TEAM CODE: R15

IN THE SUPREME COURT OF MANDIA

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF

MANDIA

CASE CONCERNING CHARGES OF INFRINGEMENT OF FUNDAMENTAL

RIGHTS DUE TO PEHCHAAN ACT, 2014

MR. SATISH DHANKAR

(APPELLANT)
V.
UNION OF MANDIA
(RESPONDENT)

THE CNLU GENERAL INTRA MOOT COURT COMPETITION 2017

SEPTEMBER 2017

WRITTEN SUBMISSION ON BEHALF OF RESPONDENT

 TABLE OF CONTENTS

TABLE OF CONTENTS………………………………………………………………………i
TABLE OF AUTHORITIES………………………………………………………………….ii
STATEMENT OF JURISDICTION…………………………………………………………..v
QUESTIONS PRESENTED………………………………………………………………….vi
STATEMENT OF FACTS…………………………………………………………………..vii
SUMMARY OF ARGUMENTS……………………………………………………………..ix
PLEADINGS ADVANCED…………………………………………………………………..1
1. Whether the Petitioner’s (Mr. Satish Dhankar) special leave petition against the
judgement of Hon’ble High Court of Nelhi is maintainable?..................................1
1.1 No exceptional or special circumstances exist and substantial justice has been
done in the present case…………………………………………………………...1
1.2 No irregularity of procedure or violation of natural justice is being done………..3
1.3 Even if it is presumed that the matter involves a ‘question of law’, ‘no substantial
question of law’ is involved……………………………………………………….5
1.4 There are no grounds for challenging the Constitutionality of law……………….6

2. Whether the Pehchaan Act, 2014 violates the fundamental rights under Article
21 and 19(a)?............................................................................................................7
2.1 All the fundamental rights provided to the citizens are subject to reasonable
restrictions…………………………………………………………………………7
2.1.1 Disclosure of Information about Health amounts to Reasonable
Restriction……………………………………………………………..9
2.1.2 If the restrictions imposed are for public good and social welfare, they
can very well be imposed…………………………………………….11
2.2 Possibility of abuse of a fundamental right is not a ground to question a
legislature………………………………………………………………………...13
2.3 The burden of proof of the violation of fundamental rights lies with the
appellant…………………………………………………………………………14

PRAYER FOR RELIEF……………………………………………………………………16

i
 TABLE OF AUTHORITIES

Statute

1. The Constitution of India, 1950

Cases

1. Abbas vs. Union of India, AIR 1971 SC 481 : (1971) 2 SCR 446 : (1970) 2 SCC 780;
Casebook (I), - 6
2. Annie Varghese vs State of Kerala, (1999) 6 SCC 551 – 3
3. Antulay vs Nayak, AIR 1988 SC 1531 (paras 60-61) : 1988 (Supp-1) SCR 1 : (1988) 2
SCC 602 – 6
4. Ash Mohammed v. Shiv Raj Singh (2012) 9 SCC 446 : (2012) CrLJ 4670. -12
5. Baigana v Deputy Collector of Consolidation, [1978] 3 SCR 509
6. Beauharnis vs Illinois, (1952) 343 US 250 – 13
7. Bihar Legal Support Society Vs. Chief of Justice of India and Anr. (1986) 4 SCC 767
–5
8. Bowers v. Hardwick, 478 U.S. 186 (1986) – 11
9. Cf. Kanahiyalal Lohia vs. Commissioner for Income Tax, AIR !962 SC 1323 (1325) :
1962 (2) SCR 839 – 3
10. Cf. Rama Reddy vs State of AP., (1988) 2 U.J.SC 343 – 13
11. Chandra Singh vs. State of Rajasthan, (2003) 6 SCC 545, 562-63 – 4
12. Charan vs Union of India, A. 1990 SC 1480 – 13
13. Council of Scientific and Industrial Research v. K.G.S. Bhatt (1989) AIR 1972 (SC) –
1
14. Dadan vs State Of M.P [2008] Insc 1855 – 5
15. Deputy Chief Controller vs Kosalaram , AIR 1971 SC 1283 : 1971 CrLJ 1081 :
(1970) 3 SCC 82 – 5
16. Dhakeswari Cotton Mills Ltd. v CIT West Bengal (1955) AIR 65 (SC) – 2
17. Garg vs Union of India, A. 1981 SC 2138 – 13

ii
18. Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148: AIR 1975 SC 1378. – 9
19. Harakchand vs Union of India, AIR 1970 SC 1453 – 8
20. Hari Singh Nalwa vs Kartar Singh Bandana, AIR 2001 P&H 86 – 13
21. Hero Vinoth v. Seshammal (2006) AIR 2234 (SC). – 5
22. Indrajeet vs State of UP., AIR 1979 SC 1867 : (1980) 1 SCR 255 : (1979) 4 SCC 246
–6
23. Jayabalan vs Union Territory of Pondicherry, (2010) I SCC 199, 210, - 6
24. Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295 – 8
25. M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd. I (2002)
ACC 32, 2002 ACJ 32, 2001 (5) ALT 154 – 10
26. M/s. Bengal Chemical & Pharmaceutical Works Ltd. vs. Their Employees (1959)
Suppl. 2 SCR 136 at 141 – 2
27. Mahadayal Premchandra vs C.T.O. AIR 1958 SC 667 : 1959 SCR 551 – 3
28. Maneka Gandhi vs Union of India, AIR 1978 SC 597 : (1978) 2 SCR 612 : (1978) 1
SCC 248 - 6
29. Mathai @ Joby v George ((2010) 4 SCC 358) – 3
30. Middleton v. Texas Power and Light Company 248 U.S. 1152,157. – 14
31. Mr. Surupsingh Hrya Naik v.State Of Maharashtra AIR 2007 Bom 121, 2007 (109)
Bom L R 844, 2007 (4) MhLj 573 – 10
32. Mr. X v. Hospital Z, Supreme Court of India ,(1998 and 2002) – 10
33. Namit Sharma v. Union of India,(2013) 1 SCC 745 – 15
34. Nand vs State of Punjab, AIR 1981 SC 2041 (para 9) : (1982) 1 SCR 718 : (1981) 4
SCC 327 – 6
35. Potthuma vs State of Kerela, AIR 1978 SC 771 – 8
36. Raghunath G. Pauhale v Chagan Lal Sundarji & Co.(1999) 8 SCC 1 (SC). – 4
37. Ram Narain vs State, 1953 SCR 652 – 14
38. Sadhuram Bansal vs Pulin Behari Sarkar, AIR 1984 SC 147 : (1984) 3 SCC 410 – 4
39. Shri Ram Krishna Dalmia vs Shri Justice S. R. Tendolkar & Others 1958 AIR 538,
1959 SCR 279 – 15
40. Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312 : (2011) 1
SCC 694 : (2010) 4 KLT 930 – 12
41. Southern Railway Co. v. Greene (216 U.S. 400 at 412) – 15
42. State of H.P. v. Kailash Chand Mahajan (1992) AIR 1277 (SC) – 1

iii
43. State of Maharashtra vs Mayer Hans George AIR 1965 SC 722 : 1965 (1) SCR 123 :
1965 (1) CrLJ 641 – 5
44. State of MP vs Ramesh (2009) 11 SCC 330, 333 – 6
45. State of U.P. v Ram Manorath (1972) 3 SCC 215 (SC) – 3
46. State of Uttar Pradesh vs Ashok Kumar Srivastava, AIR 1992 SC 840 : (1992) 2 SCC
86 : 1992 CrLJ 1104 – 6
47. Sunil Fulchand Shah v. Union of India, AIR 2000 SC 1023 – 12
48. The State Of Bombay And Another vs F.N. Balsara 1951 AIR 318, 1951 SCR 682 –
15
49. The State Of West Bengal vs Anwar Ali Sarkar, AIR 1952 SC 75, 1952 CriLJ 510,
1952 1 SCR 284 - 15
50. UOI v Rajeswari & Co.(1986) AIR 1748 (SC). – 3
51. Vide Skinner v. Oklahoma (316 U.S. 535 at 540) – 15

Books

1. M.P Jain, Indian Constitutional Law, (16th Edition Lexis Nexis Butterworth Wadhwa
Nagpur 2011) – 1
2. M.P Jain & S.P Jain. Principles of Administrative law Volume II, (4th Edition Lexis
Nexis Butterworth Wadhwa Nagpur 2013)

International Conventions and Constitutions

1. European Convention on Human Rights and the European Charter in Europe.

2. Canadian Charter of Rights
3. International Covenant
4. Universal Declaration
5. European Convention
6. Constitution of Zaire
7. Constitution of West Germany

iv
 STATEMENT OF JURISDICTION

The respondents have appeared to the Hon’ble Supreme Court of Mandia in response to the
Special Leave Petition filed by the petitioners. The petition has been filed under Article 136of
the Constitution. The memorandum of the respondents set forth the Facts, Contentions and
Arguments present in the case.

v
 QUESTIONS PRESENTED

Pursuant to the Constitution of India, 1950, the questions presented before the Hon’ble
Supreme Court of Mandia are:

 With regard to maintainability of the case.

1. Whether the Petitioner’s (Mr. Satish Dhankar) special leave petition against the
judgement of Hon’ble High Court of Nelhi is maintainable?

 With regard to charges of infringement of fundamental rights due to Pehchaan

Act, 2014.
2. Whether the Pehchaan Act, 2014 violates the fundamental rights under Article 21 and
19(a)?

vi
 STATEMENT OF FACTS

1. The government of Mandia formulated a policy named ‘Pehchaan’ for profiling of its
citizens and to provide them with a card called Pehchaan, to identify citizens for
various benefits given by the government. The citizens would be provided Pehchaan
cards free of cost. The philosophy behind this policy is ‘Zero Tolerance for
Corruption.’ The card would help to check the duplicity of Election cards and also
increase the tax collection as the card would be linked to bank account and PAN
cards.
2. On 12th October, 2009 the government issued a notification that Pehchaan policy also
aims at eliminating terrorism by finishing off sleeping modules and local support base
of terrorists and terror finance would also be curbed through Pehchan and hawala
transactions and foreign contributions to NGOs can be checked.
3. On 30th November 2009, the government under the chairmanship of IT Specialist Mr.
Rajeev Khanna constituted the National Unique Identification Authority, which
started its works of making Pehchaan cards and assigned the task to private entities,
which further outsourced the work to private vendors in every part of Mandia to
provide the citizens with the card by taking their basic and personal details.
4. On 22nd January, the petitioner Mr. Satish Dhankar challenged the policy of
mandatory Pehchaan cards in the High Court of Nelhi through a PIL contending that
the policy infringes fundamental rights like right to privacy and right to freedom of
speech and expression. He also said that there was no law or act regarding the making
of the cards.
5. On 24th July 2014, the government made the Pehchaan cards mandatory for seeking
benefits under social welfare schemes of the government. To this the petitioner
contended that the government could not make the cards mandatory during the
pendency of the case. On 27th July 2014, the government passed an interim order
directing the government not to make Pehchaan cards mandatory.
6. On 28th July 2014, the government pled in the court to make the cards mandatory for
non-benefit schemes or programmes of government. The high court allowed the plea.
7. On 11th August 2014, the government enacted a law called the Pehchaan Act, 2014
making the cards mandatory for all schemes providing a statutory basis to the

vii
 National Unique Identification Authority. The act also had a chapter on data
protection and penalties for data leakage.
8. The petitioner again filed a fresh application in the High Court to amend his petition
to include the challenge to Pehchaan Act. The court allowed his plea. On 13 th January
the government issued a notification making the card mandatory for every scheme and
programme and fixed March 2016 as the deadline for it. The petitioner prayed for a
stay on the same but the court refused, however, the court agreed for a day to day
hearing keeping in view the urgency of the matter.
9. The petitioner claimed that the cards violated the fundamental rights provided to the
citizens and also that the data collected is not safe and also that an IIT passed graduate
had hacked into the Pehchaan database. The respondent during the proceedings
promised that substantive laws would soon be brought for the protection of data.
10. On hearing the matter the High Court rejected the PIL and held that Pehchaan Act,
2014 is constitutional and the government can make the cards mandatory.
11. The petitioner now approached the Supreme Court through a special leave petition
praying to quash the judgement of the High Court.

viii
 SUMMARY OF ARGUMENTS

1. The Special Leave Petition filed by Mr. Satish Dhankar is not maintainable in
the Hon’ble Supreme Court of Mandia.
It is most respectfully submitted before the Hon’ble Court that the present case has been
brought before the Supreme Court of Mandia under Article 136 of the Constitution. It is
pleaded before the court that the present case is not maintainable as under Article 136, the
Supreme Court has a discretionary power to accept the case and the appellant does not
possess a right to be heard. In the present case substantial justice has been done by the High
Court of Nelhi keeping in mind the public order and social welfare. Hence, the special leave
petition should be dismissed.

2. The Pehchaan Act, 2014 does not violate any fundamental right.
The Appellant has contended that the Pehchaan Act, 2014 violates the fundamental rights of
life and freedom of speech and expression. It is pleaded by the respondents that every right is
subject to reasonable restriction and if any restriction is for public good and social welfare, it
can very well be imposed. Pehchaan Act, 2014 aims at reducing corruption, terrorism and
other social evils which is for public good, High Court of Nelhi has considered the same and
regarded the Act as constitutional. Moreover, the burden of proof that an act infringes a
fundamental right is on the appellant and unless the same is proved, it is humbly pleaded
before the court that it should consider the Pehchaan Act, 2014 constitutional.

ix
 PLEADINGS ADVANCED

The following submissions have been made before the Hon’ble Supreme Court of Mandia.
The present case has been initiated under the Article 136 of the Constitution of Mandia
seeking Special Leave. The respondents humbly submit before the Hon’ble Court the
following issues:

1. Whether the Petitioner’s (Mr. Satish Dhankar) special leave petition against the
judgement of Hon’ble High Court of Nelhi is maintainable?

It is humbly submitted before the Hon’ble court that the Supreme Court does not have
jurisdiction over the present matter brought before it. As specified in Article 136 of the
constitution the Supreme Court has a discretionary power over the cases brought before it
through special leave petition. The SC has the authority to accept or reject the special leave.
Special Leave is granted only in cases where there is substantive question of law or natural
justice has not been done. Here, in the case at hand the Hon’ble High Court has given a
judgement which is for public good and social welfare. Hence, the Supreme Court should not
grant the special leave and hence the case is not maintainable in the court.

1.1 No exceptional or special circumstances exist and substantial justice has been
done in the present case.

It is contended by the respondent that the appellant must show that exceptional and special
circumstances exist and the court will not interfere with a decision of the lower court unless it
is shown that there is manifest injustice and substantial question of public importance. If the
appellants are able to prove the same, only then the court would exercise its overriding
powers under Article 136.1 Special leave will not be granted when there is no failure of
justice or when substantial justice is done, though the decision suffers from some legal
errors.2

1
M.P Jain, Indian Constitutional Law, (16th edn Lexis Nexis Butterworth Wadhwa Nagpur 2011) 5776; see also
Constitution of India, 1950.
2
Council of Scientific and Industrial Research v. K.G.S. Bhatt (1989) AIR 1972 (SC); see also State of H.P. v.
Kailash Chand Mahajan (1992) AIR 1277 (SC)

1
In the case at hand the High Court of Nelhi has given substantial justice and the judgement
does not violate the natural justice. The High Court has even justified its decision of declaring
the Pehchaan Act constitutional and making Pehchaan mandatory for all the citizens of
Mandia.3 This clearly shows that this law is well settled in this regard and is for public good
and social welfare. Article 136 of the Constitution does not confer a right of appeal to any
party from the decision of any tribunal, but it confers a discretionary power on the Supreme
Court to grant special leave to appeal from the order of any tribunal in the territory of India. It
is implicit in the discretionary reserve power that it cannot be exhaustively defined. It cannot
obviously be so construed as to confer a right to a party where he has none under the law. The
Industrial Disputes Act is intended to be a self-contained one and it seeks to achieve social
justice on the basis of collective bargaining, conciliation and arbitration. Awards are given on
circumstances peculiar to each dispute and the tribunals are, to a large extent, free from the
restrictions of technical considerations imposed on courts. A free and liberal exercise of the
power under Art. 136 may materially affect the fundamental basis of such decisions, namely,
quick solution to such disputes to achieve industrial peace. Though Art. 136 is couched in
widest terms, it is necessary for this Court to exercise its discretionary jurisdiction only in
cases where awards are made in violation of the principles of natural justice, causing
substantial and grave injustice to parties or raises an important principle of industrial law
requiring elucidation, and final decision by this Court or discloses such other exceptional or
special circumstances which merit the consideration of this Court.4
It is not possible to define the limitations on the exercise of the discretionary jurisdiction
vested in this Court under Article 136. It being an exceptional and overriding power,
naturally, has to be exercised sparingly and with caution and only in special and
extraordinary situations.5 Article 136 does not give a right to a party to appeal to the SC
rather it confers a wide discretionary power to interfere in suitable cases.6
Article 136, no doubt, states that the Supreme Court may in its discretion, grant special leave
to appeal from any judgment, decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of Mandia.

3
Moot Proposition, ¶ 25.
4
M/s. Bengal Chemical & Pharmaceutical Works Ltd. vs. Their Employees (1959) Suppl. 2 SCR 136 at 141
5
Dhakeswari Cotton Mills Ltd. v CIT West Bengal (1955) AIR 65 (SC); see also H.M. Seervai, Constitutional
Law of India (4th edn. Vol 1 2010).
6
Ibid.

2
The use of the words "in its discretion" in Article 136 clearly indicates that Article 136 does
not confer a right of appeal upon any party but merely vests a discretion in the Supreme
Court to interfere in exceptional cases.
Hence, some broad guidelines need to be laid down now by a Constitution bench of this
Court otherwise this Court will be flooded (and in fact is being flooded) with all kind of
special leave petitions even frivolous ones and the arrears in this Court will keep mounting
and a time will come when the functioning of this Court will become impossible. It may be
mentioned that Article 136, like Article 226, is a discretionary remedy, and this Court is not
bound to interfere even if there is an error of law or fact in the impugned order.7
Where the petitioner sole grievance was that the high court had disallowed interest on
solatium and the question whether solatium could be granted was pending before the
Supreme Court, it was held not to be worthwhile to grant Special Leave solely on the ground
that a question of law on that aspect was pending. However, he was allowed to move to High
Court to amend his judgement.8
The special leave may be allowed only on exceptional cases such as breach of principles of
natural justice by the order appealed against,9 where the appeal to SC is on a point which
could not have been decided in appeal under any ordinary law.10 In the present case the case
has already been decided by the High Court and substantial justice has been given. Hence, the
Supreme Court should reject the Special leave and not add one more case to its list of
pending cases.

1.2 No irregularity of procedure or violation of natural justice is being done.

In plethora of cases, it has been held that except that where there has been an illegality or an
irregularity of procedure or a violation of principle of natural justice resulting in the absence
of a fair trial or gross miscarriage of justice, the SC does not permit a third review of
evidence with regard to question of fact in cases in which two courts of fact have appreciated
and assessed the evidence with regard to such questions.11

7
Mathai @ Joby v George ((2010) 4 SCC 358)
8
Annie Varghese vs State of Kerala, (1999) 6 SCC 551 (para 1)
9
Mahadayal Premchandra vs C.T.O. AIR 1958 SC 667 : 1959 SCR 551
10
Cf. Kanahiyalal Lohia vs. Commissioner for Income Tax, AIR !962 SC 1323 (1325) : 1962 (2) SCR 839
11
State of U.P. v Ram Manorath (1972) 3 SCC 215 (SC); see also UOI v Rajeswari & Co.(1986) AIR 1748
(SC).

3
It is contended that this court is not bound to go into the merits and even if it were to do so,
and declare the law or point out the error, still it may not interfere if the justice of the case on
facts doesn’t require interference or if it feels that the relief could be moulded in a different
fashion.12
The court would not interfere with the decision of the High Court where it has sought to
further social justice without depriving any party of its existing legal rights.
Justice Fazal Ali has opined that, “In our opinion, there appears to be some misapprehension
about what actually social justice is. There is no ritualistic formula or any magical charm
in the concept of social justice. All that it means is that as between two parties if a deal is
made with one party without serious detriment to the other, and then the Court would lean in
favour of the weaker section of the society. Social justice is the recognition of greater
good to larger number without deprivation of accrued legal rights of anybody. If such a
thing can be done then indeed social justice must prevail over any technical rule. It is in
response to thefelt necessities of time and situation in order to do greater good to a
larger number even though it might detract from some technical rule in favour of a party.
Justice social, economic and political is preamble to our constitution. Administration of
justice can no longer be merely protector of legal right but must whenever possible be
dispenser of social justice.”13
The Supreme Court may declare the law or point out lower court’s error, still it may not
interfere if special circumstances are not shown to exist and the justice of the case on facts
does not require interference or it feels that the relief could be moulded in a different fashion.
Under Article 136 it was not bound to set aside an order even if it was not in conformity with
law, since the power under Article 136 was discretionary.14
It was held that this Court was more than a court of appeal. It exercises power only when
there is supreme need. It is not the fifth court of appeal, but the final Court of the nation.
Therefore, even if legal flaws might be electronically detected, it may not interfere save
manifest injustice or substantial question of public importance.15
"It may, however, be pointed out that this Court was never intended to be a regular court of
appeal against orders made by the High Court or the sessions court or the magistrates. It was
created for the purpose of laying down the law for the entire country ...............It is not every

12
Raghunath G. Pauhale v Chagan Lal Sundarji & Co.(1999) 8 SCC 1 (SC).
13
Sadhuram Bansal vs Pulin Behari Sarkar, AIR 1984 SC 147 (para 30) : (1984) 3 SCC 410
14
Chandra Singh vs. State of Rajasthan, (2003) 6 SCC 545, 562-63 (para 43 and 45)
15
Baigana v Deputy Collector of Consolidation, [1978] 3 SCR 509

4
case where the apex court finds that some injustice has been done that it would grant special
leave and interfere. That would be converting the apex court into a regular court of appeal
and moreover, by so doing, the apex court would soon be reduced to a position where it will
find itself unable to remedy any injustice at all, on account of the tremendous backlog of
cases which is bound to accumulate. We must realize that in the vast majority of cases the
High Courts must become final even if they are wrong".16
Thus on the above stated grounds and judgments the present case should be dismissed.

1.3 Even if it is presumed that the matter involves a ‘question of law’, ‘no
substantial question of law’ is involved.

It has to be kept in mind that the right of appeal is neither a natural nor an inherent right
attached to the litigation.17
This Court is exercising power under Article 136 of the Constitution and is not a regular
Court of Appeal. In exercise of the said power, this Court does not re-appreciate, review and
re-weigh the evidence which has been appreciated by the trial Court and by the High Court. If
on the basis of evidence of the aforesaid witnesses, the Sessions Court was satisfied that the
prosecution witnesses were trustworthy and relying on their testimony, conviction was
recorded and the High Court confirmed that part of the order, it cannot be said that by doing
so any illegality had been committed by the courts below. No interference, therefore, is called
for by this Court against the said finding.18
The SC does not interfere with the judgements passed by the lower courts unless there is an
illegality in it or it is harsh or unjust in the facts and circumstances of the case or it is unduly
lenient or it involves any question of principle or where the High Court does not exercise its
discretion judicially on the question of the sentence.19
The SC does not interfere with the High Court’s finding of acquittal unless that finding is
completely unreasonable, or unsatisfactory or perverse or manifestly illegal or grossly unjust
or is vitiated by some glaring infirmity in the appraisal of evidence, 20 or, is unreasoned and

16
Bihar Legal Support Society Vs. Chief of Justice of India and Anr. (1986) 4 SCC 767
17
Hero Vinoth v. Seshammal (2006) AIR 2234 (SC).
18
Dadan vs State Of M.P [2008] Insc 1855 (4th November 2008)
19
State of Maharashtra vs Mayer Hans George AIR 1965 SC 722 : 1965 (1) SCR 123 : 1965 (1) CrLJ 641
20
Deputy Chief Controller vs Kosalaram , AIR 1971 SC 1283 : 1971 CrLJ 1081 : (1970) 3 SCC 82

5
has deficiencies,21 or, is perverse in the sense that no reasonable person would have come to
that conclusion,22 or, the High Court results in gross miscarriage of Justice.23
None of the above conditions are being fulfilled in the present case. Hence it is pled before
the Hon’ble Court that the case should be disposed.

1.4 There are no grounds for challenging the Constitutionality of law.

Through judgements of various cases various grounds for challenging the constitutionality of
law are defined. It is valid law if it is enacted by a competent legislature and if it does not
violate any of the other fundamental rights other than Article 21 it is open to challenge the
constitutionality of a law which deprives a person of his life and personal liberty on the
ground
(a) That it has not been enacted by competent legislature.24
(b) That it constitutes a colourable exercise of legislative powers.25
(c) That the law is a subordinate legislation, it is ultra vires or if it is an order, that it is
mala fide.26
(d) That it contravenes any of the fundamental rights other than Article 21.27
(e) That it is vague.28
(f) That it does not offer to the prisoner a right to legal assistance.29
(g) That it is unfair or unreasonable.30
(h) That it violates natural justice.31
The present case does not fulfil any of the above stated grounds; hence the constitutionality
of the law (Pehchaan Act) cannot be challenged.

21
State of MP vs Ramesh (2009) 11 SCC 330, 333 (para 13)
22
Jayabalan vs Union Territory of Pondicherry, (2010) I SCC 199, 210, (para 18)
23
State of Uttar Pradesh vs Ashok Kumar Srivastava, AIR 1992 SC 840 : (1992) 2 SCC 86 : 1992 CrLJ 1104
24
Maneka Gandhi vs Union of India, AIR 1978 SC 597 : (1978) 2 SCR 612 : (1978) 1 SCC 248; Indrajeet vs
State of UP., AIR 1979 SC 1867 : (1980) 1 SCR 255 : (1979) 4 SCC 246
25
Ibid.
26
Ibid.
27
Antulay vs Nayak, AIR 1988 SC 1531 (paras 60-61) : 1988 (Supp-1) SCR 1 : (1988) 2 SCC 602 (4:3 Judges)
28
Abbas vs. Union of India, AIR 1971 SC 481 : (1971) 2 SCR 446 : (1970) 2 SCC 780; Casebook (I), p. 286
29
Nand vs State of Punjab, AIR 1981 SC 2041 (para 9) : (1982) 1 SCR 718 : (1981) 4 SCC 327
30
Supra at 24
31
Supra at 27

6
Therefore, after examining the case on the touch-stone of the afore-noted legal principles, it is
humbly submitted before this Hon’ble SC of Mandia that the special leave petition filed by
appellant is not maintainable.

2. Whether the Pehchaan Act, 2014 violates the fundamental rights under Article
21 and 19(a)?

It is humbly submitted before the Hon’ble court that the Pehchaan act does not violate the
fundamental rights under Article 21 and 19(a). All the fundamental rights are subject to
reasonable restrictions, and if any act or legislature is for public good and social welfare then
the reasonable restrictions are applied to all the fundamental rights and these reasonable
restrictions are not considered to be in violation to the fundamental rights. In the case at hand,
the petitioner has contended that seeking basic personal information from the citizens for
Pehchaan cards violates the fundamental rights provided to the citizens under article 21 and
19(a), but the card is for public good and social welfare and it will also help in reducing
corruption, the philosophy behind this Pehchaan policy is ‘Zero Tolerance for
Corruption’.32 The policy also aims to check the duplicity of election cards and also the
card would be linked to PAN cards and bank accounts.33 The policy is also meant to
eliminate all sorts of terrorism by finishing off sleeping modules and local support base of
terrorists.34 Hence, it is pleaded before the Hon’ble court that there is no violation of
fundamental right as the policy solely aims for public good and social welfare.

2.1 All the fundamental rights provided to the citizens are subject to reasonable
restrictions.

As stated above every right has its own reasonable restrictions, these restrictions are to
prevent the rights from becoming absolute. "Privacy" is defined as "the state of being free
from intrusion or disturbance in one's private life or affairs". However, the right to privacy in

32
Moot Problem ¶ 1.
33
Moot Problem ¶ 2.
34
Moot Problem ¶ 3.

7
India, is only conferred through an extensive interpretation of Article 21 and cannot therefore
in any circumstance be considered an absolute right. To challenge a law for violation of
fundamental rights the first thing to be checked is whether the law falls under the category of
reasonable restrictions. Reasonable restrictions are imposed on a right for public good and
social welfare.
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.”35
There must be a proximate and reasonable nexus between the restriction imposed and the
object which is sought to be achieved. In other words, the court has to see whether by virtue
of restriction imposed on the right of the citizen, the object of the statute is really fulfilled or
frustrated.36
In determining the reasonableness of law challenged as an unreasonable restriction upon a
fundamental right guaranteed by Article 19, the court has to balance the need for individual
liberty with the need of social control and the magnitude of the evil which it is the purpose of
the restrictions to curb or eliminate so that the freedom guaranteed to the individual sub
serves the larger public interest.37
Privacy is a concept which does not have any specific meaning or definition and the
expression is inchoate
When privacy and its purportedly outdated values must be balanced against the cutting-edge
imperatives of national security, efficiency, and entrepreneurship, privacy comes up the loser.
The list of privacy counterweights is long and growing. The recent additions of social media,
mobile platforms, cloud computing, data mining, and predictive analytics now threaten to tip
the scales entirely, placing privacy in permanent opposition to the progress of knowledge.”
In Kharak Singh v. State of Uttar Pradesh38, Subba Rao, J., while expressing the minority
view observed that the right to personal liberty not only referred to freedom from restrictions
on one’s movements but also to freedom from encroachments on one’s private life. This view

35
Privacy under “The European Convention on Human Rights and the European Charter in Europe.”
36
Potthuma vs State of Kerela, AIR 1978 SC 771 (para 20)
37
Harakchand vs Union of India, AIR 1970 SC 1453 (paras 15, 16)
38
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295

8
was carried forward in Gobind v. State of Madhya Pradesh 39, where the Court held that the
right to privacy is subject to reasonable restrictions, like public benefit or compelling state
interest.
Hence, the Pehchaan Act, 2014 should be considered a reasonable restriction upon the
fundamental rights under Article 21 and Article 19(a) and should be considered
constitutional.

2.1.1 Disclosure of Information about Health amounts to Reasonable Restriction.

As far as disclosing information about life threatening diseases these are also subject to
reasonable restrictions and if the law seeks information about the same, any person would
have to provide the information.
The decision in this case held that The RTI Act 2005 would supersede The Medical Council
Code of Ethics. The health records of an individual in judicial custody should be made
available under the Act and can only be denied in exceptional cases, for valid reasons that
these would not prevail over the Right to Information Act, 2005 (RTI Act) unless the
information sought falls under the exceptions contained in Section 8 of the RTI Act. This
case dealt with the important point of contention of whether making the health records public
under the RTI Act would constitute a violation of the right to privacy. These health records
were required to determine why the convict in question was allowed to stay in a hospital as
opposed to prison. In this context the Bombay High Court held that the Right to Information
Act supersedes the regulation that mandate the confidentiality of a person, or in this case a
convict’s medical records. It was held that the medical records of a person sentenced or
convicted or remanded to police or judicial custody, if during that period such person is
admitted in hospital and nursing home, should be made available to the person asking the
information provided such hospital nursing home is maintained by the State or Public
Authority or any other Public Body. It is only in rare and in exceptional cases and for good
and valid reasons recorded in writing can the information may be denied.
Disclosure of even true private facts has the tendency to disturb a person’s tranquillity. It may
generate many complexes in him and may even lead to psychological problems. He may,
thereafter, have a disturbed life all through. In the face of these potentialities, and as already
held by this Court in its various decisions referred to above, the Right of Privacy is an

39
Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148: AIR 1975 SC 1378.

9
essential component of right to life envisaged by Article 21. The right however, is not
absolute and may be lawfully restricted for the prevention of crime, disorder or protection of
health or morals or protection of rights and freedom of others.40
The petitioner was engaged to be married and thereafter during tests for some other illness in
the hospital it was found that the petitioner was HIV positive. This information was released
by the doctor to the petitioner’s family and through them to the family of the girl to whom the
petitioner was engaged, all without the consent of the petitioner. The Court held that:
“The Right to privacy is not treated as absolute and is subject to such action as may be
lawfully taken for the prevention of crime or disorder or protection of health or morals or
protection of rights and freedoms of others.”
Right to privacy and is subject to such action as may be lawfully taken for the prevention of
crime or disorder or protection of health or morals or protection of rights and freedoms of
others.41 The petitioner alleged that she had contracted the HIV virus due to the negligence of
the authorities of Maternity and Family Welfare Hospital, Godavarikhani, a hospital under
the control of Singareni Collieries Company Ltd., (SCCL), in conducting relevant
precautionary blood tests before transfusion of blood of her brother (donor) into her body
when she was operated for hysterectomy (Chronic Cervicitis) at the hospital. The petition was
initially filed as a Public Interest Litigation, which the court duly expanded in order to
address the problem of the lack of adequate precautionary measures in hospitals, thereby also
dealing with issues of medical confidentiality and privacy of HIV patients. The court thus
deliberated upon the conflict between the right to privacy of an HIV infected person and the
duty of the state to prevent further transmission and held:
In the interests of the general public, it is necessary for the State to identify HIV positive
cases and any action taken in that regard cannot be termed as unconstitutional. As under
Article 47 of the Constitution, the State was under an obligation to take all steps for the
improvement of the public health. A law designed to achieve this object, if fair and
reasonable, in our opinion, will not be in breach of Article 21 of the Constitution of India.42
The above judgements justify the disclosure of information about life threatening diseases
like AIDS to the government. Also, the information about the diseases would help the
government to formulate schemes for the people suffering from the diseases and help them.

40
Mr. Surupsingh Hrya Naik v.State Of Maharashtra AIR 2007 Bom 121, 2007 (109) Bom L R 844, 2007 (4)
MhLj 573
41
Mr. X v. Hospital Z, Supreme Court of India ,(1998 and 2002)
42
M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd. I (2002) ACC 32, 2002 ACJ 32,
2001 (5) ALT 154.

10
As the Pehchaan cards would be linked to the bank account of the people any sort of
monetary help would be directly provided to them, this would also reduce the scams.
Hence, the Pehchaan Act, 2014 must be declared constitutional.

2.1.2 If the restrictions imposed are for public good and social welfare, they can
very well be imposed.

We may notice here that interference in accordance with law and for the prevention of
disorder and crime is an exception recognised even by European Convention of Human
Rights to the right to respect for a person's private and family life. Art. 8 of the Convention
read as follows:
"(1) Everyone’s right to respect for his private and family life, his home and his
correspondence shall be recognised.
(2) There shall be no interference by a public authority with the exercise of this right, except
such as is in accordance with law and is necessary in a democratic society in the interests of
national security, public safety, for the prevention of disorder and crime or for the protection
of health or morals".43
] In the context of privacy it is only the inner sanctum of a person, such as his/her family life,
sexual preference and home environment, which is shielded from erosion by conflicting
rights of the community.
This implies that community rights and the rights of fellow members place a corresponding
obligation on a citizen, thereby shaping the abstract notion of individualism towards
identifying a concrete member of civil society. Privacy is acknowledged in the truly personal
realm, but as a person moves into communal relations and activities such as business and
social interaction, the scope of personal space shrinks accordingly.
The mere possibility that security measures will fail provides no “proper ground” for a broad-
based attack on government information-collection practices.44
Life and personal liberty are the most prized possessions of an individual. The inner urge for
freedom is a natural phenomenon of every human being. Respect for life, liberty and property
is not merely a norm or a policy of the State, but an essential requirement of the civilised
society. The phrase “personal liberty” is very wide and includes all possible rights which go

43
Article 8 of the European Convention of Human Rights.
44
Bowers v. Hardwick, 478 U.S. 186 (1986)

11
to constitute personal liberty, including those mentioned in Article 19.45 The object of Article
21 is to prevent encroachment upon personal liberty in any manner. Article 21 is the
repository of all human rights essential for a person or a citizen. A fruitful and meaningful
life presupposes life full of dignity, honour, health and welfare. In the modern “Welfare
Philosophy”, it is for the State to ensure these essentials of life to all its citizens and if
possible, to non-citizens and on every civilised democratic country, liberty is considered to be
the most precious human right of every person. But where individual liberty comes into
conflict with an interest of the security of the State or Public order, the liberty of the
individual must give way to the larger interest of the nation.46
In Ash Mohammed v. Shiv Raj Singh47, the court said that in a democratic society polity
which is wedded to the rule of law an individual is expected to grow within the social
restriction sanctioned by law. The individual liberty is restricted by longer social interest and
its deprivation must have due sanction of law. In an orderly society, an individual is expected
to live with dignity having respect for law and also giving respect to others’ rights. It is a
well-accepted principle that the concept of liberty is not in the realm of absolutism, but is a
restricted one. The cry of the collective for justice, its desires for peace and harmony and its
necessity for security cannot be allowed to be trivialised. The life of an individual living in a
society governed by rule of law has to be regulated and such regulations which are the source
in law sub serve the social balance and function as a significant instrument for protection of
human rights and security of the collective. It is because fundamentally laws are made for
their obedience, so that every member of the society lives peacefully in a society to achieve
his individual as well as social interest.
In determining the reasonableness of law challenged as an unreasonable restriction upon a
fundamental right guaranteed by Article 19, the court has to balance the need for individual
liberty with the need of social control and the magnitude of the evil which it is the purpose of
the restrictions to curb or eliminate so that the freedom guaranteed to the individual sub
serves the larger public interest.
Thus, since the Pehchaan policy is for the social welfare of the nation, hence, it should be
considered as a reasonable restriction on the fundamental rights provided under Article 21
and 19(a) and the Pehchaan Act, 2014 must be considered constitutional.

45
Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312 : (2011) 1 SCC 694 : (2010) 4
KLT 930
46
Sunil Fulchand Shah v. Union of India, AIR 2000 SC 1023.
47
Ash Mohammed v. Shiv Raj Singh (2012) 9 SCC 446 : (2012) CrLJ 4670.

12
 2.2 Possibility of abuse of a fundamental right is not a ground to question a
legislature.

There are plethora of judgements wherein the judges have decided that mere possibility of
abuse of a fundamental right is not a ground to question the legislature. Since it is the
legislature which is responsible to the people for the administration of the Country, and not
the courts, when the constitutionality of a law is challenged, the Courts starts with the
presumption that the Legislature knows better the needs of the people and how to meet them
and that accordingly, it would be for the party who challenges its validity, to clearly establish
that it has transgressed the Fundamental Rights as alleged by him.48
The constitutional validity of a statute would have to be determined on the basis of its
provisions as reasonably interpreted, and not on the grounds of possibility of powers being
improperly used.49 The possibility of abuse is no ground for a legislature a power it
possesses.50
The court also presumes that the makers of law are far more knowledgeable and the ones
questioning the law should have a valid ground for challenging the law.
A statute is an edict of the legislature and the conventional way of interpreting or construing a
statute is to seek the intention of its maker. A statute has to be construed according to the
intent of those who make it and the duty of the judicature is to act upon it in a modern state is
actuated with some policy to curb public evil or to effectuate some public benefit.51
If the possibility of the misuse of a law exists but the law also intends to achieve social
welfare, in such cases the law prevails. The attitude of the court may differ according to the
nature of the legislation and the nature of the fundamental right which has been infringed.
Thus, the reluctance of the court to invalidate a law is at the highest in the case of the laws
intended to achieve social welfare or social justice.52
The personal liberty of a citizen is guaranteed under the scheme of Articles 20, 21 and 22 of
the constitution of India. However a person may be deprived of his liberty only according to
the procedure established by law.53 This judgement clearly states that a person can be denied
of his rights according to the procedure established by law. Since, on 11th August, 2014, the

48
Garg vs Union of India, A. 1981 SC 2138 (paras. 7, 8)
49
Charan vs Union of India, A. 1990 SC 1480 (para. 63) C.B
50
Beauharnis vs Illinois, (1952) 343 US 250
51
Hari Singh Nalwa vs Kartar Singh Bandana, AIR 2001 P&H 86, p. 98
52
Cf. Rama Reddy vs State of AP., (1988) 2 U.J.SC 343 (para. 7)
53
Ram Narain vs State, 1953 SCR 652

13
government of Mandia enacted a law called the Pehchaan Act, 2014, making Pehchaan cards
mandatory for all schemes,54 this was a procedure established by law and hence the citizens
are bound to disclose any information asked to them.
As contended by the appellant there is a possibility of data loss, so, the act has a whole
chapter on data protection and penalties and punishment for leaked data,55 also during the
proceedings in the high court the respondents have promised to bring substantive law for the
protection of data.56
Thus, since there is just a possibility of the infringement of fundamental rights and there are
laws for the prevention of the same and also a promise to bring new laws, the Hon’ble court
should contend that the Pehchaan Act, 2014 does not violate the fundamental rights.

2.3 The burden of proof of the violation of fundamental rights lies with the
appellant.

Whenever someone questions the constitutionality of a law, the burden of proof is on the
person questioning the law to prove that a right is being violated. The court presumes that the
legislature understands and correctly appreciates the need of its own people, that its laws are
directed to problems made and manifest by experience and that its discrimination are based
on adequate grounds.57 Hence, the person questioning the law must prove that the law
violates a fundamental right and is not a reasonable restriction to that right.
There is presumption of constitutionality in favour of legislation. The Legislature has the
power to carve out a classification which is based upon intelligible differentia and has
rational nexus to the object of the Act. The burden to prove that the enacted law offends any
of the Articles under Part III of the Constitution is on the one who questions the
constitutionality and shows that despite such presumption in favour of the legislation, it is
unfair, unjust and unreasonable.58
There is always a presumption in favour of the constitutionality of an enactment and the
burden is upon him who attacks it to show that there has been a clear transgression of the

54
Moot Problem ¶ 12.
55
Ibid.
56
Moot Problem ¶ 23.
57
Middleton v. Texas Power and Light Company 248 U.S. 1152,157.
58
Namit Sharma v. Union of India,(2013) 1 SCC 745

14
constitutional principles.59 One who assails a classification must carry the burden of showing
that it does not rest upon any reasonable basis.60
In making the classification the legislature cannot certainly be expected to provide "abstract
symmetry." It can make and set apart the classes according to the needs and exigencies of the
society and as suggested by experience. It can recognise even "degrees of evil"61, but the
classification should never be arbitrary, artificial or evasive. It must rest always upon real and
substantial distinction bearing a reasonable and just relation to the thing in respect to which
the classification is made; and classification made without any reasonable basis should be
regarded as invalid62. These propositions have not been controverted before us and it is not
disputed also on behalf of the respondents that the presumption is always in favour of the
constitutionality of an enactment and the burden is upon him who attacks it, to show that
there has been transgression of constitutional principles.63
In light of the above mentioned judgements it should be considered that the Pehchaan Act,
2014 is constitutional and unless proved by the appellant otherwise it should be considered to
be constitutional and not in violation of any fundamental right.

59
Shri Ram Krishna Dalmia vs Shri Justice S. R. Tendolkar & Others 1958 AIR 538, 1959 SCR 279
60
The State Of Bombay And Another vs F.N. Balsara 1951 AIR 318, 1951 SCR 682
61
Vide Skinner v. Oklahoma (316 U.S. 535 at 540)
62
Southern Railway Co. v. Greene (216 U.S. 400 at 412)
63
The State Of West Bengal vs Anwar Ali Sarkar, AIR 1952 SC 75, 1952 CriLJ 510, 1952 1 SCR 284

15
 PRAYER FOR RELIEF

Wherefore, in the lights of issues raised, arguments advanced, reasons given and authorities
cited, this Hon’ble Court may be pleased to:

1. ADJUDGE the case not maintainable and not grant Special Leave to the appellant
under Article 136 of the Constitution.
2. ADJUDGE that the Pehchaan Act, 2014 is constitutional and not in violation of any
fundamental right.

And any other relief that this Hon’ble Court may be pleased to grant in the interests of justice,
equity and good conscience.

FOR WHICH THE RESPONDENTS SHALL FOREVER PRAY

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSELS FOR RESPONDENTS

16