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AMITY NATIONAL MOOT COURT COMPETITION, 2018.
CONTENTS
T4-R
AMITY NATIONAL MOOT COURT COMPETITION, 2018
IN THE SUPREME COURT OF THE REPUBLIC OF ENDOR
UNDER ARTICLE 32 OF THE CONSTITUTION OF ENDOR
IN THE MATTER OF:
BEN YODA FOUNDATION ...PETITIONER
VERSUS
REPUBLIC OF ENDOR … RESPONDENT
WRIT PETITION NO. ****/2017
Memorial on behalf of the Petitioner
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AMITY NATIONAL MOOT COURT COMPETITION, 2018. TABLE OF CONTENTS
CONTENTS
LIST OF ABBREVIATION ................................................................................................................3
INDEX OF AUTHORITIES ................................................................................................................5
STATEMENT OF JURISDICTION..................................................................................................... 12
STATEMENT OF FACTS ................................................................................................................ 13
ISSUES INVOLVED ...................................................................................................................... 15
SUMMARY OF ARGUMENTS ........................................................................................................ 16
BODY OF ARGUMENTS ............................................................................................................... 18
[ISSUE 1] RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT GUARANTEED UNDER ARTICLE 21 OF

THE CONSTITUTION OF ENDOR. ............................................................................................... 18
[ISSUE 2] CITIZENS OF ENDOR CANNOT WAVE THEIR FUNDAMENTAL RIGHT, GUARANTEED BY
THE CONSTITUTION. ............................................................................................................... 23
[ISSUE 3] THE VDR SCHEME AND VDR Act 2012 is Unconstitutional..................................... 25
[ISSUE 4] THE VDR ACT AND THE PALANTIR ENABLE SURVEILLANCE AND HENCE IS VIOLATIVE.
.............................................................................................................................................. 32
[ISSUE 5] THE VDR ACT DOESN‟T QUALIFY AS A MONEY BILL AND DETERMINATION OF THE
SAME CAN BE CHALLENGED. ................................................................................................... 45
PRAYER ..................................................................................................................................... 48
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MEMORANDUM ON BEHALF OF PETITIONER
AMITY NATIONAL MOOT COURT COMPETITION, 2018. LIST OF ABBREVIATIONS
LIST OF ABBREVIATION
1. AIR - All India Reporter

2. ALL ER - All England Reporter
3. BINKS - Biometric Identification and National Knowledge System
4. CJI - Chief Justice of India
5. Co. - Company
6. Corp - Corporation
7. Cri LJ - Criminal Law Journal
8. Del - Delhi
9. Dr. - Doctor
10. Edn - Edition
11. Hon‟ble - Honorable
12. i.e. - That is
13. Inc - Incorporated
14. In re - In matter of
15. IT - Information Technology
16. Jr. - Junior
17. Ltd - Limited
18. NGO - Non Government Organization
19. Ors. - Others
20. QB - Queen‟s Bench
21. r/w - Read with
22. SLP - Special Leave Petition
23. SC - Supreme Court
24. SCC - Supreme Court Cases
25. SCR - Supreme Court Report
26. UP - Uttar Pradesh
27. USA - United States of America
28. V. - Versus
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AMITY NATIONAL MOOT COURT COMPETITION, 2018. LIST OF ABBREVIATIONS
29. WB - West Bengal

30. ¶ - Paragraph
31. & - And
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AMITY NATIONAL MOOT COURT COMPETITION, 2018. INDEX OF AUTHORITIES
INDEX OF AUTHORITIES
Cases
Ahmedabad St Xavier‟s College v. State of Gujarat, 1975 S.C.R. (1) 173.................................. 26

Amann v. Switzerland, 30 Eur. H. R. R. 843, 861 (2000) .......................................................... 42
Ameronissa v. Mehboob, A.I.R. 1953 S.C. 71 ........................................................................... 27
Anuj Garg v. Hotel Association of India, (2008) 3 S.C.C 1................................................... 29,31
Aruna Ramachandra Shanbaug v. Union of India & Ors., (2011) 4 S.C.C. 454 .......................... 31
Austin v. Michigan Chamber of Commerce, 494 U.S. 652, S. 655 (1990)............................ 45
B.B. Rajvanshi v. State of U.P., A.I.R. 1988 S.C. 1089 ............................................................. 36
Basheshar Nath v. C.I.T., 1959 A.I.R. 149........................................................................... 24, 25
Behram Khurshed Pesikaka v. The State of Bombay, (1955) 1 S.C.R. 613 ................................ 24
Bijoe Emmanuel v. State of Kerala, A.I.R. 1987 S.C. 748 ......................................................... 32
Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, S. 573 (1987) ............... 45
Boos v. Barry, 485 U.S. 312, S. 334 (1988) .............................................................................. 45
Budhan Chaudhary v. State of Bihar, A.I.R. 1955 S.C. 191 ....................................................... 27
Burson v. Freeman, 504 U.S. 191, S.198 (1992) ...................................................................... 45
C-293/12 Digital Rights Ireland Ltd. v. Minister for Communications, Marine and Natural
Resources and Others, 2014 E.C.R. I-238. ........................................................................ 38,40
Cornelius v. NAACP Legal Defense and Educ. Fund Inc. 473 U.S. 788, S. 800 (1985) ..... 45
District Registrar & Collector, Hyderabad v. Canara Bank, A.I.R. 2005 S.C. 186 ...................... 31
Douglas v. Hello Ltd., (2001) Q.B. 967 ..................................................................................... 21
Express Newspapers (Private) Ltd. v. Union of India, (1959) 1 S.C.R. 12 ................................. 32
Francis Corlie Mullin v. Adminstrator & Union Territory of Delhi A.I.R. 1981 S.C. 746 .......... 23
Gobind v. State of Madhya Pradesh, (1975) 2 S.C.C. 148 ..................................................... 19,30
H.R. Banthia v. Union of India, A.I.R. 1970 S.C. 1453.............................................................. 37
Hamdard Dawakhana v. Union of India A.I.R. 1960 S.C. 554 ................................................... 37
Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557 (1995) ..... 32
In re Berubari Union and Exchange of Enclaves, A.I.R. 1960 S.C. 845 ..................................... 38
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In re: The Kerala Education Bill, 1959 1 S.C.R. 995 ................................................................. 26

Jairam Ramesh v. Union Of India, W.P.(C)No.231/16 .............................................................. 48
Justice K.S. Puttaswamy (Retd.) v. Union Of India, (2017) 10 S.C.C. 1 ............................. passim
Justice K.S. Puttaswamy (Retd.) v. Union of India, A.I.R. 2015 S.C. 3081 .................... 23, 24, 32
Kathi Raning v. State of Saurashtra, 1952 S.C.R. 435................................................................ 36
Kedar Nath Bajoria v. State of West Bengal, A.I.R. 1953 S.C. 404 ............................................ 27
Kharak Singh v. State of Uttar Pradesh, A.I.R. 1963 S.C. 1295 ...................................... 19, 24,23
Kishan Prakash Sharma v. Union of India, (2001) 5 S.C.C. 212 ................................................ 37
Klass and Others v. Germany 2 E. H. R. R. 214, 835 (1978) ...................................................... 38
Leander v. Sweden, 9 Eur. H. R. R. 433, 537 (1987) ................................................................. 42
Malak Singh v. State of Punjab and Haryana, (1981) 1 S.C.C. 420 ............................................ 19
Malone v. The United Kingdom, 7 Eur. H. R. R. 14, 40 (1984) ............................................ 43,45
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597 ..................................................... 39, 43
Maruti Shripati Dubal v. State of Maharashtra, (1986) 88 Bom. L.R. 589 .................................. 32
Miller v. United States, 357 U.S. 301 (1958) ....................................................................... 22, 24
Modern Dental College v. State of M.P., (2016) 7 S.C.C. 353 ................................................... 33
Nar Singh Pal v. Union of India, (2000) 3 S.C.C. 588................................................................ 25
Olga Tellis v. Bombay municipal corporation, (1983) 3 S.C.C. 545................................ 23,24, 25
P.A. Jacob v. Superintend of Police, Kottayam, A.I.R. 1993 Ker. 1 ........................................... 32
People‟s Union for Civil Liberties v. Union of India, A.I.R. 1997 S.C. 568 ............................... 20
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, S. 45 (1983) ................. 45
R v. Oakes, (1986) 1 S.C.R. 103 (Can.) .................................................................................... 45
R. Rajagopal v. State Of T.N., 1995 A.I.R. 264 ......................................................................... 20
R. v. Big M Drug Mart Ltd. (1985) 1 S.C.R. 295 (Can.) ...................................................... 45
R. v. The Commissioner of Police of the Metropolis, (2011) U.K.S.C. 21 ................................. 21
Rajgopal v. State of Tamil Nadu, 1994 6 S.C.C. 632 ................................................................. 23
Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 S.C.C. 1 ........................ 24
Ranjit v. State of Maharashtra, A.I.R.1965 S.C. 881 .................................................................. 32
Rotaru v. Romania, 8 B. H. R. C. 449, 463 (2000) ..................................................................... 44
S. and Marper v. U.K. 48 E.H.R.R. 50, 78 (2008) ........................................................... 38,42, 45
Schloendorff v. Society of New York Hospital, 211 N.Y. 125 : 105 N.E. 92 (1914) ................. 31
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Semayne v. Gresham, A.l.l. E.R. Rep. 62 .................................................................................. 21

Shreya Singhal v. Union of India, A.I.R. 2015 S.C. 1523 ............................................... 32.36, 43
Speiser v. Randall, 357 U.S. 513, 526 (1958) ............................................................................ 26
State of Andhara Pradesh v. McDowell and Co., 1996 A.I.R. 1627 ........................................... 28
State of Bihar v. Shaila Bala, A.I.R. 1952 S.C. 329 ................................................................... 32
State of Punjab v. M.S. Chawla A.I.R. (1997) S.C. 1225 ........................................................... 43
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 S.C.C. 1 ................................................... 27
Thalappalam Ser.Coop.Bank Ltd.&Ors. v. State Of Kerala, (2013) 16 S.C.C. 82....................... 20
The United States v. Jones, 565 U.S. 132 S. 945, 964 (2012) ..................................................... 40
U.S. v. Grace, 461 U.S. 171, S. 177 (1983).............................................................................. 45
United States v. Miller, 425 U.S. 435 (1976) ............................................................................. 31
Vajravellu Mudaliar v. Special Deputy Collector for Land Acquisition, A.I.R. 1965 S.C. 1017 . 27
Vishaka v. State of Rajasthan, A.I.R. 1997 S.C. 3011 ................................................................ 38
Weber and Saravia v. Germany 46 Eur. H. R. R. S.E.5, 18 (2006) ................................... 38,43,45
Wolf v. Colorado, (1949) 238 U.S. 25 ....................................................................................... 22
Yousuf Ali Abdulla Fazalbhai v. M.S. Kashekar, M.A.N.U./M.H./0280/1982 Bom.H.C. .......... 25
Statutes
Aadhaar Act, 2016 § 10............................................................................................................. 36

Aadhaar Act, 2016 § 2(j) ........................................................................................................... 41
Aadhaar Act, 2016 § 2(k) .......................................................................................................... 41
Aadhaar Act, 2016 § 29............................................................................................................. 35
Aadhaar Act, 2016 § 32 (1) ....................................................................................................... 41
Aadhaar Act, 2016 § 32 (3) ....................................................................................................... 40
Aadhaar Act, 2016 § 36............................................................................................................. 35
Aadhaar Act, 2016 § 47(1) ........................................................................................................ 38
Aadhaar Act, 2016 § 6............................................................................................................... 35
Aadhaar Act, 2016 § 7......................................................................................................... 28, 29
Aadhaar Act, 2016 § 8(4) .................................................................................................... 36, 40
Aadhaar Act, 2016 No. 18, Acts of Parliament, 2016 (India) ................................... 35, 37, 41, 48
European Convention on Human Rights art. 8 ........................................................................... 21
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Income-tax Act, 1961 § 139AA ..................................................................................... 27, 28, 33

INDIA CONST ......................................................................................................................... 42
INDIA CONST. art 338 ............................................................................................................ 48
INDIA CONST. art. 110, cl. 3 ................................................................................................... 46
INDIA CONST. art. 122, cl. 1 ................................................................................................... 47
INDIA CONST. art. 13 ............................................................................................................. 25
INDIA CONST. art. 19 ............................................................................................................. 43
INDIA CONST. art. 21 ............................................................................................................. 43
INDIA CONST. art. 226 ........................................................................................................... 43
INDIA CONST. art. 233 ........................................................................................................... 48
INDIA CONST. art. 243 ........................................................................................................... 48
INDIA CONST. art. 246 ........................................................................................................... 48
INDIA CONST. art. 25 ............................................................................................................. 43
INDIA CONST. art. 269A......................................................................................................... 48
INDIA CONST. art. 357 ........................................................................................................... 48
INDIA CONST. art. 51 ....................................................................................................... 38, 43
INDIA CONST. art.21 ............................................................................................. .31,23,31, 39
INDIAN CONST art. 51(c) ....................................................................................................... 19
Parliament Act (Ch. 13/1911) (U.K.) ................................................................................... 46, 47
Parliament act (Ch. 13/1911) (U.K.), § 1(2)............................................................................... 46
U.S. CONST. amend. IV ........................................................................................................... 31
Other Authorities
Die Entscheidungen des Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court],

Mar. 3, 2004, 109 BVerfGE 279 (Ger.) ................................................................................. 44
Die Entscheidungen des Bundesverfassungsgerichts[BVerfGE] [Federal Constitutional Court],
Dec. 15, 1983, 65 BVerfGE 1(1) (Ger.) ................................................................................. 44
Die Entscheidungen des Bundesverfassungsgerichts[BVerfGE] [Federal Constitutional Court],
Jul. 16. 1969, 27 BVerfGE 1(6) (Ger.) ................................................................................... 44
G. A. Res. 68/167, ¶3, U.N. Doc. A/R.E.S./68/167(Jan. 21, 2014) ............................................. 43
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International convention on civil and political rights art.17 , Apr. 12, 1979, 999 U.N.T.S. 171.
......................................................................................................................................... 21,41
International convention on civil and political rights art.14 , Apr 12, 1979, 999 U.N.T.S. 171. .42
International convention on civil and political rights art.18 , Apr. 12, 1979, 999 U.N.T.S. 171. . 42
Universal Declaration of Human Rights, G.A. Res. 217(III) A. U.N. Doc. A/RES/217(III) (Dec.
10, 1948)…………………………………………………………………………………...22,3843
U.N. High Commissioner for Human Rights, The Right To Privacy In The Digital Age Report Of
The Office, ¶14, U.N. Doc. A/H.R.C./27/37 (June 30, 2013) .................................................. 44
U.N. Human Rights Committee , Concluding observations on the Fourth Periodic Report Of The
States of America ¶22, U.N. Doc. C.C.P.R. /C/U.S.A./C.O./4 (Apr. 23, 2014) ....................... 45
U.N. Special Rapporteur, The Promotion And Protection Of Human Rights And Fundamental
Freedoms While Countering Terrorism, ¶11, U.N. Doc. A/H.R.C./13/37 (Dec. 28, 2009) ..... 43
U.N. Special Rapporteur, The Promotion And Protection Of Human Rights And Fundamental
Freedoms While Countering Terrorism, ¶7, U.N. Doc. A/H.R.C./13/37 (Dec. 28, 2009) ....... 35
U.N. Special Rapporteur, The promotion and protection of the right to freedom of opinion and
expression, Frank La Rue, ¶81, U.N. Doc. A/H.R.C./23/40 (Apr.17, 2013) ........................... 42
Books
2 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, (8th ed., Lexis Nexis Butterworth
Wadhwa Publications Nagpur, 2008)..................................................................................... 31
3 B. SHIVARAO, THE FRAMING OF THE INDIAN CONSTITUTION: SELECTED DOCUMENTS 32
(Universal Law Publishing, 2012) ......................................................................................... 46
8 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 9060 (20th ed. Lexi Nexis,
2012)..................................................................................................................................... 48
ERSKINE MAY, PARLIAMENTARY PRACTICE (24th ed. Lexis-Nexis Butterworth Wadhwa
Publications, Nagpur 2011) ................................................................................................... 48
HAIG BOSMAJIAN, THE FREEDOM NOT TO SPEAK 178 (N.Y.U. Press, 1999) ................................ 32
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M. P. JAIN, INDIAN CONSTITUTIONAL LAW 917 (7th ed., Lexis-Nexis Butterworth Wadhwa
Publications, Nagpur ............................................................................................................. 27
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 876 (7th ed., Lexis-Nexis Butterworth Wadhwa
Publications, Nagpur ............................................................................................................. 27
Internet Sources
Aadhaar, Waiver of Fundamental Rights, and the Doctrine of Unconstitutional Conditions,

INDIAN CONSTITUTIONAL LAW AND PHILOSOPHY (Oct.6,2015,12:35PM),
https://indconlawphil.wordpress.com/2015/10/06/Aadhaar-waiver-of-fundamental-rights-and-
the-doctrine-of-unconstitutional-conditions/. ......................................................................... 24
Amber Sinha, Sumandro Chattapadhyay, Sunil Abraham, & Vanya Rakesh, List of
Recommendations on the Aadhaar Bill, 2016 - Letter Submitted to the Members of Parliament,
THE CENTRE FOR INTERNET AND SOCIETY (Mar.25, 2013, 11:14 AM), https://cis-
india.org/internet-governance/blog/list-of-recommendations-on-the-aadhaar-bill-2016.......... 28
C.L. Wilson, Biometrics Accuracy Standard, N.I.S.T. (Mar.,2003),
https://csrc.nist.gov/CSRC/media/Events/ISPAB-MARCH-2003-
MEETING/documents/March2003-Biometric-Accuracy-Standards.pdf................................. 34
Constituent Assembly Debates, GOVERNMENT OF INDIA (Mar. 23, 1949),
http://parliamentofindia.nic.in/Is/debates/vol8p6.html. .......................................................... 47
Creating a unique identity for every resident in India, GOVERNMENT OF INDIA (Apr.,2010),
http://uidai.gov.in/documents/Creating a unique identity for every resident in India.pdf ........ 34
Ian Steadman, Hacker arrested for allegedly stealing ID info of most of Greece, WIRED (Nov. 22,
2012), http://www.wired.co.uk/article/greece-id-theft ............................................................ 35
Investigatory powers bills and client confidentiality, THE BAR COUNCIL (Mar.,2016),
http://www.barcouncil.org.uk/media-centre/news-and-press-
releases/2016/march/investigatory-powers-bill-second-reading/ ............................................ 43
Kate Greene, Reality Mining, M.I.T. (Feb.19, 2008),
http://www2.technologyreview.com/article/409598/tr10-reality-mining/ ............................... 40
Surabhi Agarwal, Duplicate Aadhaar numbers within estimate, LIVE MINT (Mar.5, 2013),
http://www.livemint.com/Politics/hTUpdA8tpufSHI6jfG27gP/Duplicate-Aadhaar-numbers-
within-estimates-UIDAI.html ................................................................................................ 35
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The Wire Staff, The Aadhaar Debate: „The State Has No Right of Eminent Domain on the
Human Body‟,THE WIRE (Apr.28, 2017), https://thewire.in/129622/aadhaar-income-tax-
supreme-court/. ..................................................................................................................... 28
U.N. Human Rights Council, Necessary and Proportionate Principles, U.N. (Sept.,2013),
www.necessaryandproportionate.org ..................................................................................... 44
Usha Ramanathan, Outsourcing enrolment, gathering dogs and trees, THE STATESMAN (Aug.7,
2013), https://www.thestatesman.com/india/outsourcing-enrolment-gathering-dogs-and-trees-
9098.html .............................................................................................................................. 35
Journals
Alberto Escudero, Pascual & Gus Hosein, Questioning lawful access to traffic data, 47(3)
COMMUNICATIONS OF THE A.C.M. 67, 77 (2004) ................................................................... 40
Dr. Rajarshi Pal, A Survey on Biometrics, 3 I.D.R.B.T. STAFF PAPER SERIES 1, 3 (2017) ........... 35
Dr. S. Ananth , Biometrics and Its Impact in India, 3 I.D.R.B.T. STAFF PAPER SERIES 119, 143
(2017) ................................................................................................................................... 36
Hale, Unconstitutional Conditions and Constitutional Rights, 35 COLUM. L. REV. 321 (1935) .. 26
Mathew Varghese, Flaws in the UIDAI process, 51(9) ECONOMIC AND POLITICAL WEEKLY 74,
74 (2016)............................................................................................................................... 34
Pratik Datta et al., Judicial Review And Money Bills, 10 N.U.J.S. L. REV. 2 (2017) ................... 48
Pratik Datta et al., Judicial Review And Money Bills, 10 N.U.J.S. L. REV. 75, 92 (2017) ..... 46, 47
Warren & Brandeis, The Right to Privacy, 4 (5) HARVARD LAW REVIEW 195,196 (1890).......... 23
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AMITY NATIONAL MOOT COURT COMPETITION, 2018. STATEMENT OF JURISDICTION
STATEMENT OF JURISDICTION
The counsel on behalf of the Petitioner humbly submits this memorandum for a Writ Petition
filed before this honorable court, which has been posted for final hearing by the honorable court.
Writ Petition (Civil)
The Writ Petition is filed under Article 32 of the Constitution of Endor.
The present memorandum sets forth facts, contentions and arguments on the behalf of
appellant/petitioner in the present case.
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AMITY NATIONAL MOOT COURT COMPETITION, 2018. STATEMENT OF FACTS
STATEMENT OF FACTS
¶1. The Republic of Endor is a developing nation located in South Asia. It has a fast growing
economy and shares its borders with 7 countries. Endor has been striving to improve its GDP
with help of FDI and international trade. Having porous borders, Endor struggles with illegal
immigration and certain security threats throughout the year.
¶2. Endor has a large population but an inadequate infrastructure and Endorians struggle for
basic amenities and require State support. The state in order to help and to comply with
International Human Right principles, felt a need to identify the target group requiring the most
support.
¶3. The Imperial party, which had majority in both the Houses of Parliament, began to promote
the idea of an unique identification number for all Endorians. After consultation with certain
think tanks and expert panels, the Government of Endor decided to issue a Verifiable Data
Registration Card (VDR Card).
¶4. A VDR number was voluntary and could be issued to any resident of Endor, because of
which it was criticized by several NGOs as it was treating both foreign nationals and Endorians
equally. The Opposition Party criticized the scheme as a waste of national resources.
¶5. An executive order on February 2011 was issued making Biometric Identification and
National Knowledge System (BINKS) as an authority responsible for collecting data and keeping
it securely. Data collection would comprise of an individual‟s biometric and demographic
information.
¶6. In 2012, the Government presented a VDR Bill was presented in the Lower House of
Parliament, which entitled every resident of Endor to obtain a VDR number. This was
thoroughly opposed by Leia Alliance on ground of breach of right of privacy and was supported
by the Standing Committee of the Parliament.
¶7. However, the bill was still debated and voted upon in the parliament, where it was passed
with a simple majority in both Houses in late 2012. A sum of BINKS Rs. 2,000/- Crore was
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AMITY NATIONAL MOOT COURT COMPETITION, 2018. STATEMENT OF FACTS
allotted to the BINKS to start the process. The voluntary nature of the scheme was also
repeatedly emphasized upon.
¶8. By 2015, over 90% of Endorians had been issued a VDR Card. There was a scattering of
media reports about a few careless leaks, certain cases involving inaccuracy of data and wrongful
denial of pensions and basic food rations. Infact in September 2015, a major national newspaper
published an investigative report detailing how it was able to obtain access to the Palantir upon
paying a measly sum of Rs. 500/- and access all VDR numbers as well as the information
associated with them. However, the biometric data was not accessed. BINKS, upon being
contacted about the same, accused the newspaper of a data breach and threatened to file a
criminal complaint for unauthorized access.
¶9. Shortly after the publication of the report, the Ben Yoda Foundation, a civil rights group
comprised of activists as well as lawyers, filed a writ petition in the Supreme Court of Endor,
challenging the VDR Act to be unconstitutional and being violative of Right to Privacy, even
restricting a citizen‟s right to legal recourses.
¶10. The Attorney General of Endor claimed that as the Constitution of Endor does not grant a
fundamental right to privacy, the violation of the same couldn‟t be claimed. She also reiterated
the necessity of the VDR scheme to implement social security measures, and cited various
countries that have a similar identification mechanism.
¶11. The matter was referred to a Constitutional Bench seeking clarity on Right to Privacy. In
2017, a 9 judge bench of the Supreme Court unanimously upheld right to privacy as a
fundamental right.
¶12. The government of Endor stands on the ground that VDR is not violative of Right to
Privacy and that VDR scheme being integral to its social functions, and has ensured that the
identification number has been linked to the holder‟s tax returns, insurance policies, mobile
numbers and bank accounts.
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AMITY NATIONAL MOOT COURT COMPETITION, 2018. ISSUES INVOLVED
ISSUES INVOLVED

THE CONSTITUTION OF ENDOR.

THE CONSTITUTION.
[ISSUE 3] THE VDR SCHEME AND VDR Act 2012 is Unconstitutional.
[ISSUE 4] THE VDR ACT AND THE PALANTIR ENABLE SURVEILLANCE AND HENCE IS
VIOLATIVE.
[ISSUE 5] THE VDR ACT DOESN’T QUALIFY AS A MONEY BILL AND DETERMINATION OF THE
SAME CAN BE CHALLENGED.
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AMITY NATIONAL MOOT COURT COMPETITION, 2018. SUMMARY OF ARGUMENTS
SUMMARY OF ARGUMENTS

It is humbly submitted that Right to Privacy has evolved through various judgments in Endor and
had always been in the essence of Endor‟s Constitution. Various foreign law and international
courts have given a judgment in favor of Right to Privacy being an important right in all the
constitutions. Right to Privacy is covered under the ambit of Article 21 in the Constitution of
Endor as it is a violation of one‟s dignity, if his privacy is intruded under.

THE CONSTITUTION.
It is humbly submitted the Fundamental Rights were included in our constitution to protect the
basics rights of all the citizens of the country and not to discriminate amongst anyone nor wrecks
anyone‟s liberty and dignity. No citizens can willing give up these rights guaranteed under part
III of the constitution. According to doctrine of unconstitutional conditions, no citizen can waive
off their fundamental rights.
It is humbly submitted that the VDR Act and Scheme implemented by the Government is in
violations to Fundamental Rights guaranteed under Part III of the Constitution and should be
struck down. The act discriminates amongst citizens on various grounds. Making the act
implicitly mandatory not only goes against the ground on which the act was made, i.e. voluntary
nature of the act, but also is violative of Article 21 and Article 19. The data collected by the
Government for the purpose of VDR Number, breaches Right to Privacy of an individual.
VIOLATIVE.
It is humbly submitted before the bench the accuracy of biometric identification depends on the
chance of a false positive: the probability that the identifiers of two persons will match and this
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AMITY NATIONAL MOOT COURT COMPETITION, 2018. SUMMARY OF ARGUMENTS
enables duplicands. Biometrics can be easily spoofed too. Also, the provisions of the VDR Act
raises concerns regarding security of the data. With a central database, Palantir, there is now a
readily available single target for cyber criminals as well as Endor‟s external enemies. It is also
contended that the mechanism for profiling and surveillance is further facilitated by the VDR
Act‟s central design which enables BINKS to maintain records. At last, the petitioners conclude
that surveillance violates civil liberties and also doesn‟t comply with International Human Rights
which was the reason for which a national ID scheme came into existence.
It is humbly submitted before the bench that the framers of the Indian Constitution deliberately
allowed the possibility of judicial review of the Speaker's decision in India and the framers of the
Constitution of India did not intend to make the Speaker's certificate “conclusive for all
purposes” as is the position in England. It is submitted that while the VDR act does make
references to benefits, subsidies and services funded by the Consolidated Fund of India (CFI),
but what the bill does is to establish the VDR number as the identification mechanism for
benefits and subsidies funded by the CFI which does not give it the character of a money bill.
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AMITY NATIONAL MOOT COURT COMPETITION, 2018. BODY OF ARGUMENTS
BODY OF ARGUMENTS

¶1. It is submitted that Right to Privacy has always been there in the essence of the constitution
of Endor and in 2017, a 9 judge bench1 has upheld it to be part of Article 21 of the constitution
of Endor. The recognition of privacy as a fundamental constitutional value is a part of Endor‟s
commitment to a global human rights regime. The state is required to endeavor to “foster respect
for international law and treaty obligations in the dealings of organized peoples with one
another”.2
1.1 Right to Privacy has evolved in Endor through various judgments.
¶2. It is submitted that the scope of right of privacy came up for consideration in Kharak Singh‟s
Case which was concerned with the validity of certain regulations that permitted surveillance of
suspects. In this case 3 , Justice Subba Rao dissented by saying, “Indeed, nothing is more
deleterious to a man's physical happiness and health than a calculated interference with his
privacy. Thus, right of personal liberty as mentioned under Article 21 can be defined as a right of
an individual to be free from restrictions or encroachments on his person, irrespective of,
whether these restrictions or encroachments are directly imposed or indirectly brought about by
calculated measures. Further, right to privacy was acknowledged as fundamental right by the
Supreme Court in Gobind‟s case.4
¶3. It was also held by the court5 that, Surveillance may be intrusive and encroaching on the
privacy of a citizen and there by infringing his fundamental right to personal liberty guaranteed
by Article 21 of the constitution. Privacy can come under two aspects of law as per a 1994,
judgment6, they are-
1
Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 S.C.C. 1.
2
INDIA CONST. art. 51(c).
3
Kharak Singh v. State of U.P., A.I.R. 1963 S.C. 1295.
4
Gobind v. State of Madhya Pradesh (1975) 2 S.C.C. 148.
5
Malak Singh v. State of Punjab and Haryana, (1981) 1 S.C.C. 420.
6
R. Rajagopal v. State of T.N., 1995 A.I.R. 264.
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i. Privacy under Law of Torts -

Privacy under torts is interpreted as an action for damages resulting from an unlawful invasion
of privacy of a person.
ii. Privacy was given Constitutional Recognition –
In this judgment, Right to Privacy was said to be included in the Constitution. It was established
as protection of privacy against unlawful governmental invasion.
In the present case VDR Act is unlawful government invasion as it is without the consent of the
citizen. Even though the government had repeatedly said it‟s a voluntary scheme 7 but has
ensured that the identification number has been linked to the holder‟s tax returns, insurance
policies, mobile numbers and bank accounts, 8 making the scheme mandatory.
¶4. It was held by the Supreme Court9 , that citizen's right to privacy has to be protected from
being abused by the authorities. But with implementation of VDR Scheme, Government can
access the given data of citizen at any given point of time and can abuse it in their favor.
¶5. The right to privacy is not expressly guaranteed under the Constitution of Endor, until, the
Privacy Bill, 2011. The bill provides for the right to privacy to citizens and also regulates the
collection, maintenance and dissemination of their personal information. 10
¶6. In a recent judgment of the Supreme Court 11, a 9 judge bench unanimously upheld the right
to privacy as a fundamental right. The court‟s opinion was, that whatever is not found in the text
of the Constitution cannot become a part of the Constitution would be too primitive an
understanding of the Constitution and contrary to settled cannons of constitutional interpretation.
Such an approach regarding the rights and liberties of citizens would be an affront to the
collective wisdom of our people and the wisdom of the members of the Constituent Assembly.
¶7. Hence, it is contented that Right to Privacy is a Fundamental Right, present in the essence of
Endor‟s Constitution.
7
Moot Proposition, ¶5,7.
8
Moot Proposition, ¶13.
9
People‟s Union for Civil Liberties v. Union of India, A.I.R. 1997 S.C. 568.
10
Thalappalam Ser.Coop.Bank Ltd. v. State of Kerala, (2013) 16 S.C.C. 82.
11
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1.
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1.2 View on Privacy by Foreign Courts Foreign Institution.
¶8. It was held in the Douglas‟12 case that, law of privacy has to protect not only those people
whose trust has been abused but those also, who simply find themselves subjected to an
unwanted intrusion into their personal lives. The law no longer needs to construct an artificial
relationship of confidentiality between intruder and victim: it can recognize privacy itself as a
legal principle drawn from the fundamental value of personal autonomy.
¶9. Further, in an English case;13 where the question was till what extent police's power (under
guidelines issued by the Association of Chief Police Officers- the ACPO guidelines) to
indefinitely retain biometric data of individuals who are no longer a criminal suspect. The UK
Supreme Court, by a majority held that the police force's policy of retaining DNA evidence in
the absence of 'exceptional circumstances' was unlawful and a violation of Article 8 14 of the
European Convention on Human Rights, which states that “Everyone has the right to respect for
his private and family life, his home and his correspondence; there shall be no interference by a
public authority except such as is in accordance with law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-being of the
country, for the protection of health or morals or for the protection of the rights and freedoms of
others.”
¶10. It was held in the case of Puttaswamy15, that, in U.S., Fourth Amendment guarantees the
rights of Privacy. It deals with security of its people, in houses, papers and effects against
unreasonable searches and seizures. Though the Indian Constitution did not expressly confer a
like guarantee, the majority held that nonetheless an unauthorized intrusion into a person‟s home
would violate the English Common Law maxim which asserts that every man‟s house is his
castle16.
¶11. The privacy test held in the Miller case 17 states that personal information can only be parted
away voluntary, only then it won‟t be a breach against privacy. But is the present scenario the
12
Douglas v. Hello Ltd., (2001) Q.B. 967.
13
R. v. The Commissioner of Police of the Metropolis, (2011) U.K.S.C. 21.
14
European Convention on Human Rights, art. 8.
15
16
Semayne v. Gresham, All. E.R. Rep. 62.
17
Miller v. United States, 357 U.S. 301 (1958).
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government has made VDR Act mandatory, forcing all the citizens to give their personal
information.
¶12. The case of Wolf v. Colorado18, pointed out the importance of the security of one's privacy
against arbitrary intrusion by the police, and held that it could have no less application to an
Indian home as to an American one.
¶13. It is submitted that Right to Privacy has also been mentioned in Article 12 19 of Universal
Declaration of Human Rights (1948) which states that, “No one shall be subject to arbitrary
interference neither with a person‟s privacy, family, home or correspondence nor to attack upon
his honor and reputation. Everyone has the right to protection of the law against such
interference or attacks.” Similarly, in Article 17 of International Covenant on Civil and Political
Rights20 (to which India is a party) states “No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home and correspondence, nor to unlawful attacks on his
honor and reputation”. The ICCPR casts an obligation on states to respect, protect and fulfill its
norms. The duty of a State to respect the right mandates that it must not violate the right. The
duty to protect the right mandates that the government must protect it against any interference,
even by private parties. The duty to fulfill norms postulates that government must take steps
towards realization of a right. Significantly, while acceding to the ICCPR, Endor did not file any
reservation or declaration to Article 17. Therefore, we are mandated to recognize right to privacy
and safeguard it.
¶14. In the present case, there is no contradiction between the international obligations assumed
by The Republic of Endor and the Constitution. There is no such inconsistency between Indian
laws which would make courts not to readily presume Privacy to be fundamental. Our
constitutional provisions must be read and interpreted in a manner which would enhance their
conformity with the global human rights regime. 21
1.3 Right to Privacy comes under the ambit of Article 21.
18
Wolf v. Colorado, (1949) 238 U.S. 25.
19
Universal Declaration of Human Rights, G.A. Res. 217(III) A. U.N. Doc. A/RES/217(III) (Dec. 10, 1948).
20
International convention on civil and political rights art.17 , Apr 12, 1979, 999 U.N.T.S. 171.
21
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¶15. It is humbly submitted that Article 21 22 talks about Right to life, i.e. Right to live with
dignity. The first and natural home for a right of privacy is in Article 21, at the very heart of
„personal liberty‟ and life itself. Liberty and privacy are integrally connected in a way that
privacy is often the basic condition necessary for exercise of the right of personal liberty. 23
¶16. As per Black‟s Law Dictionary, privacy means “right to be let alone; the right of a person to
be free from unwarranted publicity; and the right to live without unwarranted interference by the
public in matters with which the public is not necessarily concerned.” 24 Samuel D Warren and
Louis Brandeis, have broadened the scope of right to life and said it has the right to be let
alone. 25 Therefore, right to privacy is a part of right to life enshrined under Article 21. Similarly,
the Supreme Court26 has also stated that, even though our Constitution does not expressly declare
a right to privacy as a fundamental right, but it is an essential ingredient of personal liberty.
¶17. It is submitted that right to life as has been interpreted by the court 27 on various instances28
states that there should be life of dignity and not merely an animal existence. It therefore
includes all those aspects of life which makes a man‟s life more meaningful, complete and worth
living and right to privacy is one such right.
¶18. In the recent judgment 29, Justice S. A. Bobde said, “Both dignity and privacy are intimately
intertwined and are natural conditions for the birth and death of individuals, and for many
significant events in life between these events. Necessarily, then, the right of privacy is an
integral part of both „life‟ and „personal liberty‟ under Article 21.”
¶19. Ex facie, every right which is integral to the constitutional rights to dignity, life, personal
liberty and freedom, as indeed the right to privacy is, must itself be regarded as a fundamental
right. 30 Right to privacy is enshrined under Article 21 of the constitution as the concept of
22
INDIA CONST. art. 21.
23
24
Rajgopal v. State of Tamil Nadu, 1994 6 S.C.C. 632; Warren & Brandeis, The Right to Privacy, 4 (5) HARVARD
LAW REVIEW 195,196 (1890).
25
Warren & Brandeis, The Right to Privacy, 4 (5) HARVARD LAW REVIEW 195,196 (1890).
26
Kharak Singh v. State of Uttar Pradesh, A.I.R. 1963 S.C. 1295.
27
Oliga Tellis v. Bombay Muncipal Coroporation & others (1985) 3 S.C.C. 545.
28
Francis Corlie Mullin v. Adminstrator & Union Territory of Delhi A.I.R. 1981 S.C. 746.
29
Justice K.S. Puttaswamy (Retd.) v. Union of India, A.I.R. 2015 S.C. 3081.
30
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privacy overlaps with that of liberty31 and dignity32. Hence Right to Privacy should be made a
fundamental right, under Article 21 of the Endor constitution.

THE CONSTITUTION.
¶20. It is submitted that test of Right to Privacy was given in Miller‟s case 33 . The test is
intrinsically linked with the test of voluntarily parting with information, i.e. if information is
voluntarily parted with, the person concerned can reasonably be said to have no expectation of
any privacy interest. But as per the law of Endor, Fundamental Rights cannot be waived off. 34
2.1 Fundamental Rights cannot be waived off.
¶21. It is submitted that fundamental rights were put up as a matter of public policy and therefore
doctrine of waiver cannot be applied in the case of fundamental rights. A citizen cannot invite
discrimination by telling the state „you can discriminate‟ or get convicted by waiving the
protection given to him under article 20 and 21. For many of these citizens, the choice between
accessing benefits and losing privacy is a false choice, because it requires them to choose
between a privilege that is essential for their livelihood, and a fundamental right. 35
¶22. It was held in the case of Behram Khurshed Pesikaka v. The State of Bombay36, though Part
III embodies fundamental rights, this was construed to be part of the wider notion of securing the
vision of justice of the founding fathers and, as a matter of doctrine, the rights guaranteed were
held not to be capable of being waived. It was also held in this case that these fundamental rights
have not been put in the Constitution merely for individual benefit, though ultimately they come
31
Kharak Singh v. Stale of Uttar Pradesh, A.I.R. 1963 S.C. 1295; Ramlila Maidan Incident v. Home Secretary,
Union of India, (2012) 5 S.C.C. 1.
32
33
Miller v. United States, 357 U.S. 301 (1958).
34
Behram Khurshed Pesikaka v. The State of Bombay, (1955) 1 S.C.R. 613; Basheshar Nath v. C.I.T., 1959 A.I.R.
149; Olga Tellis v. Bombay municipal corporation, (1983) 3 S.C.C. 545.
35
Aadhaar, Waiver of Fundamental Rights, and the Doctrine of Unconstitutional Conditions, INDIAN
CONSTITUTIONAL LAW AND PHILOSOPHY (Oct.6,2015,12:35PM),
https://indconlawphil.wordpress.com/2015/10/06/Aadhaar-waiver-of-fundamental-rights-and-the-doctrine-of-
unconstitutional-conditions/.
36
Behram Khurshed Pesikaka v. The State of Bombay, (1955) 1 S.C.R. 613.
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into operation in considering individual rights. They have been put there as a matter of public
policy and the doctrine of waiver.
¶23. Further in this reference it was said by Chief Justice SR Das and Justice Jivanlal Kapur
confined their views to holding that only Article 14 could not be waived, but Justice NH
Bhagwati expressed the view that a citizen could not waive any of the fundamental rights in Part-
III. Justice Subba Rao relied on the poverty and backwardness of many Indians as a ground to
support the plea that a fundamental right could not be waived. 37
¶24. Bombay high court38 held in this respect held that the state cannot arrogate to itself a right to
commit breach of the fundamental rights of any person by reasoning to principles of waiver or
estoppels or other similar principles. Even Supreme Court 39 had the same approach and said,
there can be no estoppels against the constitution which is the paramount law of the land. The
constitution has conferred fundamental rights not only to benefit individuals but to secure the
larger interests of the community. The court observed that “no individual can barter away the
freedom conferred on him by the constitution". An advance opinion was given by the apex court
in a recent decision, in which it was held that “fundamental rights cannot be bartered away. They
cannot be compromised nor there do any estoppel against the exercise of fundamental right
available under the constitution" 40.\
¶25. Similarly in current case, even if the residents give their personal information for VDR act,
with their consent, they cannot waive their fundamental right to privacy. No fundamental right
can be waived off according to Article 1341 of our constitution.
2.2 A citizen cannot waive of their Fundamental Right according to Doctrine of

Unconstitutional Conditions.
¶26. This doctrine was explained by Supreme Court as- “any stipulation imposed upon the grant
of a governmental privilege which in effect requires the recipient of the privilege to relinquish
37
Basheshar Nath v. C.I.T., 1959 A.I.R. 149.
38
Yousuf Ali Abdulla Fazalbhai v. M.S. Kashekar, M.A.N.U./M.H./0280/1982 Bom.H.C..
39
Olga Tellis v. Bombay Municipal Corporation, (1983) 3 S.C.C. 545.
40
Nar Singh Pal v. Union of India, (2000) 3 S.C.C. 588.
41
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some constitutional right.”42 It was further discussed by the court in Kerela Education bill 43, no
educational institutions can in actual practice be carried on without aid from the State and if they
will not get it unless they surrender their rights, they will, by compulsion of financial necessities,
be compelled to give up their rights under Article 30(1).
¶27. It is submitted, this doctrine posits that a condition attached to the grant of a governmental
benefit is unconstitutional if it requires the relinquishment of a constitutional right. 44 The
government may not deny a benefit to a person on a basis that infringes his constitutionally
protected interests-especially. 45
¶28. The Government of Endor can‟t lure its citizens through grants and beneficial schemes, so
as to get them involved in VDR scheme and asking them to wave of their fundamental rights as it
will be voilative of Doctrine of Unconstitutional Conditions.

¶29. It is submitted that the VDR Scheme and VDR Act 2012 enacted by the Government of
Endor is in violation of Fundamental Right guaranteed in part 3 of the Constitution of Endor.
The act passed by the state is void as it is in contravention with Article 13(2) of the Constitution.
3.1 VDR Act violates the principles of Article 14.
3.1.1 VDR Act does not full fill the test of reasonability.
¶30. VDR act violates Article 14 of the Constitution as it doesn‟t full fill the test laid done by
Supreme Court in various cases. The test of reasonability provides that: (1) the classification
proposed in the legislation must be founded on intelligible differentia and (2) there must be close
nexus between the classification and the object of the Legislation. 46
42
Ahmedabad St Xavier‟s College v. State of Gujarat, 1975 S.C.R. (1) 173.
43
In re: The Kerala Education Bill, 1959 1 S.C.R. 995.
44
Hale, Unconstitutional Conditions and Constitutional Rights, 35 COLUM. L. REV. 321 (1935).
45
Speiser v. Randall, 357 U.S. 513, 526 (1958).
46
Budhan Chaudhary v. State of Bihar, A.I.R. 1955 S.C. 191; Ameronissa v. Mehboob, A.I.R. 1953 S.C. 71; Kedar
Nath Bajoria v. State of West Bengal, A.I.R. 1953 S.C. 404; Vajravellu Mudaliar v. Special Deputy Collector for
Land Acquisition, A.I.R. 1965 S.C. 1017.
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a. Principle of Intelligible Differentia-

The expression intelligible differentia means difference capable of being understood and
should be reasonable and not arbitrary. 47 In the present case, the government seeks to
profile and classify people based on educational qualification, religion, taxpayer etc., which
is arbitrary and unreasonable.
Like Section 139AA of the Income-tax Act48 violates amongst people who have a VDR
card and who don‟t and does not let honest tax payer pay taxes because they are not
affiliated with the scheme.
b. There should be Rational Nexus between Classification and Objective Sought-
It is contended that the law can only make and set apart the classes according to the needs
and exigencies of the society.49 The legislative policy should be clear and definite and an
effective method of carrying out that policy should be vested by the statute upon a body of
administrators or officers to make selective application of the law to certain classes or
groups of persons.50
In the present case, the government of Endor seeks information relating to education,
religion, etc. from the people for the purpose of making VDR Cards which does not have
any relation with the object of the Act, and therefore the classification is not only
unreasonable but also promotes class legislation.
3.1.2 Section 7 of VDR Act is discriminatory and is in violation of Article 14 of the

Constitution of Endor.
¶31. It is submitted that Section 7 51 of VDR act states that‟s authentication of the person using
her/his VDR number can be made mandatory for the purpose of disbursement of government
subsidies, benefits, and services; and in case the person does not have an VDR number, s/he will
47
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 876 (7th ed., Lexis-Nexis Butterworth Wadhwa Publications, Nagpur
,2016).
48
Income-tax Act, 1961 § 139AA.
49
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 S.C.C. 1.
50
M. P. JAIN, INDIAN CONSTITUTIONAL LAW 917 (7th ed., Lexis-Nexis Butterworth Wadhwa Publications, Nagpur
,2016).
51
Aadhaar Act, 2016 § 7.
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have to apply for VDR enrolment.52 Hence the government is discriminating amongst people
who have VDR card and who don‟t have VDR card.
¶32. It was held that in the case of McDowell and Co.53 if an enactment challenged as violative
of Article 14, it can be struck down if it is found to be violative of the equality clause/equal
protection clause enshrined therein. The reasoning given in this case was that the judiciary can
only interpret the legislation made by the legislature in substantive due process of law and
elucidate whether it fall within the ambit of Article 14.54 Similarly on these grounds VDR act is
violative of the equal protection clause and should be struck down.
¶33. Even though the government has said it‟s a voluntary scheme 55, it has tried to make VDR
mandatory and has differentiated amongst those who possess VDR card and who don‟t possess
it. For an instance, Section 139AA of the Income-tax Act56 makes it mandatory for quoting VDR
Number for filling income tax returns and for allotment of PAN Number. One who is an honest
tax payer cant file his returns just because he does not want to give his consent to join the
scheme is voilative of Article 14. When the Aadhaar enrolment procedure is supposedly based
on informed free consent and is voluntary a person cannot be compelled by another law to waive
free consent so as to alter the voluntary nature of enrolment that is engrafted in the parent
statute.57
¶34. VDR Act perpetrates exclusion from social security schemes, and exclusion implies
discrimination which is unconstitutional. Hence the whole act should be struck down as it is in
clear derogation to Article 14 of the Constitution.
3.2 VDR act violates principle of natural justice enshrined in Article 21 of Constitution of
Endor.
3.2.1 Making VDR mandatory violates Article 21.

52
Amber Sinha, Sumandro Chattapadhyay, Sunil Abraham, & Vanya Rakesh, List of Recommendations on the
Aadhaar Bill, 2016 - Letter Submitted to the Members of Parliament, THE CENTRE FOR INTERNET AND SOCIETY
(Mar.25, 2013, 11:14 AM), https://cis-india.org/internet-governance/blog/list-of-recommendations-on-the-aadhaar-
bill-2016.
53
State of Andhara Pradesh v. McDowell and Co., 1996 A.I.R. 1627.
54
State of Andhara Pradesh v. McDowell and Co., 1996 A.I.R. 1627.
55
Moot proposition, ¶5.
56
57
The Wire Staff, The Aadhaar Debate: „The State Has No Right of Eminent Domain on the Human Body‟,THE
WIRE (Apr.28, 2017), https://thewire.in/129622/aadhaar-income-tax-supreme-court/.
-27-
¶35. It is submitted before this honorable Court that the impugned act in effect treats an
individual‟s finger prints, iris scan, blood group, spouse and child(ren) details, their educational
qualifications, number of spouses, the religion to which both spouse belong to, laws under which
marriage is solemnized, details of life-threatening diseases like AIDS, Cancer and Hepatitis-B,
permanent infertility both in male and female and criminal/civil cases pending in any court and
government loan or any other liability on the citizen as belonging to the state, blurring the
distinction between the individual and the state.58 A statutory provision that completely takes
away the voluntary nature of VDR policy and compels expropriation of a person‟s finger prints,
iris scan and other personal and very intimate information is per se violative of Article 21.
¶36. In a case59 it was held that the essential facet is to demonstrate 'narrow tailoring', i.e., that
the State must demonstrate that even if a compelling interest exists, it has adopted a method that
will infringe in the narrowest possible manner upon individual rights. 60 The petitioner submits
that neither is there any compelling State interest warranting such a harsh mandatory provision,
nor has it been narrowly tailored to meet the object, if any since the information collected is of
very private nature therefore mandatory provision makes it violative of Article 21.
¶37. According to Section 7 61 of VDR act, it is mandatory for people to have VDR card so as to
avail the beneficiary schemes of the State and the Central government. Infact Government of
Endor has ensured that the identification number has been linked to the holder‟s tax returns,
insurance policies, mobile numbers and bank accounts. 62
3.2.2 Collection of data under VDR act is violative of Right to Privacy guaranteed under
Article 21 of the Constitution of Endor.
¶38. It is submitted before that right to Privacy is the basic inalienable right of an individual 63.
He has a right to exercise control over his personality and is essential for his development as a
58
59
Anuj Garg v. Hotel Association of India, (2008) 3 S.C.C 1.
60
Id.
61
62
Moot proposition, ¶ 13.
63
Justice K.S. Puttaswamy (Retd.) v. Union of India & Ors, (2017) 10 S.C.C. 1.
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human being. The liberty of an individual is a matter of fundamental natural law, a private
preserve and must be safeguarded from unnecessary interference. 64
¶39. The right to life extends to allowing a person to preserve and protect his or her finger prints
and iris scan. Thus every individual or citizen in this country has complete control over his/her
body and State cannot insist any person for giving his/her finger tips or iris of eyes, as a
condition precedent to enjoy certain rights. 65
¶40. It is submitted that “Privacy is the constitutional core of human dignity. Privacy has both a
normative and descriptive function. At a normative level privacy sub-serves those eternal values
upon which the guarantees of life, liberty and freedom are founded. Privacy includes at its core
the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the
home and sexual orientation. Personal choices governing a way of life are intrinsic to privacy.
While the legitimate expectation of privacy may vary from the intimate zone to the private zone
and from the private to the public arenas, it is important to underscore that privacy is not lost or
surrendered merely because the individual is in a public place. Privacy attaches to the person
since it is an essential facet of the dignity of the human being” 66
¶41. It is contented that data collection by the government is not safe and could be leaked easily.
Any person by merely giving Rs. 500 can access all the VDR numbers as well as the information
associated with them. 67 It is contended that this might result into massacre; if some dictator
assumes power in the republic of Endor, as it was said by the court 68 terrorist can havoc this
information and can exploit it for their own benefit. Hence, as the most intimate
information/data is demanded under VDR scheme and is integral to personality and hence
violation of right to life under Article 21 of the Endor Constitution. Also that the collection of
data by private entities for the making of VDR card as government of Endor is not having
adequate resources and staff for this purpose .
64
Gobind v. State of Madhya Pradesh, (1975) 2 S.C.C. 148.
65
66
Id.
67
68
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¶42. The counsel submits that the Supreme Court refuting the Miller69 judgment held, „we would
not shield our account balances, income figures and personal telephone and address books from
the public eye, but might instead go about with the information written on our foreheads or our
bumper stickers‟.70
¶45. Art.21 71 , guarantees the protection of “personal autonomy” of an individual personal

autonomy includes both the negative right of not to be subject to interference by others and the
positive right of individuals to make decisions about their life, to express themselves and to
choose which activities to take part in.72 Personal autonomy is the right of every individual to
have the control of his own person free from all restraints or interferences of others. 73
¶46. In the United States this right is reinforced by a constitutional right of privacy 74. This is
known as the principle of self-determination or informed consent. The informed consent doctrine
has become firmly entrenched in American Tort Law. The logical corollary of the doctrine of
informed consent is that the patient generally possesses the right not to consent, that is, to refuse
treatment.75
¶47. Hence, the right to life and personal liberty under Art.2176 covers and extends to a person‟s
right to protect his or her body and identity from harm. The right to life extends to allowing a
person to preserve and protect his or her finger prints and iris scan.
3.3 VDR Act is violative of Article 19.
3.3.1 Making VDR mandatory is violative of Freedom of Speech and Expression.
¶48. It is submitted that VDR Act violates the Right to freedom of speech and expression
guaranteed to every citizen by the Constitution. It has a very wide ambit 77 and also includes
69
United States v. Miller, 425 U.S. 435 (1976).
70
District Registrar & Collector, Hyderabad v. Canara Bank, A.I.R. 2005 S.C. 186.
71
72
Anuj Garg v. Hotel Assn. of India, (2008) 3 S.C.C. 1.
73
Aruna Ramachandra Shanbaug v. Union of India & Ors., (2011) 4 S.C.C. 454.
74
U.S. CONST. amend. IV.
75
Schloendorff v. Society of New York Hospital, 211 N.Y. 125 : 105 N.E. 92 (1914).
76
77
2 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, (8th ed., Lexis Nexis Butterworth Wadhwa
Publications Nagpur, 2008).
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Right to remain silent 78. In this regard it is submitted that silence postulates a realm of privacy.
An individual may perceive that the best form of expression is to remain silent.79 An important
manifestation of the principle of free speech is that one who chooses to speak may also decide
what not to say. 80 The right of freedom of thought as guaranteed by the Constitution against state
action includes both right to speak freely and the right to refrain from speaking at all. 81
¶49. In the present case, the Government of Endor has ensured that the identification number has
been linked to the holder‟s tax returns, insurance policies, mobile number and bank accounts. 82
The state by making VDR Cards mandatory for variety of schemes has compelled the citizens to
part with their demographic and biometric information in clear violation of their right to remain
silent.
¶50. The reporter who published an investigative report detailing how it was able to obtain
access to the data base of VDR numbers upon paying a measly sum of Rs.500 was threatened to
file a criminal complaint for unauthorized access. 83 The government by threatening tried to
violate that‟s person Freedom to speech by creating Chilling effect on him. What has been
described as 'the chilling effect' induced by the threat of civil actions for libel is very important.84
Hence VDR Act should be struck down on the ground as it creates a chilling effect on free
speech.
¶51. Restriction by the Government does not fall within the ambit of Security of the State. The
term “security of state” refers only to serious and aggravated forms of public order e.g. rebellion,
waging war against the State, insurrection and not ordinary breaches of public order and public
85
safety, e.g. unlawful assembly, riot, affray. This restriction would be applicable, if
speechlessness leads to the commission of violent crimes, such as, murder are matters, which
would undermine the security of State.86 In fact in the present case security of the citizens is
78
Bijoe Emmanuel v. State of Kerala, A.I.R. 1987 S.C. 748; P.A. Jacob v. Superintend of Police, Kottayam, A.I.R.
1993 Ker. 1; Maruti Shripati Dubal v. State of Maharashtra, (1986) 88 Bom. L.R. 589.
79
80
Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557 (1995).
81
HAIG BOSMAJIAN, THE FREEDOM NOT TO SPEAK 178 (N.Y.U. Press, 1999).
82
83
Moot Proposition, ¶ 9.
84
Shreya Singhal v. U.O.I, (2015) 5 S.C.C. 1.
85
Ranjit v. State of Maharashtra, A.I.R.1965 S.C. 881.
86
Express Newspapers (Private) Ltd. v. Union of India, (1959) 1 S.C.R. 12; State of Bihar v. Shaila Bala, A.I.R.
1952 S.C. 329.
-31-
hampered due to the leakage of their personal data in the public. No way does speechlessness
affect the state security.
3.3.2 VDR violates Freedom to practice any profession, or to carry on any occupation, trade or
business.
¶52. It is submitted linking VRD number with pan cards and tax returns according to Section
139AA of the Income-tax Act87 is a violation of the freedom “to practice any profession, or to
carry on any occupation, trade or business”. This is an infringement to Article 19(1) (g) as
people who will not have VDR card will have an ineffective pan number and will not be able to
perform any activity which requires banking.
¶53. It was held in a case, that the correct test to apply under Article 19(6) was the test of
proportionality. 88 VDR cards were linked to pan cards as duplicate pan cards can be removed and
making a single identification number for all the purposes. VDR card was initiated to remove
disparities89 and bring in uniformity but has created more problems, such as unequal treatment
amongst people; breaching their privacy and even not letting them practice their trade freely.
¶54. Hence VDR card does not fall under the test of proportionality and should be declared
unconstitutional.
VIOLATIVE.
¶55. It is humbly submitted before the bench that the collection of biometrics and the storage of
the same in a central database 90 enables surveillance which is further fuelled by the vague
provisions of the VDR act. This causes a violation of civil liberties and International Human
Rights Principles. 91
4.1 There are major Security and Privacy issues with Biometrics and Palantir.
87
88
Modern Dental College v. State of M.P., (2016) 7 S.C.C. 353.
89
90
91
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¶56. It is submitted that understanding the fundamentals of identity and authentication is

necessary before moving to the security issues around biometrics. An identity is defined as “who
you are”, while dealing with authentication, it is defined as “How can you prove it”. A system
must maintain distinct mechanisms for identity and authentication. Identity must be unique;
Authenticators, however, don‟t have to be unique, only secret such as passwords. In this respect,
the UIDAI of India and BINKS of Endor are similar systems where biometrics is the only system
used for uniquely identifying an individual. In such a system biometric is now serving both; to
identify you and to prove that you are you, 92 and hence it‟s a one way lane.
¶57. The accuracy of biometric identification depends on the chance of a false positive: the
probability that the identifiers of two persons will match. Individuals whose identifiers match
might be termed duplicands. An experiment performed at an early stage of the Aadhaar
programme has allowed estimating the chance of a false positive: and from that to estimate the
proportion of duplicands. It finds that for a population of 1.2 billion the expected proportion of
duplicands is 1/121, a ratio which is far too high. 93
¶58. Further, a study indicates that best system was accurate 98.6 percent of the time on single-
finger tests, 99.6 percent of the time on two-finger tests, and 99.9 percent of the time for tests
involving four or more fingers. 94 So even considering a situation wherein there is 99.99 %
accuracy in the biometric, we can see that out of 1.3 billion people, 130,000 people will have
false positives. Even the biometric identity can be spoofed 95 using the captured data as it recently
happened in U.S.A.96 and Greece.97
¶59. It is contented that the sensitivity of the data that the Authority is dealing with is such that, it
cannot be duplicated again because it is capturing the human biometric 98 who cannot be changed,
92
Creating a unique identity for every resident in India, GOVERNMENT OF INDIA (Apr.,2010),
http://uidai.gov.in/documents/Creating a unique identity for every resident in India.pdf.
93
Mathew Varghese, Flaws in the UIDAI process, 51(9) ECONOMIC AND POLITICAL WEEKLY 74, 74 (2016).
94
C.L. Wilson, Biometrics Accuracy Standard, N.I.S.T. (Mar.,2003),
https://csrc.nist.gov/CSRC/media/Events/ISPAB-MARCH-2003-MEETING/documents/March2003-Biometric-
Accuracy-Standards.pdf.
95
U.N. Special Rapporteur, The Promotion And Protection Of Human Rights And Fundamental Freedoms While
Countering Terrorism, ¶7, U.N. Doc. A/H.R.C./13/37 (Dec. 28, 2009).
96
Dr. Rajarshi Pal, A Survey on Biometrics, 3 I.D.R.B.T. STAFF PAPER SERIES 1, 3 (2017).
97
Ian Steadman, Hacker arrested for allegedly stealing ID info of most of Greece, WIRED (Nov. 22, 2012),
http://www.wired.co.uk/article/greece-id-theft.
98
Aadhaar Act, 2016 No. 18, Acts of Parliament, 2016 (India).
-33-
if compromised. They are a part of bodily integrity. The concerns around biometrics are given
wind when misuse and insecurity data is obtained from India during the enrolment process of
Aadhaar, such as:
The de-duplication is carried out by private companies, some of which are not of Indian origin
and thus are also not bound by Indian law, there‟s always an apprehension of misuse of data by
these companies. General compliance and de-duplication has been an issue, with over 34,000
people being issued more than one Aadhaar number, 99 and innumerable examples of faulty
Aadhaar cards being issued. 100
¶60. Further, it contended that the provisions of the VDR Act raise concerns regarding security
of the data. In section 36,101 it is not clear if this section will apply if a person who is authorized
to collect information under the Act in general, collects some information that he/she is not
authorized to collect. Further, it is not clear why access to the core biometric information 102 is
not provided to an individual. Further, since section 6 103 seems to place the responsibility of
updating and accuracy of biometric information on the individual, it is not clear how a person is
supposed to know that the biometric information contained in the database has changed if he/she
does not have access to the same. It may also be noted that the VDR Act provides only for a
request to the BINKS for access to the information and does not make access to the information
a right of the individual, this would mean that it would be entirely upon the discretion of the
BINKS to refuse to grant access to the information once a request has been made. In these
provisions, the standard of guide furnished by the statute is vague and uncertain, amounting to
the absence of any guide at all. These provisions confer unguided power upon the executive and
should be held void for vagueness.104
99
Surabhi Agarwal, Duplicate Aadhaar numbers within estimate, LIVE MINT (Mar.5, 2013),
http://www.livemint.com/Politics/hTUpdA8tpufSHI6jfG27gP/Duplicate-Aadhaar-numbers-within-estimates-
UIDAI.html.
100
Usha Ramanathan, Outsourcing enrolment, gathering dogs and trees, THE STATESMAN (Aug.7, 2013),
https://www.thestatesman.com/india/outsourcing-enrolment-gathering-dogs-and-trees-9098.html.
101
102
103
104
Kathi Raning v. State of Saurashtra, 1952 S.C.R. 435; B.B. Rajvanshi v. State of U.P., A.I.R. 1988 S.C. 1089;
Shreya Singhal v. Union of India, A.I.R. 2015 S.C. 1523.
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¶61. Further, the concerns deepen in section 31 105 , the section does not give a right to the
individual to get the information altered but only entitles him/her to request the BINKS to make
a change and the final decision is left to the “satisfaction” of the BINKS. This section gives
excessive discretion to the authority.106 The language in this provision 107 is vague 108 and it is
unclear what 'identity information' may be shared and why it would be necessary to share such
information as VDR is meant to be only a means of authentication.
¶62. It is contended that the next big challenge around security and privacy is the central
repository where the complete database of public personal information exists, the Palantir. 109 It is
the single location where all the personal information of the residents of the country will be
stored. With Palantir, there is now a readily available single target for cyber criminals as well as
Endor‟s external enemies. 110 Attacking VDR data can potentially cripple Endor‟s businesses and
administration in ways that are inconceivable. The loss to the economy and citizens in case of
such an attack is bound to be incalculable. 111
¶63. The BINKS has been given the power to appoint any one or more entities to establish and
maintain the Palantir.112 If a private entity is involved in the maintenance and establishment of
the Palantir it can be presumed that there is the possibility that they would, to some degree, have
access to the information stored in the repository, yet there are no clear standards in the Act 113
regarding this potential access and the process for appointing such entities. The fact that the
BINKS has been given the freedom to appoint an outside entity to maintain a sensitive asset such
as the Palantir raises security concerns. The other registrars and the agencies which will capture
the data, and store the same even as they transmit the same to Palantir, may turn out be the
weakest link when it comes to the security and privacy. Those in the remote areas are expected to
be more vulnerable since they may not be able to find people to operate the centers securely.
105
106
Kathi Raning v. State of Saurashtra, 1952 S.C.R. 435; B.B. Rajvanshi v. State of U.P., A.I.R. 1988 S.C. 1089.
107
Aadhaar Act, 2016 § 8(4).
108
Kathi Raning v. State of Saurashtra, 1952 S.C.R. 435; B.B. Rajvanshi v. State of U.P., A.I.R. 1988 S.C. 1089;
109
110
111
Dr. S. Ananth , Biometrics and Its Impact in India, 3 I.D.R.B.T. STAFF PAPER SERIES 119, 143 (2017).
112
113
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This gives rise to excessive delegation of legislative powers and hence should be declared
invalid.114
¶64. Though the state of architecture can be guaranteed at the location of the Palantir, having a
similar infrastructure at every registrar or sub-registrars is doubtful considering inadequate
infrastructure and challenges related to corruption in Endor 115. It is submitted that other privacy
problems are now compounded with the linkage of bank account, tax returns, mobile numbers
and insurance policies.116 It means that the VDR number will be available in databases of each
and every service provider. Hence, any breach of the database of one provider has the potential
to compromise the details of the VDR numbers. More worrying is the question that what happens
when a corrupt leader orders a database search of all persons with specific attributes such as
name and city; does the UIDAI have the authority to refuse?
¶65. It is submitted that data compromise is a reality, it happened in Greece, in the United States
despite promises of data confidentiality from those governments. 117 Comparing Endor directly
with other countries may not be very correct, but Endor has nothing that assures its residents that
what happened in Germany and United States will not be repeated here. With weak data
protection and privacy laws coupled with security threats and illegal immigration, 118 it seems
highly improbable that such a data compromise would not happen in Endor.
¶66. In a case119 it was held that the retention of fingerprints may thus in itself give rise to
important private-life concerns and accordingly constitute an interference with the right to
respect for private life. Similarly, in Digital Rights Ireland Ltd v. Minister for Communications,
it was held that the retention of communications data "for the purpose of possible access to them
by the competent national authorities" constituted a "particularly serious interference" with the
right to respect for private and family life, home, and communications under Article 7 of the EU
Charter of Fundamental Rights.120 This article is similar to article 12 of UDHR, 121 and should be
114
Hamdard Dawakhana v. Union of India A.I.R. 1960 S.C. 554; Kishan Prakash Sharma v. Union of India, (2001)
5 S.C.C. 212; H.R. Banthia v. Union of India, A.I.R. 1970 S.C. 1453.
115
116
Id.
117
Supra note 97.
118
119
S. and Marper v. U.K. 48 E.H.R.R. 50, 78 (2008).
120
C-293/12 Digital Rights Ireland Ltd. v. Minister for Communications, Marine and Natural Resources and Others,
2014 E.C.R. I-238.
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desired to be included in domestic law as there is no conflict with regard to the same. 122The
Court found that the “mere existence” of legislation that allowed a system to secretly monitor
communications gave rise to a “menace of surveillance” that amounted to an interference with
the privacy of all those to whom the legislation may have been applied. 123 In view of these risks,
the Court concluded that there must be adequate and effective guarantees against abuse lay down
in law, and more specifically in statute.124
¶67. The trouble with VDR Act is its central design, which vests in the BINKS a conflicting dual
responsibility: to act both as the custodian of all the information that it collects and to act as a
regulator of the VDR database. This means that any breach made to the data that is centrally
amassed, unless exposed in the manner in which the newspaper report did 125, will only be known
to the BINKS. It will then be for the BINKS to decide how it wants to remedy such intrusions.
As a result, when VDR data is leaked, we will be left with no recourse to an effective remedy. It
provides no means by which a person whose data is stored to know that such an offence has been
committed; and it does not allow prosecution to be launched except on a complaint made by the
authority or someone authorized by it. 126 The non-seriousness of the Bill, and the refusal to
confront the hard issues, are a slight to democracy which must be remedied before the project
progresses to create a fait accompli.
¶68. Further, let‟s assume that an identity fraud was committed using the false fingers of a
resident - let‟s call him/her (X). When the fraud comes to light, will the VDR ever be able to
trust the fingerprints of (X) again? If VDR chooses to trust (X) fingerprints, how will the
authenticators be assured that the authentication is strong, reliable and sustainable?
¶69. Even if we assume that the VDR chooses to trust the (X)‟s fingerprints after a known false
finger fraud, VDR cannot ensure non-repudiation by (X) for any transactions. In such cases, the
integrity of UID data depends on the registrars to not be corrupt? How does the system handle
121
Universal Declaration of Human Rights, G.A. Res. 217(III) A. U.N. Doc. A/RES/217(III) (Dec. 10, 1948).
122
INDIA CONST. art. 51; Vishaka v. State of Rajasthan, A.I.R. 1997 S.C. 3011; In re Berubari Union and
Exchange of Enclaves, A.I.R. 1960 S.C. 845.
123
Klass and Others v. Germany 2 E. H. R. R. 214, 835 (1978).
124
Weber and Saravia v. Germany 46 Eur. H. R. R. S.E.5, 18 (2006).
125
Moot Proposition, ¶ 9.
126
Aadhaar Act, 2016 § 47(1).
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fraud when corrupt127 officials go hand in glove with fraudsters during such enrollment? Further,
the negative impact of an audit finding can be so low that an audit finding would be more
inconvenient rather than a deterrent and the victim of identity fraud cannot hold BINKS
responsible for loss. We must remember that this is a one-way lane; one cannot revoke his/her
fingerprint if it gets compromised. These questions remain unanswered and fuel the contention of
the petitioners that no regards are given for the overall integrity and accuracy of data with
BINKS and Palantir.
4.2 The BINKS System enables Profiling and Surveillance.
¶70. It is submitted that when a government creates a central database such as this, when it links
that database with every conceivable human activity, it naturally allows itself access to the most
intimate details of a person‟s life. The essence of individual freedom, of the right to life that
Article 21 of the Constitution128 guarantees, is that every person has a basic entitlement to bodily
integrity, to decide for they how they want to lead their lives. 129 But, how, one might wonder,
can one truly be free, when the state is watching our every step.
¶71. This mechanism for profiling and surveillance is further facilitated by the VDR Act‟s
central design, which as stated above vests in the BINKS a conflicting dual responsibility. As a
result, when our VDR data is leaked, we will be left with no recourse to an effective remedy.
¶72. BINKS is mandated to maintain records of verification along with the response provided by
Palantir.130 This record may be compared to that of an 'audit trail', as such records will reveal
much about the VDR number holder's daily activities such as access, to bank records, travel
records, education records etc .It is obvious that such information is sensitive, and may be
misused for tracking an individual's actions. In light of the same, the Bill restricts the disclosure
of this record, only allowing it when there is a specific order of a competent court for the same. It
does not involve the consent of the individual; however, given the capability of misuse of this
provision, the concerned person should at least be given the right to be notified of such
disclosure in advance, or generally be given an opportunity to resist the same.
127
128
INDIA CONST. art.21.
129
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
130
Aadhaar Act, 2016 § 32 (3); Aadhaar Act, 2016 § 8(4).
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¶73. It is submitted that this aggregation of information, commonly known as „metadata‟ gives
an insight into an individual‟s behavior, social relationships, private preferences and identity that
go beyond even that conveyed by accessing the content of a private communication, hence,
profiling the individual all along. Communications metadata, “taken as a whole may allow very
precise conclusions to be drawn concerning the private lives of the persons whose data has been
retained.”131 It creates a profile of an individual's life, including medical conditions, political and
religious viewpoints, associations, interactions and interests, disclosing as much detail as, or
even greater detail than would be discernible from the content of communications. 132 Each of
these types of information might, when analyzed collectively, reveals a person‟s identity,
behavior, associations, physical or medical conditions, race, color, sexual orientation, national
origins, or viewpoints; and enable the mapping of the person‟s location, movements or
interactions over time.133 The very act of constantly being monitored has profound impacts on
how a society, and individuals, operates.
¶74. In view of the above concerns the VDR Act 134 creates a regime where details about
individual behavior are stored and may be monitored. Consequently, a pattern of individual
preferences can be easily drawn and this may lead to individual profiling. Instead of preventing
such profiling, there are elements in the current act135 that fuel such profiling by the government.
¶75. The act136 does not exhaustively define the data that is to be collected by BINKS for issuing
VDR.137 This leaves it completely to the discretion of the BINKS to decide from time to time
what they wish to collect, in addition to what has been stated in the act. 138 Second, there is no
effective dispute resolution mechanism in the Bill for actions against BINKS for misuse of
information gathered through individual profiles.
131
C-293/12 Digital Rights Ireland Ltd. v. Minister for Communications, Marine and Natural Resources and Others,
2014 E.C.R. I-238.
132
Kate Greene, Reality Mining, M.I.T. (Feb.19, 2008), http://www2.technologyreview.com/article/409598/tr10-
reality-mining/; Alberto Escudero, Pascual & Gus Hosein, Questioning lawful access to traffic data, 47(3)
COMMUNICATIONS OF THE A.C.M. 67, 77 (2004).
133
The United States v. Jones, 565 U.S. 132 S. 945, 964 (2012).
134
Aadhaar Act, 2016 § 32 (1).
135
136
Id.
137
Aadhaar Act, 2016 § 2(j); Aadhaar Act, 2016 § 2(k).
138
Id.
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¶76. Nowhere in the act is there an acknowledgement of the extraordinary powers of Profiling,
Surveillance, and invasion of privacy by government and private agencies that the BINKS will
be facilitating, so there are no limits set on the uses of the number and of the networks of
information it could be used to generate. So convergence is facilitated, and the person has no
control over it, nor is it a wrong in law.
¶77. Further, the VDR Act, in centrally maintaining all this data, enables a form of super
surveillance, permitting the creation of a perfect authoritarian state, allowing the government to
track every one of our activities in real-time, to trace, at any given point of time, a person‟s
physical location. It emboldens the state to treat everyone one of as criminals, to make a
presumption of guilt at the grave cost of fundamental rights. This blunt tool only works because
it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen.
If plumbed, such data can reveal a rich profile of every individual as well as a comprehensive
record of people's associations with one another.
¶78. Another cause for surveillance is that the VDR number corresponds to biometrics which
may be used by an individual throughout his/her life for all major transactions. It is submitted
before the bench that information is held in what are called “silos”, that is, discrete towers
holding information that has been handed over by an individual in relation to a defined purpose.
If it were possible to create bridges to link these silos, it would wrest control of information on
the individual and make it available, metaphorically and literally, at the tap of a computer key.
The UID is poised to be the bridge between silos of personal information. This convergence of
information may be efficient for business and meet standards of efficiency, but it poses serious
security and privacy concerns. This type of surveillance undermines the rule of law, 139 by
infringing rights guaranteed in the Constitution. 140
¶79. Mass surveillance should be regarded as a highly intrusive act that potentially interferes
with the rights to freedom of expression and privacy because when such an act can be attributed
139
Leander v. Sweden, 9 Eur. H. R. R. 433, 537 (1987); Amann v. Switzerland, 30 Eur. H. R. R. 843, 861 (2000); S.
and Marper v. U.K., 48 E.H.R.R. 50, 78 (2008).
140
INDIA CONST.
-40-
to the state, it clearly constitutes, inter alia, a violation of its obligation to respect the right to
freedom of opinion and expression and threatens the foundations of a democratic society. 141
4.3 The Surveillance is in violation of Civil Liberties and International Human Rights
Principles.
¶80. The state created a national ID scheme to comply with the International Human Rights
Principles.142 The state could have done this by first enacting strong privacy and data protection
laws and then it could have gone to implement the national ID scheme.
¶81. A key difference between a „democratic society‟ and an authoritarian society is related to
assumptions and defaults. In the latter the assumption is one of suspicion and distrust. In a
democratic society, people are generally assumed to be trustworthy and worthy of respect. The
powerful idea of „innocent until proven guilty‟ is a reflection of this.
¶82. International Covenant on Civil and Political Rights 143 explicitly state that everyone has the
right to the protection of the law against unlawful or arbitrary interference with their privacy.
This implies that any communications surveillance programme must be conducted on the basis
of a publicly accessible law, which in turn must comply with the State‟s own constitutional
regime and international human rights law. 144 It is humbly submitted here that the VDR act
doesn‟t comply with any of the above as it enables surveillance, profiling, and infringes
fundamental rights of an individual.
¶83. Any capture of communication data is potentially an interference with privacy and, further,
that the collection and retention of private data amounts to an interference with privacy whether
or not those data are subsequently consulted or used. Even the mere possibility of
communications information being captured creates an interference with privacy, 145 with a
potential chilling effect 146 on rights, including those to free expression, 147 freedom of peaceful
141
U.N. Special Rapporteur, The promotion and protection of the right to freedom of opinion and expression, Frank
La Rue, ¶81, U.N. Doc. A/H.R.C./23/40 (Apr.17, 2013).
142
Moot proposition, ¶3.
143
International convention on civil and political rights art.17 , Apr 12, 1979, 999 U.N.T.S. 171
144
U.N. Special Rapporteur, The Promotion And Protection Of Human Rights And Fundamental Freedoms While
Countering Terrorism, ¶11, U.N. Doc. A/H.R.C./13/37 (Dec. 28, 2009).
145
Weber and Saravia v. Germany, 46 Eur. H. R. R. S.E. 5, 18 (2006); Malone v. The United Kingdom, 7 Eur. H. R.
R. 14, 40 (1984).
146
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assembly and association, 148 to freedom of religion, 149right to health,150 and right to fair trial.151
The fact that a person suspects that communications with his or her legal adviser may find their
way to the opposing party, or may be subject to surveillance by intelligence agencies, means that
they may then be inclined to tell only part of the truth. This has a „chilling effect‟ on free and
frank lawyer-client communication. 152 Privacy is a gateway to the enjoyment of other rights.153
154
These rights should be promoted and respected. Access to information, and the ability to
utilize that information, can directly and potentially prejudicially influence justice. These are not
just „individual‟ rights, but rights that relate to our functioning as a community, such as freedom
of association and assembly, as well as freedom of expression. It is further submitted here that
human dignity would be offended if the individual were transformed into a "mere object" of the
state.155 In Germany, the Federal Constitutional Court declared that the general personality right
protected individuals against the collection, storage, use, and dissemination of personal data. 156
These constitutional provisions protected the fundamental right of the individual to control the
use of personal information. 157 The court further emphasized the interrelationship between
human dignity, the right to personality, and the inviolability of the home, noting that all citizens
147
Universal Declaration of Human Rights, G.A. Res. 217(III) A. U.N. Doc. A/RES/217(III) (Dec. 10, 1948);
International convention on civil and political rights art.19 , Apr 12, 1979, 999 U.N.T.S. 171; INDIA CONST. art.
19.
148
19.
149
International convention on civil and political rights art. , Apr 12, 1979, 999 U.N.T.S. 17118; INDIA CONST. art.
25.
150
INDIA CONST. art. 21; State of Punjab v. M.S. Chawla, A.I.R. (1997) S.C. 1225; Maneka Gandhi v. Union of
India, A.I.R. 1978 S.C. 597.
151
226.
152
Investigatory powers bills and client confidentiality, THE BAR COUNCIL (Mar.,2016),
http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2016/march/investigatory-powers-bill-second-
reading/.
153
G. A. Res. 68/167, ¶3, U.N. Doc. A/R.E.S./68/167 (Jan. 21, 2014).
154
155
Die Entscheidungen des Bundesverfassungsgerichts[BVerfGE] [Federal Constitutional Court], Jul. 16, 1969, 27
BVerfGE 1(6) (Ger.).
156
Die Entscheidungen des Bundesverfassungsgerichts[BVerfGE] [Federal Constitutional Court], Dec. 15, 1983, 65
BVerfGE 1(1) (Ger.).
157
Id.
-42-
were entitled to a sphere of intimacy in which to conduct private conversations without fear of
government intrusion. 158
¶84. There are credible indications to suggest that digital technologies have been used to gather
information that has then led to torture and other ill-treatment.159 Concern of infringement of
right to privacy by public information has been recognized in Rotaru v. Romania.160 However,
mindful of the potential for abuse inherent in such overly broad concepts, the
161
Principles have sought to adopt a more stringent standard as to what constitutes a
“legitimate aim” in relation to mass surveillance. The requirement of proportionality is
particularly important in the context of mass surveillance, which is based on the
indiscriminate collection and retention of communications and metadata without any
form of targeting or reasonable suspicion. By its very nature, it does not involve any
form of targeting or selection, let alone any requirement on the authorities to show
reasonable suspicion or probable cause. Accordingly, mass surveillance is inevitably
disproportionate as a matter of simple definition. 162
¶85. Further, the State must ensure that any interference with the right to privacy, family, home
or correspondence is authorized by laws that:
(a) Are publicly accessible;
(b) Contain provisions that ensure that collection of, access to and use of communications data
are tailored to specific legitimate aims;
(c) are sufficiently precise, specifying in detail the precise circumstances in which any such
interference may be permitted, the procedures for authorizing, the categories of persons who may
be placed under surveillance, the limits on the duration of surveillance, and procedures for the
use and storage of the data collected; and
158
Die Entscheidungen des Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Mar. 3, 2004, 109
BVerfGE 279 (Ger.).
159
U.N. High Commissioner for Human Rights, The Right To Privacy In The Digital Age Report Of The Office, ¶14,
U.N. Doc. A/H.R.C./27/37 (June 30, 2013).
160
Rotaru v. Romania, 8 B. H. R. C. 449, 463 (2000).
161
U.N. Human Rights Council, Necessary and Proportionate Principles, U.N. (Sept.,2013),
www.necessaryandproportionate.org.
162
U.N. High Commissioner for Human Rights, The Right To Privacy In The Digital Age Report Of The Office, ¶14,
U.N. Doc. A/H.R.C./27/37 (June 30, 2013).
-43-
(d) Provide for effective safeguards against abuse. 163
The VDR act fails here, as the provisions lack specific legitimate aims, aren‟t precise and place
no limit on the duration of surveillance.
¶86. Retention of data is to be proportionate in relation to the purpose of collection and limited in
time.164 There‟s no provision in the VDR Act which suggests to the destruction or deletion of the
fingerprints after a point in time, which suggests that fingerprints are held infinitely in the
database. In S and Marper165 the "blanket and indiscriminate" retention of DNA data
amounted to a "disproportionate interference" with the private lives of those persons from
which the data had been taken. The court placed particular weight on the fact that the
material was "retained indefinitely whatever the nature or seriousness of the offence of
which the person was suspected."
¶87. It is further submitted that the “pressing and substantial objective” test applied in
Canada and the “compelling government interest” test used in the United States were
discarded as being insufficiently rigorous.166 Further, the infringement of civil liberties is not
proportionate to the end sought, that is, social welfare. It is contended that such infringement of
civil liberties where a state becomes the great eye, being ever watchful, cannot be said to be
proportionate to the claims that the state is riding on. Such infringement is not reasonable, where
on one hand we have a police raj and surveillance by the state through which businesses and the
government can know the detailed preferences and choices of an individual and create an
effective stasi state.
163
U.N. Human Rights Committee , Concluding observations on the Fourth Periodic Report Of The States of
America ¶22, U.N. Doc. C.C.P.R. /C/U.S.A./C.O./4 (Apr. 23, 2014); Weber and Saravia v. Germany. 46 Eur. H. R.
R. S.E. 5, 18 (2006); Malone v. The United Kingdom, 7 Eur. H. R. R. 14, 40 (1984).
164
Id.
165
S. and Marper v. U.K. 48 E.H.R.R. 50, 78 (2008).
166
R v. Oakes, (1986) 1 S.C.R. 103 (Can.); R. v. Big M Drug Mart Ltd. (1985) 1 S.C.R. 295 (Can.); Austin v.
Michigan Chamber of Commerce, 494 U.S. 652, S. 655 (1990); Boos v. Barry, 485 U.S. 312, S. 334 (1988);
Burson v. Freeman, 504 U.S. 191, S.198 (1992); Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S.
569, S. 573 (1987); Cornelius v. NAACP Legal Defense and Educ. Fund Inc. 473 U.S. 788, S. 800 (1985);
U.S. v. Grace, 461 U.S. 171, S. 177 (1983); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,
S. 45 (1983).
-44-
¶88. It is submitted that the framers of the Indian Constitution deliberately allowed the
possibility of judicial review of the Speaker's decision in India. Money bill owes its origin to the
British Parliament Act, 1911,167 where for the first time it was statutorily defined. 168 Evidently, a
court of law could not question the Speaker's certificate under §3. 169
¶89. The Act170 consciously avoided judicial review of the Speaker's certificate. It said that “any
certificate of the Speaker of the House of Commons given under this Act shall be conclusive for
all purposes, and shall not be questioned in any court of law” the Indian draftsmen were aware of
this text and did take it into consideration. 171
¶90. The Constitution of India incorporated the conclusive nature of the Speaker's decision into
Article 110(3) by using the words “shall be final”, but the language used in Article 110(3) 172 is
substantially different from 1911 Act. 173 Had the framers of the Constitution of India intended to
similarly exclude judicial review in India, they could have used these same phrases. Yet, they did
not use either of those phrases in Article 110(3)174. This difference in language between the 1911
Act and the Constitution of India could be attributed to three possible reasons. First, the Indian
Constitution is not based on parliamentary sovereignty. Thus, giving absolute conclusiveness to
the Speaker's certificate or decision and immunizing it from judicial review would have been
incompatible with the overall scheme of the Constitution of India. Second, importing this
provision into the Constitution of India would have amounted to an excessive delegation of
judicial powers to one legislative officer in the Lower House. Such a provision would have been
out of sync with the fundamental philosophy of the Constitution of India based on the tenet of
separation of powers. Third, under the Constitution of India, the Houses have to follow not only
procedures laid down by their own legislation and rules, but also by the Constitution itself.
167
Pratik Datta et al., Judicial Review And Money Bills, 10 N.U.J.S. L. REV. 75, 92 (2017).
168
Parliament act (Ch. 13/1911) (U.K.), § 1(2).
169
Parliament act (Ch. 13/1911) (U.K.).
170
Id.
171
3 B. SHIVARAO, THE FRAMING OF THE INDIAN CONSTITUTION: SELECTED DOCUMENTS 32 (Universal Law
Publishing, 2012).
172
INDIA CONST. art. 110, cl. 3.
173
Parliament Act (Ch. 13/1911) (U.K.).
174
-45-
Importing absolute immunity from judicial review under §3 175, would render the constitutional
procedure for lawmaking redundant in the Indian context.176
¶91. The framers of the Constitution of India did not intend to make the Speaker's certificate
"conclusive for all purposes" as is the position in England. They were merely trying to avoid the
skirmishes experienced by the House of Lords and the House of Commons in Britain for seven
hundred years, leading up to the enactment of the 1911 Act. In an attempt to avoid controversies
"about the matter outside the Lower House", the Constitution of India made the Speaker's
decision final for the purpose of the two Houses of the Parliament. 177
¶92. The judicial review of the Speaker's certificate is not excluded by Article 122(1)178 either. It
is important to understand the meaning of the word 'procedure' in this provision. Articles 118 179
to 122180 have been clubbed under the heading 'Procedure Generally'. Article 118(1) empowers
each House of the Parliament to make rules for regulating “its procedure and conduct of its
business”. Article 119 empowers Parliament to enact laws to regulate the 'procedure' in
Parliament in relation to financial business. Such law overrides any rule made under Article 118.
In this context, Article 122(1) prohibits judicial review of "irregularity of procedure." Here
'procedure' refers only to procedure in rules made under Article 118 or in a law under Article
119. Effectively, if the House chooses to make a procedure for itself, violation of such procedure
by the House itself cannot be questioned in a court of law. But if the Constitution of India
prescribes a procedure to be followed by a House (as in the case of money bills), a violation of
such constitutional procedure is not immune from judicial review under Article 122.
¶93. Therefore, the protection from judicial review granted by Article 122 cannot be stretched to
protect noncompliance or breach of a constitutional procedure like the special procedure for
money bills under Articles 109 and 110.181
175
Parliament Act (Ch. 13/1911) (U.K.).
176
Pratik Datta et al., Judicial Review And Money Bills, 10 N.U.J.S. L. REV. 75, 92 (2017).
177
Constituent Assembly Debates, GOVERNMENT OF INDIA (Mar. 23, 1949),
http://parliamentofindia.nic.in/Is/debates/vol8p6.html.
178
179
Id.
180
Id.
181
Pratik Datta et al., Judicial Review And Money Bills, 10 N.U.J.S. L. REV. 2 (2017).
-46-
¶94. Effectively, Article 255 182 treats “requirements as to recommendations and previous
sanctions” as “matters of procedure only” and therefore, outside the purview of judicial
review. 183However, Article 255 does not treat the requirement of certification of a bill as „money
bill' by the Speaker under Article 110(4) as a “matter of procedure.” This is because it uses the
words “recommendation” and “sanction” only; not “certificate” or “certification.” This assumes
significance because in the Constitution of India, recommendation" and "sanction" are given
primarily by the President and Governors; never by the Speaker. 184 Similarly, in Jairam Ramesh
vs. Union Of India185 it was stated that, “…but if the Speaker says blue is green, we will ask the
Speaker to say it is blue…that we will set right When we go wrong, larger benches set aside our
orders and correct it. So why cannot we do it (vis a vis Speaker)?”
¶95. It is submitted that while the VDR act 186 does make references to benefits, subsidies and
services funded by the Consolidated Fund of India (CFI), but what the bill does is to establish the
VDR number as the identification mechanism for benefits and subsidies funded by the CFI
which does not give it the character of a money bill. The bill merely speaks of facilitating
access to unspecified subsidies and benefits rather than their creation and provision being the
primary object of the legislation. A legislation which simply makes a charge on the Consolidated
Fund does not become a money bill if otherwise its character is not that of one. 187
¶96. This bill also does not deal with the custody of the CFI. The money paid into or withdrawn
from such funds are incidental. Besides, the bill is not an appropriation bill that appropriates
money from the CFI. It does not deal with declaring any expenditure as a charge on that fund.
Further, it does not deal with the receipt of money on account of the CFI or the public account,
or the custody or issue of such money or the audit of the accounts of the Union or states and
therefore it doesn‟t qualify as a money bill.
182
Id.
183
8 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 9060 (20th ed. Lexi Nexis, 2012).
184
INDIA CONST. art. 233; INDIA CONST. art 338; INDIA CONST. art. 243, cl.1; INDIA CONST. art. 246;
INDIA CONST. art. 269A, INDIA CONST. art. 357.
185
Jairam Ramesh v. Union Of India, W.P.(C)No.231/16.
186
187
ERSKINE MAY, PARLIAMENTARY PRACTICE (24th ed. Lexis-Nexis Butterworth Wadhwa Publications, Nagpur
2011).
-47-
AMITY NATIONAL MOOT COURT COMPETITION, 2018. PRAYER
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, this
Hon‟ble Supreme Court may be pleased to adjudge and declare that:
1. Right to Privacy is a Fundamental Right guaranteed under Article 21of the Constitution
of Endor.
2. No citizen has the right to waive off his Fundamental Right guaranteed by the
Constitution.
3. VDR Act to be unconstitutional of Fundamental Rights and should be struck down.
4. The VDR scheme enables surveillance and the provisions of the act are void and arbitrary
in nature, and violate Fundamental Rights guaranteed in the constitution and International
Human Rights Principles.
5. The VDR Act is not a money bill.
AND/OR
Pass any other order that this Hon‟ble Court may deem fit in the interests of justice, equity
and good conscience.
And for this the Petitioners/ Appellant, as is duty bound shall forever humbly pray.
Sd/-
(Counsel on behalf of the Petitioners)
-48-
AMITY NATIONAL MOOT COURT COMPETITION, 2018. PRAYER
-49-

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AMITY NATIONAL MOOT COURT COMPETITION, 2018.

AMITY NATIONAL MOOT COURT COMPETITION, 2018

IN THE SUPREME COURT OF THE REPUBLIC OF ENDOR

UNDER ARTICLE 32 OF THE CONSTITUTION OF ENDOR

IN THE MATTER OF:

BEN YODA FOUNDATION ...PETITIONER

REPUBLIC OF ENDOR … RESPONDENT

WRIT PETITION NO. ****/2017

Memorial on behalf of the Petitioner

INDEX OF AUTHORITIES ................................................................................................................5

STATEMENT OF FACTS ................................................................................................................ 13

ISSUES INVOLVED ...................................................................................................................... 15

SUMMARY OF ARGUMENTS ........................................................................................................ 16

BODY OF ARGUMENTS ............................................................................................................... 18

[ISSUE 1] RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT GUARANTEED UNDER ARTICLE 21 OF

[ISSUE 2] CITIZENS OF ENDOR CANNOT WAVE THEIR FUNDAMENTAL RIGHT, GUARANTEED BY

THE CONSTITUTION. ............................................................................................................... 23

[ISSUE 3] THE VDR SCHEME AND VDR Act 2012 is Unconstitutional..................................... 25

SAME CAN BE CHALLENGED. ................................................................................................... 45

1. AIR - All India Reporter

29. WB - West Bengal

Ahmedabad St Xavier‟s College v. State of Gujarat, 1975 S.C.R. (1) 173.................................. 26

In re: The Kerala Education Bill, 1959 1 S.C.R. 995 ................................................................. 26

Semayne v. Gresham, A.l.l. E.R. Rep. 62 .................................................................................. 21

Aadhaar Act, 2016 § 10............................................................................................................. 36

Income-tax Act, 1961 § 139AA ..................................................................................... 27, 28, 33

Die Entscheidungen des Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court],

Aadhaar, Waiver of Fundamental Rights, and the Doctrine of Unconstitutional Conditions,

Writ Petition (Civil)

The Writ Petition is filed under Article 32 of the Constitution of Endor.

[ISSUE 1] RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT GUARANTEED UNDER ARTICLE 21 OF

[ISSUE 2] CITIZENS OF ENDOR CANNOT WAVE THEIR FUNDAMENTAL RIGHT, GUARANTEED BY

[ISSUE 3] THE VDR SCHEME AND VDR Act 2012 is Unconstitutional.

SAME CAN BE CHALLENGED.

[ISSUE 1] RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT GUARANTEED UNDER ARTICLE 21 OF

[ISSUE 2] CITIZENS OF ENDOR CANNOT WAVE THEIR FUNDAMENTAL RIGHT, GUARANTEED BY

[ISSUE 3] THE VDR SCHEME AND VDR Act 2012 is Unconstitutional.

SAME CAN BE CHALLENGED.

[ISSUE 1] RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT GUARANTEED UNDER ARTICLE 21 OF

1.1 Right to Privacy has evolved in Endor through various judgments.

i. Privacy under Law of Torts -

1.2 View on Privacy by Foreign Courts Foreign Institution.

1.3 Right to Privacy comes under the ambit of Article 21.

[ISSUE 2] CITIZENS OF ENDOR CANNOT WAVE THEIR FUNDAMENTAL RIGHT, GUARANTEED BY

2.1 Fundamental Rights cannot be waived off.

2.2 A citizen cannot waive of their Fundamental Right according to Doctrine of

[ISSUE 3] THE VDR SCHEME AND VDR Act 2012 is Unconstitutional.

3.1 VDR Act violates the principles of Article 14.

a. Principle of Intelligible Differentia-

3.1.2 Section 7 of VDR Act is discriminatory and is in violation of Article 14 of the

3.2.1 Making VDR mandatory violates Article 21.

¶45. Art.21 71 , guarantees the protection of “personal autonomy” of an individual personal

3.3 VDR Act is violative of Article 19.

3.3.1 Making VDR mandatory is violative of Freedom of Speech and Expression.

¶56. It is submitted that understanding the fundamentals of identity and authentication is

4.2 The BINKS System enables Profiling and Surveillance.

(a) Are publicly accessible;

(d) Provide for effective safeguards against abuse. 163

SAME CAN BE CHALLENGED.

(Counsel on behalf of the Petitioners)

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