DELHI EXTRAORDINARY WRIT JURISDICTION (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) WRIT PETITION (CIVIL) NO. _______OF 2017

IN THE MATTER OF:JUSTICE K.S. PUTTASWAMY (RETD.) & ANR. ……….PETITIONER VERSUS UNION OF INDIA & ORS. ……..RESPONDENT AFFIDAVIT I, the above named deponent, solemnly affirm and state on oath as under: 1. That I am the Petitioner in the above mentioned writ petition and am fully conversant with the facts deposed to in the Writ Petition. 2. That the contents of paragraphs 1 to 5 of the accompanying writ petition are true to my personal knowledge. No material has been concealed and no part is false. DEPONENT Signed at New Delhi, 28th September, 2017.

VERIFICATION I, Puttuswamy the above named deponent do hereby verify on oath that the contents of the affidavit above are true to my personal knowledge and nothing material has been concealed or falsely stated. Verified at New Delhi this Spetember day of 28 DEPONENT