UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

B.COM L.L.B TAXATION LAW

SEMESTER V

ACADEMIC YEAR: 2018-2019 SESSION: August-December

Draft

On

WRIT PETITION UNDER ARTICLE 32

Under the Supervision of: Arpi Jain

NAME: Deepak Singhal

SAP NO: 500055200

ROLL NO: 24

IN THE SUPREME COURT OF INDIA AT NEW DELHI

EXTRAORDINARY WRIT JURISDICTION

 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

WRIT PETITION (CIVIL) NO. _______OF 2018

IN THE MATTER OF:-

JUSTICE K.S. PUTTASWAMY (RETD.) & ANR.

……….PETITIONER

VERSUS

UNION OF INDIA & ORS.

……..RESPONDENT

WITH

T.C. (CIVIL) NO 151 OF 2013

T.C. (CIVIL) NO 152 OF 2013

W.P.(CIVIL) NO 833 OF 2013

W.P.(CIVIL) NO 829 OF 2013

W.P.(CIVIL) NO 932 OF 2013

CONMT. PET. (CIVIL) NO 144 OF 2014

IN W.P.(C) NO. 494/2012

T.P.(CIVIL) NO 313 OF 2014

T.P.(CIVIL) NO 312 OF 2014

S.L.P(CRL.) NO.2524/2014

W.P.(CIVIL) NO.37/2015

W.P.(CIVIL) NO.220/2015

CONMT. PET. (C)NO.674/2015

 IN W.P.(C) NO.829/2013

T.P.(CIVIL)NO.921/2015

CONMT.PET.(C)NO.470/2015

IN W.P.(C) NO.494/2012

CONMT.PET.(C)NO.444/2016

IN W.P.(C) NO.494/2012

CONMT.PET.(C)NO.608/2016

CONMT.PET.(C)NO.844/2018

IN W.P.(C) NO.494/2012

W.P. (C) NO. 342/ 2018

AND

WITH W.P.(C) NO.000372/2018

PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA FOR

ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS UNDER ARTICLE 32 OF
THE CONSTITUTION OF INDIA

IN THE MATTER OF:

Constitutionality of Right to Privacy as fundamental right under Article 21 of the Constitution of

India. & Constitutional validity of Section 5 of the Aadhar Act, 2016 of being in violation of
Article 14, 19 and 21.

IN THE SUPREME COURT OF INDIA

EXTRAORDINARY WRIT JURISDICTION

 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

WRIT PETITION (CIVIL) NO. ____________ OF 2018

IN THE MATTER OF:-

JUSTICE K.S. PUTTASWAMY (RETD.) & ANR.

……….PETITIONER

VERSUS

UNION OF INDIA & ORS.

……..RESPONDENT

NOTICE OF MOTION

To,

The Standing Counsel,

Union of India, Chamber Nos. 223-334,

Delhi High Court.

Please take note that the above noted matter will be listed on ___________ of 2018 before the
Hon’ble High Court of Delhi. It is, therefore, requested to you to please enter your appearance on
the said date.

PETITIONER
Through
(DEEPAK SINGHAL)
ADVOCATE FOR THE PETITIONER
21, Sharma Chambers, Baird Place,
New Delhi.
Date: 01.10.2018

SYNOPSIS
That this Writ Petition under Article 32 of the Constitution has been filed by the Petitioner
against the Central Government for infringement of Article 14, 19 and 21 of the Indian
Constitution by giving them excessive authority. The said action has been taken by the
Government of India had introduced the Aadhaar card scheme according to the Aadhar Act,
2016 according to which the Government will collect and compiles both demographic and
biometric data of the residents of this country.

The Petitioner thereby raises several substantial questions of law of constitution and public
importance as the question in hand is concerning the fundamental rights of the individuals. The
petitioners sort to raise concern in regards to the impugned section 5 of the Aadhar Act, 2016
which is in violation of right to privacy as it sorts to collect and compile both demographic and
biometric data without the consent of the said individuals.

The Petitioner also seeks from this honorable court to look into the compiled writ petitions to
answer the question, whether our Constitution Protects Privacy as an elemental principal and
whether the privacy is included under part III of the constitution as a Fundamental Right.

LISTOFDATES
S. Date Particulars Page No.
No
1 3rd March 2006 Department of Information Technology, Ministry

of Communications and Information Technology

gave an administrative approval for a scheme to

issue unique ID for Below Poverty Line (BPL)

families.

2 4th December Constitution of an Empowered Group of Ministers

2006 (EGoM) to collate two schemes -the National

Population Register under the Citizenship Act,

1955 and the UID scheme.

3 2007 First meeting of the EgoM took place where the

need for creating an identity related resident

database was recognized, thereby leading to the

creation of Aadhaar.

4 2009 The Unique Identification Authority of India

(UIDAI) was constituted for the purpose of issuing

unique identification numbers by the Central

Government. It was decided that the UIDAI will be

executive in nature and function under the Planning

Commission. Nandan M. Nilekani was appointed as

the first chairman of this Authority.

5 3rd December The National Identification Authority of India Bill,

2010 2010 (NIAI Bill) was introduced in RajyaSabha by

the UPA government.

6 10th December The NIAI Bill, 2010 was referred by the LokSabha

2010 Speaker to a Standing Committee for examination

and a report thereafter

7 December 2011 The Standing committee on Finance under

YashwantSinha issued a report on the NIAI Bill

and rejected the bill in its initial form. It gave

recommendations, including the requirement for an

overarching privacy legislation and data protection

law before the continuance of the scheme, and

 expressed concern about private agencies being

contracted for the collection of sensitive

information.

8 2012 Justice K.S. Puttaswamy, former Karnataka High

Court Judge, filed a petition (W.P.(C)

494/2012)before the Supreme Court contending

that Aadhaar does not have any statutory basis, and

moreover violates fundamental rights of equality &

privacy granted to every individual under the

Constitution.

9 24th March An order is issued by the Supreme Court in the case

2014 of UIDAI v. Central Bureau of Investigation

(CBI) (SLP (Crl) 2524/2014), (subsequently

tagged with Justice Puttaswamy’s petition) asking

agencies to revoke any orders made by them

making Aadhaar mandatory for availing benefits.

Moreover, it also forbid the UIDAI from sharing

any information in the Aadhaar database with any

agency without the data subject’s consent. (Order

dated 24thMarch, 2014)

10 26th April 2018 The Supreme Court heard the challenge of

mandatory linking of Aadhaat to PAN in the cases

of BinoyViswam v. Union of India

(W.P.(C)247/2018), S.G. Vombatkere&Anr. v.

Union of India (W.P.(C) 277/2018). The hearing

for this case continued on April 27th and 28th,

and May 2nd, 3rd, and 4th.

INDEX
S.NO. CONTENT PAGE NO.
1. NOTICE OF MOTION 4

2. SYNOPSIS AND LIST OF DATES 5-7

2. BRIEF FACTS OF THE CASE 11

3. QUESTIONS OF LAW 11-16

3. GROUNDS 16

5. AVERTMENT 16

6. AFFIDAVIT 18

IN THE SUPREME COURT OF INDIA AT NEW DELHI

 EXTRAORDINARY WRIT JURISDICTION
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

WRIT PETITION (CIVIL) NO. _______OF 2018

IN THE MATTER OF:-

JUSTICE K.S. PUTTASWAMY (RETD.) & ANR.

……….PETITIONER

VERSUS

UNION OF INDIA & ORS.

……..RESPONDENT

TO,

THE HON‟BLE THE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THIS
HON‟BLE COURT THE HUMBLE PETITION OF THE PETITIONER

ABOVENAMED

MOST RESPECTFULLY SHOWETH THAT:

(1) That the present petition is filed in the Public Interest for considering the
constitutional validity to the Aadhaar Act and the Aadhar scheme of the union
government and whether this scheme is in violation of Article 14, 19 and 21 of the Indian
Constitution.

(2) That in the present petition the petitioner will be assisted by Mr.
GopalSubramanium, Mr. KapilSibal, Mr. ArvindDatar, Mr. Shyam Divan, Mr. Anand
Grover, Ms. MeenakshiArora, Mr. SajanPoovayya and Mr. JayantBhushan, learned
senior counsel.
(3) That on order dated 11 August, 2015 the government of India had introduced the
Aadhaar card scheme as per which the Government of India will collect and compiles
both demographic and biometric data of the residence of this country, i.e. India to be used
for various purposes.

(4) That earlier this petition was before the three judge bench of this court but now a
nine judge bench of this court assembled to determine this question.

BRIEF FACTS
1. The Government of India, by way of the Aadhar Act, 2016 have made Aadhar
mandatory for social welfare benefits, infringement of right to privacy, making
Aadhaar mandatory for filing income tax returns (ITRs) as well as for obtaining and
retaining PAN.
2. Section 5 and Section 6 of the Aadhar Act were questioned for being in violation of
Article 14, 19 and 21.
3. The language of the said impugned section have been questioned in the light of right
to privacy and mandating the parting of one’s biometrics without the consent of the
said person.
4. The case also raised questions on government’s relentless power in regards to the
Aadhar Card Scheme.

QUESTION OF LAW

The petition raises several substantial questions of law of constitutional and public
importance as the concern the protection of fundamental rights, encompassing human
dignity, privacy and personhood, which may be summarized as follows:

A – Whether the Scheme of Government introducing the Aadhaar Card Scheme is

constitutionality valid and whether it violates Right to Privy of Residence of this
country as it contain collection and compilation of both demographic and biometric
data.
 B – Whether our Constitution Protects Privacy as an elemental principal and
whether the privacy is include under part III of the constitution as a Fundamental
Right.

Content of Right to Privacy

(1) That it might be broadly necessary to determine the nature and content of privacy in order
to consider the extent of its constitutional protection. As in the case of ‘life’ under Article
21, a precise definition of the term ‘privacy’ may not be possible.

(2) That the existence of zones of privacy is felt instinctively by all civilized people, without
exception. The best evidence for this proposition lies in the panoply of activities through
which we all express claims to privacy in our daily lives. We lock our doors, clothe our
bodies and set passwords to our computers and phones to signal that we intend for our
places, persons and virtual lives to be private. An early case in the Supreme Court of
Georgia in the United States describes the natural and instinctive recognition of the need
for privacy in the following terms:

“The right of privacy has its foundation in the instincts of nature. It is recognized
intuitively, consciousness being the witness that can be called to establish its existence.
Any person whose intellect is in a normal condition recognizes at once that as to each
individual member of society there are matters private and there are matters public so far
as the individual is concerned. Each individual as instinctively resents any encroachment
by the public upon his rights which are of a private nature as he does the withdrawal of
those of his rights which are of a public nature”.

(3) That ‘Privacy’ is “the condition or state of being free from public attention to intrusion
into or interference with one's acts or decisions”. The right to be in this condition has
been described as ‘the right to be let alone’. What seems to be essential to privacy is the
power to seclude oneself and keep others from intruding it in any way. These intrusions
may be physical or visual, and may take any of several forms including peeping over
one's shoulder to eavesdropping directly or through instruments, devices or technological
aids.
(4) That every individual is entitled to perform his actions in private. In other words, one is
entitled to be in a state of repose and to work without being disturbed, or otherwise
observed or spied upon. The entitlement to such a condition is not confined only to
intimate spaces such as the bedroom or the washroom but goes with a person wherever he
is, even in a public place.

(5) That privacy, that is to say, the condition arrived at after excluding other persons, is a
basic pre-requisite for exercising the liberty and the freedom to perform that activity. The
inability to create a condition of selective seclusion virtually denies an individual the
freedom to exercise that particular liberty or freedom necessary to do that activity.

(6) That a Bench of three judges of this Court, while considering the constitutional challenge
to the Aadhaar card scheme of the Union government noted in its order, dated 11 August
2015, that the norms for and compilation of demographic biometric data by government
was questioned on the ground that it violates the right to privacy. That during the
argument of that case the Attorney General for India urged that the existence of a
fundamental right of privacy is in doubt in view of two decisions: the first - M P
Sharma v. Satish Chandra, District Magistrate, Delhi, which was rendered by a Bench
of eight judges and the second was in the case of Kharak Singh v. State of Uttar
Pradesh, which was rendered by a Bench of six judges. Each of these decisions, in the
submission of the Attorney General, contained observations that the Indian Constitution
does not specifically protect the right to privacy. It is submitted that M P Sharma and
Kharak Singh were founded on principles expounded in A K Gopalan v. State of
Madras., which construed each provision contained in the Chapter on fundamental rights
as embodying a distinct protection, was held not to be good law by an eleven-judge
Bench in R.C Cooper v. Union of India. Hence the petitioners submitted that the basis of
the two earlier decisions is not valid. Moreover, it was also urged that in the seven-judge
Bench decision in Maneka Gandhi v. Union of India, the minority judgment of Justice
SubbaRao in Kharak Singh was specifically approved of and the decision of the majority
was overruled.

(7) That while addressing these challenges, the Bench of three judges of this Court took note
of several decisions of this Court in which the right to privacy has been held to be a
 constitutionally protected fundamental right. Those decisions include Gobind v. State of
Madhya Pradesh, R Rajagopal v. State of Tamil Nadu, and People's Union for Civil
Liberties v. Union of India.

(8) That the question of whether Article 21 encompasses a fundamental right to privacy did
not fall for consideration before the 8 Judges in the M.P. Sharma Court. Rather, the
question was whether an improper search and seizure operation undertaken against a
company and its directors would violate the constitutional bar against testimonial
compulsion contained in Article 20(3) of the Constitution. This Court held that such a
search did not violate Article 20(3). Its reasoning proceeded on the footing that the
absence of a fundamental right to privacy analogous to the Fourth Amendment to the
United States’ constitution in our own constitution suggested that the Constituent
Assembly chose not to subject laws providing for search and seizure to constitutional
limitations.

(9) That M.P. Sharma is unconvincing not only because it arrived at its conclusion without
enquiry into whether a privacy right could exist in our Constitution on an independent
footing or not, but because it wrongly took the United States Fourth Amendment - which
in itself is no more than a limited protection against unlawful surveillance - to be a
comprehensive constitutional guarantee of privacy in that jurisdiction.

(10) That neither does the 4:2 majority in Kharak Singh v. State of Uttar Pradesh furnish a
basis for the proposition that no constitutional right to privacy exists.

(11) That, nothing in M.P. Sharma and Kharak Singh supports the conclusion that there is
no fundamental right to privacy in our Constitution. These two decisions and their
inconclusiveness on the question before the Court today have been discussed in great
detail in the opinions of Chelameswar J., Nariman J., and Chandrachud J., and they agree
with their conclusion in this regard. To the extent that stray observations taken out of
their context may suggest otherwise, the shift in our understanding of the nature and
location of various fundamental rights in Part III brought about by R.C.
Cooper and Maneka Gandhi has removed the foundations of M.P. Sharma and Kharak
Singh.
(12) That the judgments contained in M.P. Sharma and Kharak Singh v. State of U.P. which
was by a Bench of 6 learned Judges, should be overruled as they do not reflect the correct
position in law. In any case, both judgments have been overtaken by R.C.
Cooper v. Union of India, (1970) 1 SCC 248, and Maneka Gandhi v. Union of
India, (1978) 1 SCC 248, and therefore require a revisit at our end.

(13) That the right to privacy is very much a fundamental right which is co-terminus with the
liberty and dignity of the individual. This right is found in Articles 14, 19, 20, 21 and 25
when read with the Preamble of the Constitution. Further, several international covenants
have stated that the right to privacy is fundamental to the development of the human
personality and that these international covenants need to be read into the fundamental
rights chapter of the Constitution. Also, the right to privacy should be evolved on a case
to case basis, and being a fundamental human right should only yield to State action if
such State action is compelling, necessary and in public interest. That this Court
alsopronounce upon the fact that the right to privacy is an inalienable natural right which
is not conferred by the Constitution but only recognized as such.

(14) That the 8-Judge Bench and the 6-Judge Bench decisions have ceased to be relevant in
the context of the vastly changed circumstances of today. Further, State action that
violates the fundamental right to privacy must contain at least four elements, namely:

• “The action must be sanctioned by law;

• The proposed action must be necessary in a democratic society for a legitimate aim;

• The extent of such interference must be proportionate to the need for such interference;

• There must be procedural guarantees against abuse of such interference.”

(15) That the constitutional right to privacy very much exists in Part III of the Constitution.

(16) That in a case that it is found that a claim for privacy is protected by Article 21 of the
Constitution, the test should be following:—

(i)That the infringement should be by legislation.

(ii) That the legislation should be in public interest.

 (iii) That the legislation should be reasonable and have nexus with the public interest.

(iv) Thatthe State would be entitled to adopt that measure which would most efficiently
achieve the objective without being excessive.

(v)That if apart from Article 21, the legislation infringes any other specified Fundamental
Right then it must stand the test in relation to that specified Fundamental Right.

(vi) That presumption of validity would attach to the legislations.”

(17) That Right to Privacy is also associated with Right to Dignity under Article 21 of the
Constitution.

GROUNDS

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

(II) That the right to privacy is very much a fundamental right which is co-terminus with the
liberty and dignity of the individual. This right is found in Articles 14, 19, 20, 21 and
25 when read with the Preamble of the Constitution.

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

(IV) That the legislation is not in the interest of the public and reasonable

(V) That the legislation should be reasonable and have nexus with the public interest.

AVERTMENT

That the present petitioner has not filed any other petition in any High Court or the
Supreme Court of India on the subject matter of the present petition.
 PRAYER

IN LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES IT IS HUMBLY

PRAYED BEFORE THIS HON’BLE COURT:

(1) – TO DECLARE THE RIGHT TO PRIVACY AS A SEPARATE FUNDAMENTAL

RIGHT UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA.

(2) – TO DECLARE THE GOVERNMENT AADHAAR CARD SCHEME AS

UNCONSTITUTIONAL, AS BEING VIOLATIVE OF RIGHT TO PRIVACY OF
RESIDENT OF INDIA.

ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE PLEASED TO GRANT
IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL BE DUTY BOUND

FOREVER.

Sd/-

(COUNSEL FOR THE PETITIONER)

 IN THE SUPREME COURT OF INDIA AT NEW DELHI

EXTRAORDINARY WRIT JURISDICTION

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

WRIT PETITION (CIVIL) NO. _______OF 2018

IN THE MATTER OF:-

JUSTICE K.S. PUTTASWAMY (RETD.) & ANR.

……….PETITIONER

VERSUS

UNION OF INDIA & ORS.

……..RESPONDENT

AFFIDAVIT

I, the above named deponent, solemnly affirm and state on oath as under:
1. That I am the Petitioner in the above mentioned writ petition and am fully conversant with the
facts deposed to in the Writ Petition.
2. That the contents of paragraphs 1 to 5 of the accompanying writ petition are true to my
personal knowledge. No material has been concealed and no part is false.

DEPONENT
Signed at New Delhi, 28th September, 2018.

VERIFICATION

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

DEPONENT