Memorial on Behalf of Respondent TEAM CODE – SMC-017
1ST PROF. N. R. MADHAVA MENON SAARC MOOTING COMPETITION, 2016
India Round 9th to 10th January, 2016
BEFORE THE HON’BLE SUPREME COURT OF INDISTAN In the matter of … Petitioner
Mr. X, Mr. Y and Ors.
Versus
Union of Indistan
… Respondent
Written Submissions on behalf of the Respondent,
Counsel for the Respondent.
1
Memorial on Behalf of Respondent TABLE OF CONTENTS
Table of Contents………………………………………………………………………………….2 List of Abbreviation……………………………………………………………………………….5 List of Authorities…………………………………………………………………………………6 Cases Referred………………………………………………….........................................6 Books Referred……………………………………………………………………………8 Legal Databases…………………………………………………………………………...8 Lexicons…………………………………………………………………………………...9 Legislations………………………………………………………………………………..9 Conventions……………………………………………………………………………….9 Statement of Jurisdiction………………………………………….……………………...………10 Statement of Facts………………………………………………………………………………..11 Issues Presented………………………………………………………………………………….13 Summary of Pleading…………………………………………………………………………….14 Detailed Pleadings……………………………………………………….....................................15 I.
Whether there is any “right to privacy” guaranteed under our Constitution?...15 [I.1] Introducing UID Scheme……………………………………………………….15 [I.2] JUDICIAL INTERPRETATION OF THE ‘RIGHT TO PRIVACY’ AS A FUNDAMENTAL RIGHT…………………………………………………………15 2
Memorial on Behalf of Respondent [I.2.i] Later observation by Supreme Court of smaller benches…………………17 [I.2.ii] Case-by-case development……………………………………………….18 [I.2.iii] Judgement of District Registrar v. Canara Bank………………..………18 [I.3] Establishing the Principle of Stare Decisis……………………………………..19 [I.4] Is collection of data and biometrics under the UID scheme violating Right to Privacy?.......................................................................................................................20 [I.4.i] Great benefit schemes through aadhar……………………………………20 [I.4.ii] Issued on consensual basis…………………………………………..……21 [I.5] EXISTING PROVISIONS for issuance of UID (Excerpts from NIDAI Bill, 2010) ………………………………………………………………………………..21 [I.5.i] Choice and Consent……………………………………………………….21 [I.5.ii] Security………………………………………………………………...…21 [I.5.iii] Accountability……………………………………………………………22 [I.5.iv] Verification………………………………………………………………23 [I.6] Exceptions to Right to Privacy…………………………………………………..…23 [I.7] Interim order in Justice K.S.Puttaswamy(Retd). v. Union Of India & Ors...............23 [I.8] On State Governments Collecting &Using Biometric Information………………..24 [I.9] ON UK ABANDONING ITS ID PROJECT…………………………………..…26 [I.10] ON EXISTING IDs vs. AADHAR…………………………………………..…..27 [I.10.i] For residents……………………………………………………………..27 [I.10.ii] For Registrars and enrollers…………………………………………….28 [I.10.iii] For Governments………………………………………………………28
[I.11] ON NO DATA PROTECTION LAWS………………………………………….28 3
Memorial on Behalf of Respondent [I.12]. On involvement of Private agencies……………………………………………...30 [I.13] A COMPARATIVE ANALYSIS OF THE PRIVACY SAFEGUARDS……..30 [I.13.i] INDIAN TELEGRAPH ACT, 1885……………………………………31 [I.13.ii] THE INFORMATION TECHNOLOGY ACT, 2001………………….32 [I.13.iii] THE INCOME TAX ACT, 1961………………………………………33 II. Whether UID Scheme has any legal basis?..........................................................................34 [II.1] powers of the Executive are co-extensive with the legislative…………………….35. [II.2] presently functioning under the Executive Notification dated 28th January, 2009 which is a valid authority……………………………………………………………………….37 [II.3] Article 73 of Indian Constitution also empowers…………………………………37 [II.4] Delegated legislation………………………………………………………………38 [II.5] On whether UID Scheme is helping ‘illegal migrants’……………………………42 [II.5.i] de novo exercises each time for field level data collection………………42 [II.5.ii] already built in processes to handle biometric exceptions………………42 [II.6] AFFECT ON THE MIGRANT POPULATIONS………………………………..43
Prayer…………………………………………………………………………………………….44
4
Memorial on Behalf of Respondent LIST OF ABBREVATIONS
AIR……………………………………………………………………….All India Report
Regd.........……………………………………………………………………Registered
Co……………………………………………………………………………...Company
Edn/Ed…………………………………………………………………………..Edition
ER……………………………………………………………………...English Reporter
Anr…………………………………………………………………………….Another
Ors……………………………………………………………………………….Others
Etc……………………………………………………………………………….Etcetera
Vol.........................................................................................................................Volume
SC……………………………………………………………..…………..Supreme Court
SCC…………………………………………………………...…….Supreme Court Cases
SCR…………………………………………………………...…...Supreme Court Record
Id. …..……………………………………………………………………………….Ibid
Ltd...…………………………….....…………………………………………….Limited
No.………………………………………………………………………..…….Number
Pg./p………………………………………………………………………………..Page
Para.....................................................................................................................Paragraph
Hon’ble.............................................................................................................Honourable
u/s……………………………………………………….……..……………Under Section
UOI………………………………………………………………………….Union of India
CJ.....................................................................................................................Chief Justice
UID............................................................................................................Unique Identification
UIDAI..........................................................................Unique Identification Authority of India
5
Memorial on Behalf of Respondent INDEX OF AUTHORITIES
CASES REFERRED
Travancore-Cochin vs. Bombay Co.Ltd (1952) SCR 1112
17
S.R.Chaudhuri vs. State Of Punjab, (2001) 7 SCC 126
17
M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300
17, 18
Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295
16, 17,18
R. Rajagopal & Another v. State of Tamil Nadu & Others, (1994) 6 SCC 632
17
People’s Union for Civil Liberties (PUCL) v. Union of India & Another, 17 (1997) 1 SCC 301
State Of Andhra vs. A.P.Jaiswal, (2001) 1 SCC 748
17
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378
18
District Registrar v. Canara Bank,(2005) 1 SCC 496
18
Union of India v. Raghubir Singh, A.I.R. 1989 S.C. 1933
19 6
Memorial on Behalf of Respondent
State of U.P. v. Ram Chandra Trivedi, A.I.R. 1976 S.C. 2547
19
Poolpandi v. Supdt., Central Excise, A.I.R. 1992 S.C. 1795
19
CST v. Pine Chemicals Ltd., (1995) 1 S.C.C. 58
19
C.I.T. v. Trilok Nath Mehrotra, (1998) 2 S.C.C. 289
19
State of Orissa v. Titaghur Paper Mills, A.I.R. 1985 S.C. 1293
19
S.H. Rangappa v. State of Karnataka, (2002) 1 S.C.C. 538
19
Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha, (2001) 4 S.C.C. 19 448
SBI SC/ST Employees’ Welfare Assn. v. State Bank of India, (1996) 4 20 S.C.C. 119
N.S. Giri v. Corpn. City of Mangalore, A.I.R. 1999 S.C. 1958, ¶ 12
19
P. Ramachandra Rao v. State of Karnataka, (2002) 4 S.C.C. 578, ¶ 28
20
7
Memorial on Behalf of Respondent U.S v. Dionisio, 410 US 1, 764, 35 L. Ed. 2d 67 (1973).
27
Schmerber v. CA, 384 US 757, 86 1826, 16 L. Ed. 2d 908 (1966)
27
UIDAI & Anr. v. Central Bureau of Investigation, Petition(s) for Special 30 Leave to Appeal (Crl) No(s).2524/2014
Justice K.S.Puttaswamy(Retd). v. Union Of India & Ors, Writ Petition 24 (Civil) No.494 Of 2012
Jyoti Pershad v. Union Territory of India, AIR 1961 SC 1602.
36
Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123.
37
BOOKS REFERRED
1. Basu, Durga Das, Shorter Constitution Of India 396 (14th ed., 2012) 2. Row, Sanjiva, Hand Book of Indian Copyright Act, 1957 (6th ed., 2014) 3. Aggrawal, J.P., Pleadings and Precedents in India (3rd ed., 2012) 4. Shukla, V.N. , Constitution of India – (12th Ed., 2014) 5. Jain, M.P., Indian Constitutional Law – (7th Ed. 2014) 6. Volumes I and II Basu, Durga Das, Commentary on the Constitution of India – (8th Ed., 2012) 8
Memorial on Behalf of Respondent 7. Prasad, Rajendra, Law of Social Status, 5th Ed. 1998, Hindu Law House. 8. Seervai, H.M., Constitutional law of India, 4th Ed. 2002, Volume 2, Universal Book Traders.
RESEARCH PAPERS/ REPORTS REFERRED
1. Govt. of India under Planning Commission, Notification No. A-43011/02/2009, Published in Part-I, Section-2 of the Gazette of India. 2. Sandeep Challa, The Fundamental Right To Privacy: A Case by- Case Development Sans Stare Decisis, NALSAR IJCL 225,224-230 (2012). 3. Amba Uttara Kak & Swati Malik, Privacy and the National Identification Authority of India Bill: Leaving much to the imagination, NUJS L. REV 488, 485-509 (2010). 4. Government Of India, Approach Paper For Legislation On Privacy (October 13, 2010). 5. UshaRamanathan, A Unique Identity Bill, 45 ECONOMIC & POLITICAL WEEKLY 30 10, 10-14 (2010). 6. Govt. of India under Planning Commission, Notification No. A-43011/02/2009, Published in Part-I, Section-2 of the Gazette of India. 7. 42nd Report of Standing Committee on ‘the National Identification Authority of India Bill, 2010”
9
Memorial on Behalf of Respondent LEGAL DATABASES REFERRED
1. Manupatra Online Resources, http://www.manupatra.com.
2. Lexis Nexis Academica, http://www.lexisnexis.com/academica.
3. SCC Online, http://www.scconline.co.in.
4. Oxford Dictionary, http://www.oxforddictionaries.com
5. Supreme Court of India, http://supremecourtofindia.nic.in/
6. West Law, http://www.westlawindia.co
7. Hein Online, http://home.heinonline.org/
LEXICONS
1. Aiyar Ramanathan P , Advanced Law Lexicon, 3 rd Edition, 2005, Wadhwa Nagpur. 2. Garner Bryana, Black‟s Law Dictionary,7th Edition,1999 LEGISLATIONS
1. The Constitution of India, 1950 2. Information Technology Amendment Act 2008 3. Right to Information Act 2005 4. The Telecom Unsolicited Commercial Communications Regulation, 2007 5. INDIAN TELEGRAPH ACT, 1885 6. THE INCOME TAX ACT, 1961 10
Memorial on Behalf of Respondent 7. U.S. Privacy Act of 1974 8. U.S. Computer Matching and Privacy Act, 1988
CONVENTIONS
1. United Nation Declaration of Human Rights, 1948 2. International Convention on Civil and Political Rights, 1966 3. International Covenant on Economic, Social and Cultural Rights, 1966 4. United Nation Declaration on Indigenous People, 2007 5. European Convention on Human Rights, 1953
11
Memorial on Behalf of Respondent
STATEMENT OF JURISDICTION
The Respondents has approached the Hon’ble Supreme Court of Indistan under Article 137 with reference to 139-A and 145(3). The matter has been referred by the division bench to this Hon’ble Bench of Supreme Court of Indistan.
12
Memorial on Behalf of Respondent STATEMENT OF FACTS
1. The Govt. of Indistan based on recommendations of various expert panels decided to issue unique identification numbers to such individuals to ensure that the benefits of all Government sponsored schemes and measures reach to right person and not misused.
2. The scheme of unique identification involves collection of demographic and biometric information from individuals for the purpose of issuing of unique identification numbers to such individuals.
3. The Govt. of Indistan constituted the Unique Identification Authority of Indistan (UIDAI) in January, 2010, through an executive order. A noted activist and anthropologists filed a PIL titled as Mr.X vs. Union of Indistan invoking the writ jurisdiction of Supreme Court of Indistan challenging the manner in which the Bill has been passed in the Upper House of the Parliament inspite of Standing Committee rejecting the Bill in its entirety in present form.
4. By the year 2014, the UIDAI claim to have issued unique identification number to 80% of its target population. Fearing the misuse of data at the hand of Govt. agencies and its leakage to private corporations, agencies – one of the distinguished members of the Supreme Court Bar filed another PIL titled as “Mr. Y vs. Union of Indistan” questioning the linking and availability of social security schemes to the Unique identification number.
13
Memorial on Behalf of Respondent 5. In light of the legal proposition as laid down by the Hon'ble Supreme Court, a local NGO has also questioned the legality of UID card vis- a –vis issuance of the same to the illegal migrants based on residence criteria by way of a Writ Petition in the High Court of United Province.
6. Both the PILs have been clubbed together by the Supreme Court of Indistan and it also transferred the Writ Petition pending before the High Court of United Province in exercise of power conferred under Article 139-A of the Constitution of Indistan. The Division Bench of the Supreme Court fixed the date of hearing on 18th August 2015.
7. The Division Bench of the Supreme Court prima facie opined that 'a substantial question of law' has thus arisen and passed the following reference order:-“Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.”
8. A bench of 'appropriate strength' has been constituted by the Chief Justice of Indistan to consider all the above issues raised in the moot proposition and the final hearing is scheduled to take place on 9th -10th January 2016.
14
Memorial on Behalf of Respondent ISSUES PRESENTED
ISSUE I – Whether there is any “right to privacy” guaranteed under our Constitution? Is ‘Right to Privacy’ a fundamental right? Whether collection of data and biometrics under the UID scheme violates it?
ISSUE II – Whether UID Scheme has any legal basis? Whether the manner of passing National Identification of Indistan Bill, 2010 is against the constitutional convention? Whether UID Scheme is helping ‘illegal migrants’?
15
Memorial on Behalf of Respondent SUMMARY OF ARGUMENTS
I.
Whether there is any “right to privacy” guaranteed under our Constitution?
It is humbly submitted before this Hon’ble court that the “right to privacy” is not covered under the Constitution of Indistan. The claim of some people that this right is a result of development of law is totally baseless and lacks authoritative grounds. The right to privacy has never been a part of the constitutional scheme neither by any strange method of development of law can we deduce the existence of such a right. From Kharak Singh v. State of U.P1 to various other cases (discussed in advanced arguments), one can simply conclude that there is no such right guaranteed by our constitution.
II.
Whether UID Scheme has any legal basis?
The Counsel on behalf of Respondents humbly submits before the Hon’ble Supreme Court of Indistan that this UID Scheme per se is legally propounded by Government of India. Since the Counsel has established beforehand that there is no Fundamental Right to Privacy and the Government is not at all infringing privacy rights of the citizens of this country, now the legality of UID Scheme is in question. Though there is an absence of any statute on Aadhar, still the Government of India is functioning under the Executive Order permitted by President of Indistan which is binding over UIDAI, 2 and thus shows the Legal Basis of UID Scheme.
1
AIR 1963 SC 1295
2
Govt. of India under Planning Commission, Notification No. A-43011/02/2009, Published in Part-I, Section-2 of the Gazette of India.
16
Memorial on Behalf of Respondent DETAILED PLEADINGS
QUESTION PRESENTED: I Whether there is any “right to privacy” guaranteed under our Constitution? [I.1] The counsel on behalf of respondents humbly submits before the Hon’ble Supreme Court of Indistan that the Unique Identification Scheme proposed by Government of Indistan for the welfare of our people is not in any way a threat to privacy of our people. The European Convention on Human Rights3 represents a valiant attempt to tackle this issue. Article 8 of the European Convention on Human Right states:
"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the 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 prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others." [I.2] JUDICIAL INTERPRETATION OF THE ‘RIGHT TO PRIVACY’ AS A FUNDAMENTAL RIGHT It is humbly submitted before this Hon’ble court that the “right to privacy” is not covered under the ambit of Indian constitution. The claim of petitioners that the right is a result of development of law is totally baseless and lacks ground. The right to privacy has never been a part of the
3
ETS 5; 213 UNTS 221
17
Memorial on Behalf of Respondent constitutional scheme neither by any strange method of development of law can we deduce the existence of such a right.
The most important source which can be taken account of while interpreting the constitution is the ‘constituent assembly debates’. This court in its judgment in Travancore-Cochin vs. Bombay Co.Ltd4 observed that “for proper understanding or in case of ambiguity these debates can be taken into consideration”. Further in another case the supreme court held that “it is a settled position that debates in the constituent assembly may be relied”5 these observations make clear that Constituent Assembly Debates can treated as instrument to interpret the law and moreover to know the intention of the constitution framers which may have its weights in parliamentarian democracy. The early drafted proposal of constitution contained this right but when the debates started this was not agreed upon so it should be considered that the constitution makers were not silent upon the issue on the contrary they have argued it and then denied.
Even larger bench of this court have denied it in M.P.Sharma vs. Satish Chandra observing that “when the constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American fourth amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”6 Similar question on privacy was argued upon in Kharak Singh v. State of U.P7 where the court held “….nor do we consider that Art.21 has any
4
(1952) SCR 1112
5
S.R.Chaudhuri vs. State Of Punjab, (2001) 7 SCC 126
6
AIR (1954) SC 300,Pg. 306 ¶ 18
7
AIR 1963 SC 1295
18
Memorial on Behalf of Respondent relevance in this regard and that our constitution does not in terms confer any like constitutional guarantee.” Also in Kharak Singh Case majority stated “The right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III.”
In view of the judgments of the Supreme Court in M.P. Sharma & Others v. Satish Chandra & Others,8 and Kharak Singh v. State of U.P. & Others,9 (decided by Eight and Six Judges respectively) the legal position regarding the existence of the fundamental right to privacy is doubtful.
[I.2.i]. Later observation by Supreme Court smaller benches in R. Rajagopal & Another v. State of Tamil Nadu & Others,10 (popularly known as Auto Shanker’s case) and People’s Union for Civil Liberties (PUCL) v. Union of India & Another,11 are not binding and in itself contradictory to well established principle of precedential jurisprudence of common law where higher courts judgments are regarded as law. The Supreme Court in State Of Andhra vs. A.P.Jaiswal12, emphasizing upon the need for the courts to follow the principle of stare decisis, has observed: “consistency is the cornerstone of the administration of justice. It is consistency 8
Id.
9
AIR 1963 SC 1295
10
(1994) 6 SCC 632
11
(1997) 1 SCC 301
12
(2001) 1 SCC 748
19
Memorial on Behalf of Respondent which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis etc. these rules and principles are based on public policy and if these are not followed by courts then there will be chaos in the administration of justice.” Hence the judgments relied upon by the petitioners are of smaller benches and are inconsistent with the doctrine of stare decisis and should be considered as divergent judicial opinion.
[I.2.ii]. The question of privacy as a fundamental right presented itself once again to the Supreme Court a few years later in the case of Govind v. State of Madhya Pradesh.13 The petitioner in this case had challenged, as unconstitutional, certain police regulations on the grounds that the regulations violated his fundamental right to privacy. Here the ratio of the case was qualified with the disclaimer that this right was not an absolute right and that the same could be curtailed by the State provided it could establish a “compelling public interest” in this regard. Here Mathew, J. as Lord Denning indicated that "The right to privacy in any event will necessarily have to go through a process of a case-by-case development”14
[I.2.iii]. In 2005, the Supreme Court passed one of its most important privacy related judgments in the case of District Registrar v. Canara Bank.15 The main issue, in the case, related to the privacy of a customer’s records stored by a financial institution such as a bank. The impugned
13
AIR 1975 SC 1378
14
Id. at 157¶28.
15
(2005) 1 SCC 496.
20
Memorial on Behalf of Respondent provision was held to be unconstitutional by the Supreme Court on the grounds that it failed the tests of reasonableness enshrined in Articles 14, 19 and 21 of the Constitution.
[I.3]
Establishing the Principle of Stare Decisis – The principle of stare decisis16 is of utmost
importance especially in relation to a Supreme Court decision, by virtue of Article 141 of the Constitution.17 The reasoning behind this principle is to ensure consistency and stability in the law declared by the Supreme Court.18 The Apex Court held that: “It is commonly known that most decisions of the courts are of significance not merely because they constitute adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases.”19 In addition, in cases of conflict of opinions pronounced by the Supreme Court, the opinion expressed by the larger bench strength prevails.20 Therefore, a decision by a Constitution Bench of the Supreme Court can in no circumstance be whittled down by a diametrically contrary interpretation
16
The doctrine of precedent emanates from the legal maxim stare decisis et non quieta movere which literally means “to stand by decisions and not to disturb what is settled.” 4 P. RAMANATHA AIYAR, ADVANCED LAW LEXICON 4456 (Y.V. Chandrachud et al. eds., Wadhwa & Co. Nagpur 3rd ed. 2005). 17
Art. 141 – “The law declared by the Supreme Court shall be binding on all courts within the territory of India.”
18
21 C.J.S. Courts Sec. 140.
19
Union of India v. Raghubir Singh, A.I.R. 1989 S.C. 1933, para 8.
20
See State of U.P. v. Ram Chandra Trivedi, A.I.R. 1976 S.C. 2547; State of Orissa v. Titaghur Paper Mills, A.I.R. 1985 S.C. 1293; Poolpandi v. Supdt., Central Excise, A.I.R. 1992 S.C. 1795; CST v. Pine Chemicals Ltd., (1995) 1 S.C.C. 58, at ¶ 17; SBI SC/ST Employees’ Welfare Assn. v. State Bank of India, (1996) 4 S.C.C. 119; C.I.T. v. Trilok Nath Mehrotra, (1998) 2 S.C.C. 289; N.S. Giri v. Corpn. City of Mangalore, A.I.R. 1999 S.C. 1958, ¶ 12; Lily Thomas v. Union of India, A.I.R. 2000 S.C. 1650, ¶ 56; Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha, (2001) 4 S.C.C. 448; S.H. Rangappa v. State of Karnataka, (2002) 1 S.C.C. 538, at ¶ 11; P. Ramachandra Rao v. State of Karnataka, (2002) 4 S.C.C. 578, ¶ 28. See also N.K. Jayakumar, Courts, in 10 HALSBURY’S LAWS OF INDIA 339 (M.N. Venkatachaliah et al. eds., 2001).
21
Memorial on Behalf of Respondent provided by a Division Bench of the same Court21. The instant case-comment deals with the fundamental Right to Privacy in the light of the doctrine of stare decisis.
The Counsel humbly states that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21.
[I.4]
Is collection of data and biometrics under the UID scheme violating Right to
Privacy?
It is submitted that the respondents have gone ahead with the project and have issued Aadhaar cards to about 80% of the population till 2104.22 Also a large amount of money has been spent by the Union Government on this project for issuing Aadhaar cards. Moreover it is of greater concern that the respondents do not share any personal information of an Aadhaar card holder through biometrics or otherwise with any other person or authority.
[I.4.i] The learned counsel further submits that the Aadhaar card is of great benefit since it ensures an effective implementation of several social benefit schemes of the Government like MGNREGA, the distribution of food, ration and kerosene through PDS system and grant of subsidies in the distribution of LPG. It is a well known fact that there is a large amount of diversion of PDS kerosene to the black market and also to blend with petrol and diesel. The same is true in the case of highly subsidized residential LPG (which is a welfare measure of sorts for the rich and the middle class). What is not often discussed or highlighted is the amount of black 21
Sandeep Challa, The Fundamental Right To Privacy: A Case by- Case Development Sans Stare Decisis, NALSAR IJCL 225,224-230 (2012). 22
Facts Dossier Pg.4¶17.
22
Memorial on Behalf of Respondent money generated by these illegal activities. Actually this is the mother of all corruption, generating more than Rs 45,000 crore per year. This scam is shockingly far larger than 2-G scam. It is, therefore, submitted that restraining the respondents from issuing further Aadhaar cards is incorrect and fully utilizing the existing Aadhaar cards for the social schemes of the Government should be allowed.
[I.4.ii]. Also the respondent i.e. Union of India would ensure that Aadhaar cards would only be issued on a consensual basis after informing the public at large about the fact that the preparation of Aadhaar card involving the parting of biometric information of the individual, which shall however not be used for any purpose other than a social benefit schemes.
[I.5]
EXISTING PROVISIONS for issuance of UID (Excerpts from NIDAI Bill, 2010) – [I.5.i] Choice and Consent
Sharing of information: The UIDAI will create regulations for the sharing of information of Aadhaar number holders with their written consent, with such agencies engaged in the delivery of public benefits and public services.23
[I.5.ii] Security
Security measures: The Authority shall ensure the security and confidentiality of identity information and authentication records of individuals and take measures (including security safeguards) to ensure that the information in the possession or control of the Authority (including
23
The National Identification Authority of India Bill, §23 (k),2010.
23
Memorial on Behalf of Respondent information stored in the Central Identities Data Repository) is secured and protected against any loss or unauthorized access or use or unauthorized disclosure.24
Confidentiality: Notwithstanding anything contained in any other law for the time being in force and save as otherwise provided in the proposed legislation, the Authority or any of its officers or other employee or any agency who maintains the Central Identities Data Repository shall not reveal any information stored in the Central Identities Data Repository to any person.25
[I.5.iii] Accountability
Penalties: Penalties will be issued for impersonation, intentional disclosure to unauthorized individuals, collection of information without authorization for a term which may extend to three years and with a fine which may extend to ten thousand rupees, for unauthorized tampering with the data in the Central Identities Data Repository or in any removable storage medium. Section 34, 36, 37, 39 for unauthorized access to the Central Identities Data Repository with imprisonment for a term which may extend to three years and shall be liable to a fine which shall not be less than one crore rupees. Section 38 for any other offence under the Act with imprisonment for a term which may extend to three years or with a fine which may extend to twenty-five thousand rupees or, in the case of a company, with a fine which may extend to one lakh rupees or with both. Clause 41 The provisions of the legislation will apply to any offence or contravention committed outside India. Clause 43
24
Id §. 30(1)
25
Id §. 30(2)
24
Memorial on Behalf of Respondent [I.5.iv] Verification
The UIDAI will be responsible for notifying regulations as to the verification of collected information.26
[I.6] Exceptions to Right to Privacy:
The following exceptions may be considered to right to privacy:
i.
National Security
ii.
Public order
iii.
Disclosure in public interest
iv.
Prevention, detection, investigation, and prosecution of criminal offences
v.
Protection of the individual or of the rights and freedoms of others
However, the respondents will take care of the following principles for the above exceptions that must apply to measure the extent and validity of the exception to the right:
a. Proportionality: The limitation should be in proportion to the harm that has been caused or will be caused and the objective of the limitation. b. Legality: The limitation should be in accordance with the laws in force c. Necessary in a democratic state: The limitation should extend only to that that is necessary in a democratic state.
[I.7] The counsel humbly confirms that the respondents will abide by the interim order of SC ON 11th Aug 2015 in Justice K.S.Puttaswamy(Retd). v. Union Of India & Ors27 that are following: 26
Id Rule 23(a)
25
Memorial on Behalf of Respondent 1. The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card;
2. The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen;
3. The Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme;
4. The information about an individual obtained by the Unique Identification Authority of India while issuing an Aa\dhaar card shall not be used for any other purpose, save as above, except as may be directed by a Court for the purpose of criminal investigation.
[I.8]On Collection &Use of Biometric Information:
a) Andhra Pradesh has been collecting biometric information in the form of fingerprints and iris scans from its residents for the past 5 years as part of a program introducing biometric ration cards to stop pilferage from the public distribution system (“PDS”). It is estimated that this program run by the Andhra Pradesh Civil Supplies Department covered an estimated 5.8 crore people28. The State Government collected a range of bio-metric data, including iris scans, photographs and fingerprints, in a period of 4 years. After collecting
27
Writ Petition (Civil) No.494 Of 2012
28
Amba Uttara Kak & Swati Malik, Privacy and the National Identification Authority of India Bill: Leaving much to the imagination, NUJS L. REV 488, 485-509 (2010).
26
Memorial on Behalf of Respondent the relevant data, the State Government began a structured program to sort out duplicate cards on the basis of the biometric information. This was done by comparing fingerprints and iris scans, initially at the district level and ultimately at the state level. In the process, the State Government reportedly weeded out 1.1 crore duplicate ration cards. According to these reported statistics, biometric ration cards have proven to be a great success in the State Government's efforts to streamline its PDS network and perhaps even reduce corruption and pilferage. b) Similarly, Karnataka began a project in 2006 to issue biometric cards to all citizens below the poverty line. The biometric data collected by Karnataka has been limited to fingerprints and photographs and did not include iris scans. So far, the State Government claims to have distributed 5.56 lakh biometric ration cards to below poverty line (“BPL”) families. c) Tamil Nadu is also embarking on a similar project to issue biometric ration cards which would contain fingerprint and iris scans along with photographs. The State Government is reportedly going ahead with this project independently, and without the assistance of the UIDAI. d) Apart from biometric ration cards, many states have introduced biometric driving licenses to prevent bogus or fake driving licenses. States like Andhra Pradesh, Uttar Pradesh, Bihar and Gujarat also require residents to mandatorily submit their fingerprints while applying for a driving license. Considering that driving licenses are treated as key identity documents in India, it is paramount that the respective State Governments ensure high standards of scrutiny while granting them.
27
Memorial on Behalf of Respondent e) A general review of leading newspapers reveals that there are almost no widespread protests or criticism of the efforts of various State Governments (measured in the paragraphs above) to collect biometric information for either ration cards or driving licences. The lack of any major opposition or criticism of the efforts of the various state governments indicates predominant Indian attitudes towards the issue of privacy while collecting biometric data for the purpose of authenticating identity and providing services. There also do not seem to be any media reports on either the misuse or leakage of such information, either by private contractors involved in the project or by governmental agencies implementing the project. f) It is submitted that the petitioner’s have placed reliance over the existing norms of privacy, but have failed in analyzing that many findings 29 of the U.S supreme court have implied that the use of biometrics does not invade an individual’s civil liberties or privacy.30 The Justice Wadhwa report has suggested a computer- based information system as well as the use of biometric smart cards to reduce lekage.
[I.9] ON UK ABANDONING ITS ID PROJECT: There are significant differences between the UK‘s ID card project and the UID project and to equate the two would not be appropriate. The differences are as follows:-
a) The UK system involved issuing a card which stored the information of the individual including their biometrics on the card. UID scheme involves issuing a number. No card
29
U.S v. Dionisio, 410 US 1, 764, 35 L. Ed. 2d 67 (1973).
30
Schmerber v. CA, 384 US 757, 86 1826, 16 L. Ed. 2d 908 (1966)
28
Memorial on Behalf of Respondent containing the biometric information is being issued. UK already has the National insurance number which is used often as a means to verify the identity of the individual.
b) The statutory framework envisaged made it mandatory to have the UK ID card. Aadhaar number is not mandatory.
c) The data fields were large and required the individual to provide accurate information of all other ID numbers such as driver’s license, national insurance number and other such details thereby linking the UK ID card database to all other databases on which the individual was registered. UID Scheme collects limited information and the database is not linked to other databases.
d) In UK, the legislative framework and structure approached it from a security perspective. The context and need in India is different. The UID scheme is envisaged as a mean to enhance the delivery of welfare benefits and services.
Also the Counsel submits that the analysis has been carried out on the experience of countries where National IDs are in use as well as countries where it has been discontinued. In some countries the use of smart cards to store significant data about the resident added to concerns about ID fraud and duplication. The comparisons between developed countries, which are looking at additional ID forms from a security perspective, versus India, a developing country which, like Brazil and Mexico, is attempting to, build the basic identity and verification infrastructure essential to delivering welfare benefits, and promoting inclusive growth, is not a reasonable one.
29
Memorial on Behalf of Respondent [I.10] ON EXISTING IDs vs. AADHAR: The Ministry of Planning in a written submission have inter-alia stated the following:- “in the current framework there is no single document which is uniformly acceptable as proof of identity across India – irrespective of age, gender and familial connections. Establishing identity is a challenge for the poor, particularly when they move from place to place as a consequence lack of proof of identity makes it difficult for the poor to access benefits and services.” Aadhaar number is an enabler. The benefits of aadhaar number are:-
[I.10.i] For residents: The aadhaar number will become the single source of identity verification. Once residents enroll, they can use the number multiple times – they would be spared the hassle of repeatedly providing supporting identity documents each time they wish to access services such as obtaining a bank account, passport, driving license, and so on…. the number will also give migrants mobility of identity. [I.10.ii] For Registrars and enrollers: The UIDAI will only enroll residents after deduplicating records. This will help Registrars clean out duplicates from their databases, enabling significant efficiencies and cost savings. For Registrars focused on cost, the UIDAI‗s verification processes will ensure lower Know Your Resident (KYR) costs. For Registrars focused on social goals, a reliable identification number will enable them to broaden their reach into groups that till now, have been difficult to authenticate. The strong authentication that the aadhaar number offers will improve services, leading to better resident satisfaction. [I.10.iii] For Governments: Eliminating duplication under various schemes is expected to save the Government exchequer a substantial amount. It will also provide
30
Memorial on Behalf of Respondent Governments with accurate data on residents, enable direct benefit programs, and allow Government departments to coordinate investments and share information.
Thus the counsel submits that reason for starting the project is not for overriding existing Ids. All the documents are relevant to a domain and for a service. Aadhaar number is to be used as a general proof of identity and proof of address.
[I.11] ON NO DATA PROTECTION LAWS
UIDAI has taken appropriate steps to ensure security and protection of data under this law and has incorporated data protection principles within its policy and implementation framework. Since appropriate steps have been taken, there is no dependency on the general data protection law……when the data protection framework comes into place the Authority will follow the same since a national data protection law will apply to all agencies and institutions collecting information.
Collection of information without a privacy law in place does not violate the right to privacy of the individual….There is no bar on collecting information, the only requirement to be fulfilled with respect to the protection of the privacy of an individual is that care should be taken in collection and use of information, consent of individual would be relevant, information should be kept safe and confidential. The proposed Privacy law should also seek to strike a balance between the legitimate demands of protecting individual liberties while recognizing the need for larger public interest to prevail in certain well defined circumstances.
31
Memorial on Behalf of Respondent Recently, the Government of India released an “Approach Paper for Legislation on Privacy” which recommended several data protection measures based on international experiences. 31 All cases of misuse of data are to be tried by criminal courts. Processing, storage and transmission of personal information is susceptible to abuse by authorities and several disputes can arise out this process.32
Also it is submitted that issues of linking and matching of databases need to be addressed through a data protection legislation which is currently being considered by the Department of Personnel.
[I.12]. On involvement of Private agencies
National Informatics Centre (NIC) had pointed out that the issues relating to privacy and security of UID data, in case the data is not hosted in a Government data centre may be taken into consideration. UIDAI is of the opinion that the hosting of data in a private data centre does not necessarily lead to a violation of privacy or security. Appropriate contractual arrangements are put in place with the data centre space provider to ensure security and privacy of the data.
The UIDAI has followed government procurement process and engaged the appropriate agencies for the implementation of the UID scheme. The UIDAI has also implemented a comprehensive information security policy. Central Government as well as state Governments has linked various
31
GOVERNMENT OF INDIA, APPROACH PAPER FOR LEGISLATION ON PRIVACY (October 13, 2010) available at http://persmin.gov.in/WriteReadData/RTI/aproach_paper.pdf. 32
Please refer to Chapter 8 titled GRIEVANCE REDRESSAL MECHANISM for a detailed analysis on disputes that could arise from the Aadhaar project.
32
Memorial on Behalf of Respondent social sector schemes/ projects to Aadhaar. Further, various Central and State Government organizations have notified Aadhaar as a valid Proof of Identity and Proof of Address.33 In UIDAI & Anr. v. Central Bureau of Investigation,34 the Unique Identification Authority of India (UIDAI) itself has approached the Supreme Court (SC) challenging a Bombay High Court (HC) order which asked it to consider sharing biometric data collected from people with the CBI in order to help the investigating agency solve a rape case in Goa.
[I.13] A COMPARATIVE ANALYSIS OF THE PRIVACY SAFEGUARDS:
One of the chief concerns that civil society organizations have against the UID and the Authority is that it may compromise the privacy of the aadhar number holders by providing the executive with the means to monitor each and every transaction made by the holder of the number. While it is recognized by civil liberty activists that citizens are constantly providing personal/private information when “buying a railway ticket, maintaining a bank account, registering in a university, getting work at an NREGS worksite, taking out an insurance policy, buying a motorbike, paying telephone bills, etc.”, their objection with the UID project is that it specifically provides for the convergence of all this independent information on one single platform which can be accessed at a click of the mouse.35 Strong legal safeguards to protect the UID database may have assuaged these fears.
33
vide Office Memorandum on UIDAI issued by GOI, Dated-28th March, 2013,
34
Petition(s) for Special Leave to Appeal (Crl) No(s).2524/2014
35
UshaRamanathan, A Unique Identity Bill, 45 ECONOMIC & POLITICAL WEEKLY 30 10, 10-14 (2010).
33
Memorial on Behalf of Respondent [I.13.i] INDIAN TELEGRAPH ACT, 1885
The Indian Telegraph Act, 1885 is one of the legislations which regulates the telecom sector in India. Under Section 5 of this Act, the Central Government may “in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order.
Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.”
[I.13.ii] THE INFORMATION TECHNOLOGY ACT, 2001 The Information Technology Act, 2001 (“IT Act, 2001”) is the legislation which recognizes and regulates electronic communication, electronic data-inter-change and in general, electronic commerce. Section 69 of this legislation states that “If the Controller is satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, the security of the State, friendly relations with 34
Memorial on Behalf of Respondent foreign States or public order or for preventing incitement to the commission of any cognizable offence, for reasons to be recorded in writing, by order, direct any agency of the Government to intercept any information transmitted through any computer resource.” The “Controller”' as defined in the IT Act is a bureaucrat who is controlled completely by the Central Government. Similarly Section 29 of the same legislation states “(1)Without prejudice to the provisions of subsection (1) of section 69, the Controller or any person authorized by him shall, if he has reasonable cause to suspect that any contravention of the provisions of this Act, rules or regulations made there under has been committed, have access to any computer system, any apparatus, data or any other material connected with such system, for the purpose of searching or causing a search to be made for obtaining any information or data contained in or available to such computer system.” Both of these provisions therefore vest in the Controller, a bureaucrat, the right to monitor the electronic activities of Indian citizens without any judicial supervision.
[I.13.iii] THE INCOME TAX ACT, 1961
Similarly Section 132 of the Income Tax, Act 1961 gives Officers of the Income Tax Department sweeping powers to carry out search and seizure operations provided they have a ‘reason to believe’ that any person is in possession of undisclosed wealth be it in the form of money, bullion, jewellery etc. This provision of law authorizes officers the rank of Director General or Director or Commissioner or Chief Commissioner or Additional Director or Additional
35
Memorial on Behalf of Respondent Commissioner or Joint Director or Joint Commissioner to carry out such search seizure operations without requiring any prior judicial approval. It is obvious from above the Indian Parliament’s approach to privacy safeguards has been rather relaxed.
36
Memorial on Behalf of Respondent QUESTION PRESENTED: II
Whether UID Scheme has any legal basis? The Counsel on behalf of Respondents humbly submits before the Hon’ble Supreme Court of Indistan that this UID Scheme per se is legally propounded by Government of India. Since the Counsel has established beforehand that there is no Fundamental Right to Privacy and the Government is not at all infringing privacy rights of the citizens of this country, now the legality of UID Scheme is in question. Though there is an absence of any statute on Aadhar, still the Government of India is functioning under the Executive Order permitted by President of Indistan which is binding over UIDAI,36 and thus shows the Legal Basis of UID Scheme.
[II.1] The counsel of Respondents submits that it is a well settled position that powers of the Executive are co-extensive with the legislative power of the Government and that the Government is not debarred from exercising its executive power in the areas which are not regulated by specific legislation. It has been opined that till the time such legislation is framed the Authority can continue to function under the executive order issued by the Government and the scheme that may be prepared by the UIDAI. It was also opined that the Authority can collect information/data for implementation of the UID scheme. Such implementation can be done by giving wide publicity to the scheme and persuading the agencies/individual to part with necessary information. The UIDAI has not faced issues such as breach of security and confidentiality, manipulation of biometrics, unauthorized access to the CIDR or other related
36
Govt. of India under Planning Commission, Notification No. A-43011/02/2009, Published in Part-I, Section-2 of the Gazette of India.
37
Memorial on Behalf of Respondent offences since its inception. Till the time Parliament passes the Bill, these matters will be covered by the relevant Laws.37
[II.2] Ministry of Law & Justice (Department of Legal Affairs) clarifies that the competence of the Executive is not limited to take steps to implement the law proposed to be passed by Parliament. Executive Power operates independently. The Executive is not implementing the provisions of the Bill. The Authority presently functioning under the Executive Notification dated 28th January, 2009 is doing so under valid authority and there is nothing in law or otherwise which prevents the Authority from functioning under the Executive Authorization. The power of Executive is clear and there is no question of circumventing Parliament or the Executive becoming a substitute of Parliament. On the contrary, what is sought to be done is to achieve a seamless transition of the authority from an Executive Authority into a statutory authority. All the expenditure which is being incurred is sanctioned by Parliament in accordance with the financial procedure set forth in the Constitution. If the Bill is not passed by any reason and if Parliament is of the view that the Authority should not function and express its will to that effect, the exercise would have to be discontinued. This contingency does not arise. The present Bill being implemented without Parliaments’ approval does not set a bad precedent in the Parliamentary form of Government. On the contrary, the fact that the Authority is sought to be converted from an Executive Authority to a statutory authority, it underlines the supremacy of Parliament.
[II.3] Article 73 of Indian Constitution also empowers Government to continue with UID Scheme. It defines the extent of executive power of the Union as: 37
42nd Report of Standing Committee on ‘the National Identification Authority of India Bill, 2010”, ¶ 14.
38
Memorial on Behalf of Respondent (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the government of India by virtue of any treaty on agreement: Provided that the executive power referred to in sub clause (a) shall not, save as expressly provided in this constitution or in any law made by Parliament, extend in any State to matters with respect in which the Legislature of the State has also power to make laws
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution Council of Ministers [II.4] In the case of Jyoti Pershad v. Union Territory of India38 the Supreme Court defined the broad scope of delegated legislation in the following manner: “So long as the Legislature indicates, in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate. If the 38
AIR (1961) SC 1602.
39
Memorial on Behalf of Respondent power or discretion has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating the law.” Another case Kathi Raning Rawat v. State of Saurashtra39 was decided on remarkable facts (entailing selection of case by the State Government to be tried by special courts), but the preamble in that case provided that the purpose of the Act was to provide for “public safety, maintenance of public order and preservation of peace and tranquility in the State of Saurashtra”. The validity of this provision was upheld on the ground that the impugned ordinance had been passed to combat the increasing frequency of certain types of regional crime. The two-fold classification on the lines of type and territory adopted in the impugned ordinance was held reasonable and valid. It was held that “the reference to public safety, maintenance of public order and preservation of peace and tranquillity in the preamble shows a definitive objective and furnishes a tangible and rational basis of classification to the State Government for the purpose of applying the provisions of the Ordinance and for choosing only such offences or cases as affect the public safety, maintenance of public order and preservation of peace and tranquility to refer to special courts.
Thus the Counsel for respondent humbly submits that the Supreme Court has given the Parliament considerable discretion in delegating its powers to the Executive.
39
AIR (1952) SC 123.
40
Memorial on Behalf of Respondent [II.5] On whether UID Scheme is helping ‘illegal migrants’ [II.5.i] The UID scheme was extended to all residents and other categories of individuals to gradually do away the de novo exercises each time for field level data collection. Simultaneously, it would also ensure that links to more and more identity based databases are created by inclusion of the UID number in their databases
[II.5.ii] While there may be a number of factors contributing to the failure to enroll (like geography, age groups, occupation etc.). For enrolment purpose, UIDAI has already built in processes to handle biometric exceptions.
It is clarified that-
(i) aadhaar is sufficient KYC for opening all bank accounts now. This includes no-frill accountsas per Reserve Bank‘s circular dated January 27, 2011 – and any bank account as per September 28, 2011 circular.
(ii) Banks may ask for additional proof of residence if the current residence is not the same as the address given on the aadhaar document. This procedure is consistent with bank policies applicable to all other officially valid documents including passport, driving license and is not specific to aadhaar.
Aadhaar number is not a proof of citizenship or domicile [Clause 6 of the Bill]. It only confirms identity and that too subject to authentication [Clause 4(3)]. This is clearly mandated in the NIDAI Bill and the communication being sent to the resident. It is the responsibility of the Registrars to enroll a resident after due verification as per the procedure lay down by the UIDAI.
41
Memorial on Behalf of Respondent If a person is not a resident as per the Bill, the Authority is being vested with the power to omit/deactivate the aadhaar number [Clause 23 (2) (g)]. Subsequent attempts to enter the system can be detected.
[II.6] AFFECT ON THE MIGRANT POPULATIONS
It is no secret that there are millions of illegal immigrants who have jumped borders in search of livelihood in India, most of which are Bangladeshis. Having said that, the government also recognizes these "invisible" populations as, the UID project provides for “residents” under its mandate as opposed to not providing UID to only citizens. But as this project moves forward in its implementation, these groups would be clearly identifiable. Now, this may not be a very good thing, as it diminishes a vast abuse of powers.
If an illegal immigrant is to get a UID he/she may also have to provide the proof of permanent address. The field for address is mandatory and hence, in the absence of any documents for proof of address the Government can easily identify illegal immigrants. Moreover regarding the question of ‘introducer to migrants’, in that case those introducers who will introduce any illegal migrants would be handled within the ambit of stringent laws made by Government of India.
On the whole, Counsel of Respondent most respectfully submits that for governance to be truly effective, it is necessary to track and guide development. This can be achieved only by further integration of different agencies of the government and ensuring proper delivery of entitlements to the beneficiaries. Such integration would result in improvement of delivery which necessarily entails plugging of leaks and remedying corruption. The manner in which this may be done is multivariate. In the context of the UID project, it is envisaged that by way of creating a common
42
Memorial on Behalf of Respondent denominator in terms of a universal identifier, for all the beneficiaries, tracking benefits and development would be made a lot easier. This common denominator would be further used as a platform on which integration between different agencies of the government would be enabled.
43
Memorial on Behalf of Respondent PRAYER
Wherefore, in the light of the questions raised, arguments advanced and authorities cited, it is most humbly prayed and implored before the Hon’ble Supreme Court of Indistan that it may be pleased to hold, adjudge declare and
(i)Pass such an order that Right to Privacy is not at all a fundamental right and UIDAI Scheme is not breaching individual’s Privacy Rights. Also,
(ii) Pass an order that UIDAI Scheme has definitely a legal basis both in terms of Executive Order and other Migrants.
And, (iv) Also pass further orders as the Hon’ble Supreme Court may deem fit and proper in the facts and circumstances of the case.
All of which is most respectfully submitted. (Counsel for the Respondent)
44
