A 48

TEAM CODE: A-48

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

BEFORE THE HON’BLE SC OF ENDOR

IN THE MATTER OF:
BEN YODA FOUNDATION ... PETITIONER
V.
THE UNION OF ENDOR … RESPONDENT
WRIT PETITION NO. ****/****
ON SUBMISSION TO THE HON’BLE SC OF ENDOR
UNDER ART. 32 OF THE CONST. OF ENDOR
COUNSEL APPEARING ON BEHALF OF THE PETITIONER
17TH AMITY NATIONAL MOOT COURT COMPETITION, 2018

TABLE OF CONTENTS
List of Abbreviations………………………………………… 4
Index of Authorities………………………………………….. 5
Statement of Jurisdiction…………………………………….. 9
Statement of Facts……………………………………………. 10
Issues Presented………………………………………………. 13
Summary of Arguments……………………………………… 14
Arguments Advanced………………………………………… 16
1. That the VDR Scheme and the VDR Act, 2012 is
unconstitutional ……………………………………………… 16
1.1 The VDR Scheme and the VDR Act, 2012 violate the
Fundamental Rights of the people…………………………… 16
1.1.1 Violation of the Right to Privacy of the people enshrined under
Art. 21………………………………………………………….. 17
1.1.1.1 Section 7 of the VDR Act, 2012 violates the Right to Life
including Right to Privacy guaranteed under Art. 21 of the
constitution of Endor………………………………………….. 17
1.1.1.2 The VDR Act, 2012 and the entire scheme infringes Right to
Privacy under Art. 21 of the Constitution…………………… 18
1.1.1.3 The VDR Act, 2012 and the entire scheme of the government
violates the right to dignity of the people of
Endor……………………. 21
1.1.1.4 Deprivation of Choice…………………………………………. 22
1.1.1.5 Constant State Surveillance …………………………………… 23
1.1.2 That the making of VDR Card mandatory in order to avail
several welfare schemes and the act itself violates the Right to
Speech and expression including Right to remain silent under
Art.19(1)(a) of the constitution of Endor……………………... 24
2
MEMORIAL ON BEHALF OF PETITIONER
1.1.3 The VDR Act, 2012 is in violation of Art. 14 of the

Constitution of Endor…………………………………………. 27
1.1.3.1 Narrow Tailoring Test………………………………………… 28
1.1.3.2 Test of Proportionality………………………………...……… 28
1.1.3.3 Test of Arbitrariness…………………………………………... 30
1.2 Conflict between Fundamental Rights and Directive Principles
of State Policy……………………………………..................... 30
2. Endor’s commitment under International Law……………. 31
3. Endor’s government has not taken adequate measures to
secure the data collected for the purpose of making VDR
cards…………………………………………………………… 32
3.1 Lack of security measures to prevent leak of data…………….. 32
3.2 Prevalence of ID theft…………………………………………. 33
3.3 De-duplication of identities…………………………………… 34
3.4 Violation of Information Technology Act, 2000 and the
Information Technology (Reasonable security practices and
procedures and sensitive personal data or information) Rules,
2011…………………………………………………………… 34
Prayer for Relief……………………………………………… 36
3
LIST OF ABBREVIATIONS
AIR : All India Report
All : Allahabad
AP : Andhra Pradesh
Art. : Article
Bom : Bombay
Cal : Calcutta
Del : Delhi
DPSP : Directive Principles of State Policy
HC : High Court
IT Act : Information Technology Act
Kar : Karnataka
PIL : Public Interest Litigation
PDS : Public Distribution System
SC : Supreme Court
SCC : Supreme Court Cases
SCR : Supreme Court Reporter
SLP : Special Leave Petition
u/s : Under Section
UOI : Union of India
US : United States
4
INDEX OF AUTHORITIES
CONSTITUTION
The Constitution of India, 1950
STATUTES
1. Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits

and Services) Act, 2016
2. Protection of Human Rights Act, 1993
3. Information Technology Act, 2000
CASES
1. Ahmedabad St Xavier’s College v State of Gujarat, 1975 SCR (1) 173 16
2. Her Majesty, The Queen v Brandon Roy Dyment [1988] 2 SCR 417 17
3. Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., 17, 18, 19,
AIR 2015 SC 3081 20, 21, 22,
23, 26, 27,
32, 33, 34
4. Kharak Singh v. State of UP, AIR 1963 SC 1295 17, 21, 24
5. Gobind v. State of Madhya Pradesh, AIR 1975 SC 1378 17, 24, 28
6. PUCL v. Union of India, AIR 1991 SC 207 17
5
7. Unni Krishnan v. State of A.P. (1964) 1 SCR 332. 18

8. Aruna Ramachandra Shanbaug v. Union of India & Ors, (2011) 4 SCC 19
454
9. Behram v State of Maharashtra, AIR 1955 SC 123 21
10. Basheshar Nath vs. the Commissioner Of Income-tax, Delhi &

Rajasthan, (1959) AIR 149 21
11. Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 1746. 21
12. Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461. 21

13. Maneka Gandhi v. Union of India, 1978 AIR 597 SCR (2) 621 22
14. Chameli Singh v. State of U.P., (1996) 2 SCC 549 22
15. LIC of India v. Consumer Education and Research Centre, (1995) 5 22

SCC 482
16. Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 22
17. Union of India v. Col. L.S.N. Murthy, (2012) 1 SCC 718 24

18. Ram Jethmalani vs Union of India (2011) 8 SCC 1 26
19. R.K. Dalmia v. Justice S.R. Tendolkar, (1959) SCR 279 28, 29, 30
20. Modern Dental College and Research Centre & Ors. v. State of Madhya 28, 30
Pradesh, (2016) 7 SCC 353
21. Anuj Garg v. Hotel Association of India (2008) 3 SCC 28
22. M.R.F Ltd. v. Inspector of Kerala Govt., (1998) 8 SCC 227 29
23. Binoy Viswam v. Union of India, Writ Petition(Civil) No.247 Of 2017, 29

Supreme Court of India
24. Kathi Ranning Rawat v. State of Saurashtra, AIR 1952 SC 123 30
25. Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404 30
26. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555 30
27. State of Madras v. Champakam Dorarirajan, AIR 1951 SC 228 30
28. Minerva Mills v. Union of India, AIR 1980 SC 1789 31
6
29. Bachan Singh v. State of Punjab, (1980) 2 SCC 684 31

30. Vishaka v State of Rajasthan, (1997) 6 SCC 241 31
FOREIGN CASES
1. Speiser v. Randall, 357 U.S. 513, 526 (1958) 17
2. Frost & Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 594 23
(1926)
3. Metro Broadcasting, Inc. v. Federal Communications Commission, 497
U.S. 547 (1990) 28
4. Grutter v. Bollinger, 539 U.S. 306 (2003) 28
BOOKS
1. MP Jain, Indian Constitutional Law, 901 (6th ed. reprint, Lexis-Nexis

Butterworth Wadhwa Publications, Nagpur, 2012) 16
2. Emmanuel Kant, The Moral Law: Groundwork of the Metaphysic of

Morals, 42 (Herbert James Paton eds., Psychology Press, London, UK,
2005). 23
3. Gautam Bhatia, “State Surveillance and the Right to Privacy in India: A

Constitutional Biography”, 148, Vol. 26(2) National Law School of
India Review, (2014) 28
4. Granville Austin, Cornerstone of a Nation (Indian Constitution), 75
Oxford India (1999) 30
7
INTERNATIONAL INSTRUMENTS
1. Art. 12, Universal Declaration of Human Rights, 1947 (Adopted on 31

December 10, 1948).
2. International Convention on Civil and Political Rights (Adopted by 31
United Nations General Assembly on December 16, 1966)
8
STATEMENT OF JURISDICTION
This Hon’ble Supreme Court of Endor has jurisdiction over the matter under Article 32 of
the Constitution of Endor. If the Court thinks appropriate to proceed in this matter, we
humbly accept your jurisdiction.
Article 32 of the Constitution of India, 1950:

Remedies for enforcement of rights conferred by this Part-
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution
9
STATEMENT OF FACTS
BACKGROUND
The Republic of Endor is a developing nation with population over 1.3 billion. Endor has a
lengthy Constitution which grants its citizens certain fundamental rights and recognises them
as equal in the eyes of law. Endor shares its borders with 7 countries and struggles with illegal
immigration and security threats throughout the year.
VDR
Due to its large population and inadequate infrastructure, a significant number of Endorians
struggle for basic amenities and require State support for their socio-economic development
and opportunities. The Imperial Party which formed the Government, therefore felt the need of
identification tools to cater to such needs. After due consideration, with relevant think tanks
they concluded that the National ID Scheme would be apt to fulfil the said needs.
Government of Endor decided to issue a Verifiable Data Registration Card (hereinafter known
as the “VDR” Card, pronounced as “Vader”). In 2012, the Government also presented a VDR
Bill in the Lower House of Parliament, which entitled every resident of Endor to a VDR
number.
A VDR number was voluntary and could be issued to any resident of Endor; therefore, was not
restricted only to its citizens. Further the government also promoted the scheme with respect
to effective delivery of the benefits with regards to health care, education etc. to the groups so
entitled.
The Bill was thoroughly opposed by the Leia Alliance, who branded it as a breach of the right
of privacy. It also expressed concern about the central database Palantir, being a dangerous
tool prone to misuse as well as leaks, owing to Endor’s lack of data protection laws. The
Government insisted on a vote, after which the Bill was passed with a simple majority in both
Houses in late 2012.
10
BINKS
For the purpose of issuing a VDR number, an individual’s biometric and demographic
information needed to be collected and stored in a central database. In order to execute this, an
executive order was passed in February 2011 by which the Government of Endor constituted
the Biometric Identification and National Knowledge System (“BINKS”) as the authority
responsible for collecting data and keeping it securely. A sum of Rs. 2,000/- Crore was allotted
to the BINKS to start the process. By 2015, over 90% of Endorians had been issued a VDR
Card. In 2015, there was a scattering of media reports about a few careless leaks, inaccuracy
of data and wrongful denial of pensions and basic food rations.
BEN YODA FOUNDATION
In September 2015, a major national newspaper published an investigative report detailing how
it was able to obtain access to the Palantir upon paying a measly sum of Rs. 500/- and access
all VDR numbers as well as the information associated with them. The reporter was able to see
names, addresses, photos, phone numbers, email addresses, etc. However, the biometric data
was not accessed.
In 2015, Ben Yoda Foundation, a civil rights group comprised of activists as well as lawyers,
filed a writ petition in the Supreme Court of Endor. The writ petition challenged the VDR Act,
2012 and the entire scheme as unconstitutional in nature. Issues of “shoehorning” the Bill
through the Parliament with no regards given to the concerns regarding civil liberties, accuracy
of data maintained and the overall integrity of the VDR scheme, were raised. The Foundation
also challenged the scheme as it violated the fundamental right to privacy, and claimed that the
VDR Act restricted a citizen's right to legal resources.
RIGHT TO PRIVACY PROCEEDINGS
Since the petitioner had claimed there was a violation of Right to Privacy under the said
petition, the Attorney General of Endor claimed that as the Constitution of Endor does not grant
a fundamental right to privacy. Hence, the violation of the same couldn’t be claimed. She also
11
reiterated the necessity of the VDR scheme to implement social security measures, and cited
various countries that have a similar identification mechanism. In 2017, a 9-judge bench of the
Supreme Court unanimously upheld the right to privacy as a fundamental right; however, the
bench differed on its limitations and reasonable restrictions.
CURRENT SCENARIO
Currently, the Government of Endor stands its ground about the VDR scheme being integral to
its social functions, and has ensured that the identification number has been linked to the
holders’ tax returns, insurance policies, mobile numbers and bank accounts. The Government
claims that the scheme does not lead to any infringement of the right to privacy, even as per
the 9-judge decision.
The matter has now returned to the Division Bench for its consideration, to consider all of the
issues raised in the above proposition. The final hearing is scheduled to take place on May the
4th, 2018.
12
ISSUES PRESENTED
ISSUE 1
WHETHER THE VDR ACT, 2012 AND THE ENTIRE VDR SCHEME BROUGHT BY THE
GOVERNMENT OF ENDOR IS CONSTITUTIONAL?
ISSUE 2
WHETHER THE GOVERNMENT OF ENDOR HAS ABIDED BY THE INTERNATIONAL

COMMITMENTS?
ISSUE 3
WHETHER THE GOVERNMENT OF ENDOR HAS TAKEN ADEQUATE MEASURES TO SECURE

THE DATA COLLECTED FOR THE PURPOSE OF MAKING VDR CARDS?
13
SUMMARY OF ARGUMENTS
1. WHETHER THE VDR ACT, 2012 AND THE ENTIRE VDR SCHEME BROUGHT BY THE
GOVERNMENT OF ENDOR IS CONSTITUTIONAL?
The said Scheme and the Act have been brought by the Government of Endor through
the Parliament of Endor, which come under the definition of state as per Art. 12 of
the Constitution of India. It is humbly submitted before the Hon’ble SC that the VDR
Act, 2012 and the entire VDR Scheme brought by the Government of Endor is
unconstitutional as they are in violation of fundamental rights guaranteed under Part
III of the Constitution of India. Thereby the Scheme and the Act are void as under
the Art. 13(2) of the Constitution.
2. WHETHER THE GOVERNMENT OF ENDOR HAS ABIDED BY THE INTERNATIONAL

COMMITMENTS?
Endor has recognized privacy as a fundamental constitutional value as a part of
Endor’s commitment to a global human rights regime and is required to endeavour
to foster respect for international law and treaty obligations in the dealings of
organized peoples with one another. Since the VDR Act and the entire scheme
infringes the privacy of the people, the government of Endor through its dealings has
violated the international commitments.
3. WHETHER THE GOVERNMENT OF ENDOR HAS TAKEN ADEQUATE MEASURES TO

SECURE THE DATA COLLECTED FOR THE PURPOSE OF MAKING VDR CARDS?
It is humbly submitted before the Hon’ble Court that the government has not taken
adequate measures to secure the data collected under the VDR Scheme. While,
penalties have been imposed for breach of data protection and leakage of data, there
is lack of adequate measures at the preventive stage itself, which makes it susceptible
to identity theft and other like offences. Further, due to the lack of data protection
14
laws and insufficient machinery to prevent data leakage, makes the data susceptible
to theft and leakage which results in the misuse of data.
15
ARGUMENTS ADVANCED
1. THAT THE CONSTITUTIONAL (104TH AMENDMENT) ACT, 2019 IS UNCONSTITUTIONAL

1. It is humbly submitted before this Hon’ble Court that the Constitutional (104th
Amendment) Act, 2019 (hereafter referred as the Amendment Act, 2019) is
unconstitutional as it violates the facets part of the basic structure of the constitution.
as laid out by the hon’ble Supreme Court in the case of Keshavananda Bharti.
1.1 THE CONSTITUTIONAL (104TH AMENDMENT) ACT, 2019 HAS VIOLATED THE FEDERAL
STRUCTURE OF THE CONSTITUTION.
It is humbly submitted before this Hon’ble court that the 104th Amendment Act, 2019
violates the federal scheme of the constitution, which form part of the basic structure of
the constitution as laid out in the case of Kesavananda Bharti & Ors. Vs. State of Kerala
and Anr. By the Supreme Court. Further
2. condition’ means any stipulation imposed upon the grant of a governmental privilege
which in effect requires the recipient of the privilege to relinquish some constitutional
right. This doctrine emphasizes the right he is conceded to possess by reason of an
explicit provision of the Constitution. This doctrine posits that a condition attached
to the grant of a governmental benefit is unconstitutional if it requires the
relinquishment of a constitutional right. The government may not deny a benefit to a
person on a basis that infringes his constitutionally protected interests-especially.1
1.1.1 VIOLATION OF THE RIGHT TO PRIVACY OF THE PEOPLE ENSHRINED UNDER ART. 21-
3. Privacy is a concomitant of the right of the individual to exercise control over his or
her personality. It finds an origin in the notion that there are certain rights which are
natural to or inherent in a human being. Natural rights are inalienable because they
are inseparable from the human personality. The human element in life is impossible
1
Speiser v. Randall, 357 U.S. 513, 526 (1958).
16
to conceive without the existence of natural rights. In Canadian landmark case, Her
Majesty, The Queen v Brandon Roy Dyment2 it was held that “This notion of privacy
derives from the assumption that all information about a person is in a fundamental
way his own, for him to communicate or retain for himself as he sees fit... In modern
society, especially, retention of information about oneself is extremely important. We
may, for one reason or another, wish or be compelled to reveal such information, but
situations abound where the reasonable expectations of the individual that the
information shall remain confidential to the persons to whom, and restricted to the
purposes for which it is divulged, must be protected.” Art. 21 takes all those aspects
of life which go to make a person's life meaningful and even State can’t violate it.3
The act and the scheme violate Art. 21 of the constitution which provides for right to
life and personal liberty under whose ambit the right to privacy falls.4
1.1.1.1 SECTION 7 OF THE VDR ACT, 2012 VIOLATES THE RIGHT TO LIFE INCLUDING
RIGHT TO PRIVACY GUARANTEED UNDER ARTICLE 21 OF CONSTITUTION OF ENDOR.
4. It is humbly submitted that BINKS being a body corporate5 is subject to section 43A
of the Information Technology Act, 2000 (“IT Act”) and subsequent Rules, i.e. -The
Information Technology (Reasonable security practices and procedures and sensitive
personal data or Information) Rules, 2011. Rule 5(7) of the aforesaid rules requires
that the individual must be provided with the option of ‘opting out’ of providing data
or information sought by the body corporate. Also, they must have the right to
withdraw consent at any point of time. Whereas in the present, the VDR Act, 2012
no such condition is fulfilled and therefore does not provide an opt- out provision and
also does not provide an option to withdraw consent at any point of time. Section 7
of the VDR Act actually implies that once the Central or State government makes
VDR authentication mandatory for receiving a benefit then the individual has no
other option but to apply for a VDR number. The only concession that is made is that
if a VDR number is not assigned to an individual then s/he would be offered some
alternative viable means of identification for receiving the benefit. Since, very
2
Her Majesty, The Queen v Brandon Roy Dyment [1988] 2 SCR 417.
3
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081 .
4
Kharak Singh v. State of UP, AIR 1963 SC 1295; See also, Gobind v. State of Madhya Pradesh, AIR 1975 SC
1378; PUCL v. Union of India, AIR 1991 SC 207.
5
Section 11, VDR Act, 2012.
17
sensitive personal information is collected not taking the consent of the concerned
person is also violates Right to Life including Right to Privacy under Article 21 of
the Constitution of Endor and therefore the petitioners contend that Section 7 of the
VDR Act, 2012 does not have compliance with the IT Rules, 2011 and also collection
of such personal information at a mandatory basis violates Art. 21 of the Constitution
of Endor.
1.1.1.2 THE VDR ACT, 2012 AND ENTIRE SCHEME INFRINGES RIGHT TO PRIVACY
PROVIDED UNDER ART.21 OF THE CONSTITUTION-
5. Privacy is the constitutional core of human dignity. At a normative level privacy sub-
serves those eternal values upon which the guarantees of life, liberty and freedom are
founded. At a descriptive level, privacy postulates a bundle of entitlements and
interests which lie at the foundation of ordered liberty. Privacy safeguards individual
autonomy and recognizes the ability of the individual to control vital aspects of his
or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy
protects heterogeneity and recognizes the plurality and diversity of our culture6 . A
citizen under this right has the right to protect and safeguard the liberty of his own,
his family, marriage, procreation, motherhood, childbearing and education among
other matters. 7
6. According to John Locke, “Though the Earth, and all inferior Creatures be common
to all Men, yet every Man has a Property in his own Person,” and Salmond reminds
us that he speaks “of a man’s right to preserve his own property i.e. his life, liberty
and estate.”
7. The legitimate expectation of privacy may vary from the intimate zone to the private
zone and from the private to the public arenas, it is important to underscore that
privacy is not lost or surrendered merely because the individual is in a public place.
Privacy attaches to the person since it is an essential facet of the dignity of the human
being.8
8. Right to Privacy is an inalienable right which inheres in the individual because he is
a human being. The recognition of such right in the fundamental rights chapter of the
6
7
Unni Krishnan v. State of A.P. (1964) 1 SCR 332.
8
18
Constitution is only a recognition that such right exists notwithstanding the shifting
sands of majority governments. In general, in common law it is the right of every
individual to have the control of his own person free from all restraints or
interferences of others.9 Statutes may protect fundamental rights; they may also
infringe them. In case any existing statute or any statute to be made in the future is
an infringement of the inalienable right to privacy, this Court would then be required
to test such statute against such fundamental right and if it is found that there is an
infringement of such right, without any countervailing societal or public interest, it
would be the duty of this Court to declare such legislation to be void as offending the
fundamental right to privacy.10
9. It is humbly submitted that the VDR Act, 2012 and the entire scheme has infringed
our Right to Privacy which is included under Right to Life under Art. 21 of the
constitution by taking excessive information which are sensitive and personal in
nature. An applicant has to provide basic details like finger prints, iris scan, address,
phone numbers, email addresses etc. which are integral and intimate to one’s
personality. Therefore, collection of such information violates the fundamental Right
to Life including the Right to Privacy enshrined in Art.21 of the constitution of Endor
which ensures and protects the life and liberty of every person.
10. It is humbly submitted before this Hon’ble court that in the case of Justice K S
Puttaswamy (Retd.), and Anr v. Union Of India And Ors, it was stated that what is
contained in that person’s bank account could perhaps be stated to be information
over which he expects a reasonable expectation of privacy and would, if divulged by
the bank to others, constitute an infraction of his fundamental right to privacy.11
Hence, the right to life and liberty and personal liberty under Art. 21 covers and
extends to a person’s right to protect his or her body and identity from harm. The
right to life extends to allowing a person to preserve and protect his or her finger
prints and iris scan.
11. It is humbly submitted before this Hon’ble court that the government of Endor has
ensured that the VDR number has been linked to the holder’s tax returns, insurance
9
Aruna Ramachandra Shanbaug v. Union of India & Ors, (2011) 4 SCC 454.
10
11
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081.
19
policies, mobile numbers and bank accounts.12 Thus, this amounts to an unreasonable
interference, encroachment and constitutes to an infraction on our Right to Privacy.
12. It is humbly submitted that collection of such intimate and personal information does
not have nexus to the objective of the Act. Intimate and private information is given
for making of VDR Cards and linking the card with holder’s tax returns, insurance
policies, mobile numbers and bank accounts which is violating the Right to Life
including Right to Privacy under the Constitution of Endor and personal information
can be used by these entities for personal purpose. The government has argued that
access to benefits can only occur upon the surrendering of privacy. The real issue is
not whether, in the abstract, citizens can surrender their fundamental rights if they so
choose. It is whether the government can impose waiver of fundamental rights as a
condition for accessing certain benefits.
13. With respect to VDR, the debate has been framed around the needs of poorer citizens
to access government benefits. For many of these citizens, the choice between
accessing benefits and losing privacy is a false choice, because it requires them to
choose between a privilege that is essential for their livelihood, and a fundamental
right. So the question arises whether it can be waived voluntarily, for which the
Supreme Court in Behram v State of Maharashtra 13examined this question and stated
that fundamental rights were not kept in the Constitution merely for individual
benefits. Fundamental rights were a matter of public policy and thus, the doctrine of
waiver does not apply in case of fundamental rights. In other words, a citizen cannot
‘give up’ his fundamental rights. Later, in the Basheshar Nath case14 limiting their
decision to Art. 14, held that the right conferred by the article, could not be waived.
Therefore, making of VDR card mandatory for welfare schemes and programmes
violate the right to speech and expression including the Right to remain silent under
article 19(1) (a) and Right to Life including right to privacy under article 21 of the
Constitution of Endor.
1.1.1.3 THE VDR ACT, 2012 AND THE ENTIRE SCHEME OF THE GOVERNMENT VIOLATES
THE RIGHT TO DIGNITY OF THE PEOPLE OF ENDOR
12
Para 13, Moot Problem.
13
Behram v State of Maharashtra, AIR 1955 SC 123.
14
Basheshar Nath vs. the Commissioner Of Income-tax, Delhi & Rajasthan, (1959) AIR 149.
20
14. Dignity is an integral part of the Constitution.15 It is humbly submitted that, this Court
has elucidated the concept of Right to Dignity in which it states that “This Court has
in numerous cases deduced fundamental features which are not specifically
mentioned in Part III on the principle that certain unarticulated rights are implicit in
the enumerated guarantees. It is the duty of the State not only to protect the human
dignity but to facilitate it by taking positive steps in that direction. No exact definition
of human dignity exists. It refers to the intrinsic value of every human being, which
is to be respected. It cannot be taken away. It cannot give (sic be given). It simply is.
Every human being has dignity by virtue of his existence.
15. Reflections of dignity are found in the guarantee against arbitrariness,16 the lamps of
17
freedom and in the right to life and personal liberty.18 The right to privacy is an
element of human dignity.19 Privacy ensures that a human being can lead a life of
dignity by securing the inner recesses of the human personality from unwanted
intrusion.20 The term, ‘life’ in Art. 21 does not mean ‘mere animal existence’, rather
right to live with dignity.21 Therefore, any violation of dignity of an individual is
violation of right to life of the individual.
16. In the present case, the respondent requires various demographic and biometric
information which are intimate to one’s personality, to be disclosed by the people for
the purpose of making VDR Cards. Furthermore, requirement to part with biometric
information is a violation of the privacy of the body of an individual, which is a part
of the integrity of an individual, enabling him to realize his freedom of thought, belief
and self- determination, which are essential components of the dignity of an
individual, as has been observed by the SC in K.S. Puttaswamy.22
17. The impugned provision coerces the individuals to part with their private information
which is a part of human dignity and thus, the said provision is violative of Art. 21
of the Constitution as it offended human dignity. In Maneka Gandhi v. Union of
15
Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 1746.
16
INDIA CONST. art. 14.
17
18
19
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
20
21
Kharak Singh v. State of U.P. and Ors., AIR 1963 SC 1295; See also, Francis Coralie v. Union Territory of
Delhi, AIR 1981 SC 1746.
22
21
India23, it was stated: "procedure which deals with the modalities of regulating,
restricting or even rejecting a fundamental right falling within Art. 21 has to be fair,
not foolish, carefully designed to effectuate, not to subvert, the substantive right
itself".
18. Right to live as a human being is secured only when a human being is assured of all
facilities to benefit himself,24 which includes privacy. The government by depriving
people of their privacy of mind and body is stripping them of their dignity.
1.1.1.4 DEPRIVATION OF CHOICE-

19. The claim of the government of Endor that VDR is voluntary holds no ground as the
government has made it necessary to have VDR cards for availing of various benefit
schemes. So, if a person does not enrol for VDR Card by disclosing the mandatory
information he shall not be able to avail the benefits of various government schemes,
which leaves the person with little to no choice but to get VDR card.
20. The Preamble chapter on Fundamental Rights and Directive Principles accords right
to livelihood contained within the meaning of right to life as a meaningful life, social
security and disablement benefits are integral schemes of socio-economic justice to
the people.25 While, VDR Cards have been made mandatory for non-benefit schemes
like linking with mobile connections,26 it intends the same with benefit schemes,
which will leave people bereft of choice while depriving their right to livelihood,
thereby infringing right to life of the people.
21. There can be no question of free consent in situations where an individual is being
coerced to part with its biometric information (a) to be eligible for welfare schemes
of the State; and/or (b) under the threat of penal consequences. In other words, the
State cannot compel a person to part with biometrics as a condition precedent for
discharge of the State’s constitutional and statutory obligations, it has to be voluntary.
22. Justice Sutherland of the US Supreme Court had spelt out how an unconstitutional
condition, in the garb of voluntariness, gives the carrier no choice “except a choice
between the rock and the whirlpool – an option to forego a privilege which may be
23
Maneka Gandhi v. Union of India, 1978 AIR 597 SCR (2) 621.
24
Chameli Singh v. State of U.P., (1996) 2 SCC 549.
25
LIC of India v. Consumer Education and Research Centre, (1995) 5 SCC 482; See also, Olga Tellis v. Bombay
Municipal Corporation, (1985) 3 SCC 545.
26
22
vital to his livelihood or submit to a requirement which may constitute an intolerable

burden.”27
23. The ability of an individual to make choices lies at the core of the human
personality.28 By depriving the people of Endor of their ability to choose, the
government of Endor is severely infringing on the right to life of the people.
1.1.1.5 CONSTANT STATE SURVEILLANCE-

24. Liberty is among the core values of the Constitution of Endor. Right to privacy which
is an integral part of Right to life ensures freedom from unwarranted state
intervention. Usually, various data that is collected is stored across multiple sources,
and data required for a particular purpose is being taken from individuals at one time.
This leads to the creation of informational silos. For example, the data required taking
a gas connection shall be different from that of opening a bank account. But the VDR
Scheme of the government, which aims to be used as a multipurpose identification
system, all the data pertaining to an individual could be accessed at one time. This
situation severely compromises with the individual’s autonomy, which is a well
enshrined concept in human rights philosophy by the great philosophers such as
Emanuel Kant.29 In other words, every decision made by a person in Endor could be
under state surveillance. This could potentially lead to the denial of, and access to,
many important social opportunities and other facilities for a particular section of
people, who could be discriminated against by the state, using the information
gathered from the VDR Scheme.
25. Such action is only justified in case where the person is accused of some offence,
otherwise regular surveillance of day to day transaction by the government of general
public is not just and fair in any manner and constitutes a violation of right to life of
the people.30
27
Frost & Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 594 (1926).
28
29
EMMANUEL KANT, The Moral Law: Groundwork of the Metaphysic of Morals, 42 (Herbert James Paton eds.,
Psychology Press, London, UK, 2005).
30
Gobind v. State of Madhya Pradesh, (1975)2 SCC 148; See also, Kharak Singh v. State of U.P. and Ors., AIR
1963 SC 1295.
23
1.1.2 THAT THE MAKING OF VDR CARD MANDATORY IN ORDER TO AVAIL SEVERAL
WELFARE SCHEMES AND THE ACT ITSELF VIOLATES THE RIGHT TO SPEECH AND
EXPRESSION INCLUDING RIGHT TO REMAIN SILENT UNDER ART. 19(1) (A) OF THE
CONSTITUTION OF ENDOR.
26. It is humbly submitted that the term ‘law’ includes any ordinance, order, bye-laws,
rule, regulation, notification, custom or usage having in the territory of Endor the
force of law.31 This means that, not only a piece of legislation, but any of the thigs
mentioned here can be challenged as infringing a Fundamental Right. So, making
VDR card mandatory to avail several welfare schemes and also linking of the holder’s
tax returns, insurance policies, mobile numbers and bank accounts is covered under
the definition of law and can be challenged in the court of law. Therefore it is clear
that not only law made by legislature but also an order or notification which takes
away or abridges the fundamental rights conferred by Part III of the Constitution
would be void.32
27. It is humbly submitted that the government has made the VDR number compulsory
in order to avail several welfare schemes and have left the citizens with no discretion
in so far as enrolment under the VDR Act, 2012 is concerned. Even though the act
and the scheme was voluntary in nature33 the government has in a way forced
enrolment by making the VDR number mandatory to avail benefits. Thus, it violates
the Right to Privacy and Right to remain silent provided by Art. 21 and Art. 19(1) (a)
of the constitution of Endor.
28. It is humbly submitted that the provision in effect treats an individual’s finger prints,
iris scan, phone numbers, email addresses etc. as belonging to the state, blurring the
distinction between an individual and the state. A statutory provision that completely
takes away the voluntary nature of VDR Act and compels expropriation of a person’s
finger prints, iris scan and other personal and very intimate information per se violate
Article 21.
29. It is humbly submitted that Section 7 of the VDR Act, 2012 makes making of a VDR
card mandatory for receiving any Government benefit of any Scheme or Subsidy.
The Central Government or, as the case may be, the State Government may, for the
31
INDIA CONST. art. 13, cl. 3(a).
32
Union of India v. Col. L.S.N. Murthy, (2012) 1 SCC 718.
33
Para 5 and 7, Moot Problem.
24
purpose of establishing identity of an individual as a condition for receipt of a

subsidy, benefit or service for which the expenditure is incurred from, or the receipt
therefrom forms part of, the Consolidated Fund of India, require that such individual
undergo authentication, or furnish proof of possession of VDR number or in the case
of an individual to whom no VDR number has been assigned, such individual makes
an application for enrolment: provided that if a VDR number is not assigned to an
individual, the individual shall be offered alternate and viable means of identification
for delivery of the subsidy, benefit or service.34
30. It is humbly submitted that Section 7 read along with Section 2(c) and 2(h) of the
VDR Act, 2012 makes it clear that Section 7 makes proof of VDR number mandatory
for subsidies, benefits or services from the Government, these actions defeat the very
purpose of the ideal of Sovereign, Socialist, Democratic Republic Welfare State as
enshrined in the Preamble.
31. It is humbly submitted that it any event coercion by mandatory linking cannot be
imposed on legitimate tax payers, assesses and bank account holders. In a digital
world, the right to life includes maintaining personal autonomy through informational
self-determination. An individual must be allowed to limit what he or she wants to
put out because otherwise her personal autonomy could get compromised.
32. It is humbly submitted that in Ram Jethmalani vs Union of India 35, this court held
that the revelation of the details of the bank accounts of individuals without the
establishment of a prima facie ground of wrongdoing would be a violation of the right
to privacy. This Court observed thus: “Right to privacy is an integral part of right to
life. This is a cherished constitutional value, and it is important that human beings be
allowed domains of freedom that are free of public scrutiny unless they act in an
unlawful manner. As constitutional adjudicators we always have to be mindful of
preserving the sanctity of constitutional values, and hasty steps that derogate from
fundamental rights, whether urged by Governments or private citizens howsoever
well-meaning they may be, have to be necessarily very carefully scrutinised.
33. In case of V.K. Javali v. State of Mysore, it was held that: under Art. 19(2), a
restriction can be imposed ‘In the interest of’ public order. The expression ‘In the
34
VDR Act, 2012.
35
Ram Jethmalani vs Union of India (2011) 8 SCC 1.
25
interest of’ gives a greater leeway to the legislature to curtail freedom of speech and
expression, for a law penalizing activities having a tendency to cause, and not actually
causing public disorder, may be valid as being ‘in the interest of’ public order.
However, the restriction imposed must have a reasonable and rational relation with
the public order, security of state, etc. If the nexus between the restriction and the
public order etc. is farfetched, then the restriction cannot be sustained as being in the
‘interest’ of public order, etc. As has been stated earlier, this introduces the concept
of proportionality in the area of Fundamental Rights. The coercion amounts to
compelled speech. The freedom of speech includes the right to remain silent. Here,
the citizen is being compelled to speak or part with his or her demographic
information as well as finger prints and iris scan and from there other personal
information.
34. It is humbly submitted that: As stated by this Hon’ble court “The state must ensure
that information is not used without the consent of users and that it is used for the
purpose and to the extent it was disclosed. Thus, for e.g., if the posting on social
media websites is meant only for a certain audience, which is possible as per tools
available, then it cannot be said that all and sundry in public have a right to somehow
access that information and make use of it.36
35. It is humbly submitted that the VDR Act, 2012 violates Article 19(1) (a) as it is
wholly disproportionate and excessive. The so called state interest is minuscule
compared to the massive invasion on person liberty and freedom. Whenever a person
voluntarily entrusts his finger prints and iris scan to the state, the ‘property’ and
entitlement is retained with that individual throughout his life. The state merely acts
as a trustee or fiduciary. The trustee or fiduciary cannot compel the “beneficiary” to
part with such sensitive person information. The framework of the VDR Act, 2012
and the whole scheme was founded on voluntary enrolment. This was a foundational
premise of the act. The voluntary nature of the scheme was time and again reiterated.
The state cannot alter this basic premise based on which individuals were asked to
enrol, by making it mandatory for attaining benefits of welfare schemes and linking
it.
36
26
36. The impugned provision coerces the individuals to part with their private information
which was a part of human dignity37 and, thus, the said provision was violative of
Art. 21 of the Constitution as it offended human dignity.
1.1.3 THE VERIFIABLE DATA REGISTRATION ACT, 2012 IS IN VIOLATION OF ART. 14 OF

THE CONSTITUTION OF ENDOR
37. It is humbly submitted that Art. 14 provides for equality before the laws and equal
protection of the laws. The VDR Act, 2012 is violating Art. 14 of the constitution on
applying the twin test of classification. Two tests have been provided by the SC
overtime, which any law passed by the government is required to satisfy, in order to
fulfil the requirements of Art. 14 of the Constitution, and the VDR Act is unable to
satisfy the requirements so laid down.
It is humbly submitted that the objective of VDR Act was to ensure that welfare schemes
reach deserving persons and no misuse takes place38 which means the government aims
to check leakage in government schemes and prevent corrupt practices in welfare
schemes. Even if the state succeeds in showing a proper purpose rational connection with
the purpose, thereby meeting the test of Art. 14, the impugned law clearly fails on clauses
(iii) narrow tailoring and (iv) balancing of the proportionality test laid down in R.K.
Dalmia vs Justice S.R. Tendolkar.39
1.1.3.1 NARROW TAILORING TEST-

38. It is humbly submitted that in the case of Anuj Garg v. Hotel Association of India40
Supreme Court held that the essential facet is to demonstrate 'narrow tailoring', i.e.,
that the State must demonstrate that even if a compelling interest exists, it has adopted
a method that will infringe in the narrowest possible manner upon individual rights.
It is contended that neither is there any compelling State interest warranting such a
harsh mandatory provision, nor has it been narrowly tailored to meet the object, if
any since the information collected is of very private nature therefore mandatory
provision makes it violative of Article 21 and 19(1)(a) of the Constitution of Endor.
37
38
39
R.K. Dalmia v. Justice S.R. Tendolkar, (1959) SCR 279 also in Modern Dental College and Research Centre
& Ors. v. State of Madhya Pradesh, (2016) 7 SCC 353.
40
Anuj Garg v. Hotel Association of India (2008) 3 SCC.
27
39. The State has failed to show that mandatory Linking of VDR card with its
accompanying consequences affecting the life of an individual is narrowly tailored
to achieving its goal. The measures taken by the government were not the least
restrictive measures, the compelling state interest 41of the government i.e. to fulfil the
objectives through collection of personal information should undergo great scrutiny
that is one right should not suffer from another that is there must be a balance should
be struck between public right and individual right and the measures so taken should
be tailored in a manner that infringes the right in narrowest manner i.e. it should
satisfy narrow tailoring test42 to achieve its goals with minimal interception.43
1.1.3.2 TEST OF PROPORTIONALITY-

40. It is humbly submitted before this Hon’ble court that, the Principle of Proportionality
envisages that a government ought to maintain a sense of proportion between its
particular goals and the measure it takes to achieve those goals, so that its action
impinges on the individual rights to the minimum extent so as to preserve public
interest.44 The government requires the people to part with basic information about
oneself, which is integral to one’s personality, such as core biometric information,
which could have as well been handled through other methods, given the facts and
circumstances. For instance, the highly successful SSN Programme of the U.S
government involves issuing of SSN cards to the residents which does not require
parting with biometric information; and yet the programme has been successful so
far in providing welfare entitlements to the needy. In accordance with the arguments
advanced above, the State’s own data shows that the problem of duplicate PANs or
Election cards was minuscule, and the gap between the tax payer base and the PAN
Card holding population can be explained by plausible factors other than duplicates
and forgeries. There is no wisdom compelling 99.6% of the taxpaying citizenry to
enrol for VDR (with the further prospect of seeding) in order to weed out the 0.4%
of duplicate PAN Cards, as it fails the proportionality test entirely. 45 The impugned
41
Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148; See also, Metro Broadcasting, Inc. v. Federal
Communications Commission, 497 U.S. 547 (1990).
42
Grutter v. Bollinger, 539 U.S. 306 (2003).
43
GAUTAM BHATIA, “State Surveillance and the Right to Privacy in India: A Constitutional Biography”, Vol.
26(2) National Law School of India Review, 148 (2014).
44
M.R.F Ltd. v. Inspector of Kerala Govt., (1998) 8 SCC 227.
45
Binoy Viswam v. Union of India, Writ Petition(Civil) No.247 Of 2017, Supreme Court of India.
28
provision is wholly disproportionate and excessive. The so called state interest is

minuscule compared to the massive invasion on person liberty and freedom.
41. On the principle of proportionality, it is submitted that this principle was applied in
R.K. Dalmia’s case 46 as per the following passage:
“11 (d) that the Legislature is free to recognize degrees of harm and may confine its
restrictions to those cases where the need is deemed to be the clearest; (e) that in
order to sustain the presumption of constitutionality the court may take into
consideration matters of common knowledge, matters of common report, the history
of the times and may assume every state of facts which can be conceived existing at
the time of legislation;…”
42. The affected persons by the objectives are individuals including people who are
professionals like lawyers, doctors, architects etc. and lakhs of businessmen having
small or micro enterprises. If the linking of VDR to PAN and bank account is made
mandatory then there is a direct infringement to Art. 19(1)(g)47. Once it is shown that
the right under Art. 19(1)(g) has been infringed, the burden shifts to the state to show
that the restriction is reasonable, and in the interests of the public, under Art. 19(6)
of the Constitution of Endor. The correct test to apply in the context of Art. 19(6) was
the test of proportionality.48
1.1.3.3 TEST OF ARBITRARINESS-

43. It is humbly submitted that the VDR Act, 2012 and the entire scheme is arbitrary as
no proper guidelines have been laid in the Act for its implementation by the
executive rendering it arbitrary49 which is the antithesis of right to equality
guaranteed to the people by the Constitution.50
1.2 CONFLICT BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE

POLICY-
46
R.K. Dalmia v. Justice S.R. Tendolkar, (1959) SCR 279.
47
INDIA CONST. art. 19, cl. 1(g) - to practise any profession, or to carry on any occupation, trade or business.
48
Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh, (2016) 7 SCC 353.
49
Kathi Ranning Rawat v. State of Saurashtra, AIR 1952 SC 123; See also, Kedar Nath Bajoria v. State of West
Bengal, AIR 1953 SC 404.
50
E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
29
44. As per the respondent the main aim of the VDR Act and the scheme is to ensure
welfare entitlements provided by the government adequately reach the needy and has
been brought to give effect to Directive Principles of State Policy. Though, Directive
Principles of State Policy are important in realizing the goals of the Constitution, the
same should not override the fundamental rights guaranteed to the people.51
45. Art. 37 of the Constitution of Endor provides that though directive principles are
fundamental in governance of the country, they are expressly made non- justiciable.
On the other hand, fundamental rights are enforceable by the Courts, and the courts
are bound to declare as void any law that is inconsistent with the fundamental rights.
The Directive Principles has to conform and run as a subsidiary to the chapter on
fundamental rights and in case of any conflict between fundamental rights and
directive principles, fundamental rights would prevail.52
46. The Constitution is founded on the bedrock of the balance between Part III and Part
IV, 53but one should not be given absolute primacy over the other. The goals set out
in the Part IV have to be achieved without the abrogation of the means provided for
by Part III. To destroy the guarantees given by Part III in order to achieve the goals
of Part IV is plainly to subvert the Constitution.54 Therefore, it is the responsibility
of the government to come up with a scheme which adequately preserves the
fundamental rights of the people.
2. ENDOR’S COMMITMENT UNDER INTERNATIONAL LAW-

47. The recognition of privacy as a fundamental constitutional value is a part of Endor’s
commitment to a global human rights regime. The state is required to endeavour to
“foster respect for international law and treaty obligations in the dealings of organized
peoples with one another”.55
48. The Universal Declaration of Human Rights of which India is a party recognises that
everyone has the protection of law against interference with his privacy, family, home
or correspondence, or attack upon his honour and reputation.56 Similarly, the
51
R K Dalmia v. Justice Tendulkar, AIR 1958 SC 538.
52
State of Madras v. Champakam Dorarirajan, AIR 1951 SC 228.
53
GRANVILLE AUSTIN, Cornerstone of a Nation (Indian Constitution) 75 Oxford India (1999).
54
Minerva Mills v. Union of India, AIR 1980 SC 1789.
55
INDIA CONST. art. 51 cl. C.
56
Art. 12, Universal Declaration of Human Rights, 1947 (Adopted on December 10, 1948).
30
International Covenant on Civil and Political Rights casts an obligation on states to

respect, protect and fulfil its norms. Art. 17 of the ICCPR casts a duty upon the states
to adopt and enact measures to prohibit undue interferences with the exercise of right
to privacy of people. No one shall be subjected to arbitrary or unlawful interference
with his privacy, family, home and correspondence nor to unlawful attacks on his
honour and reputation. While elaborating rights under this article, general comment
specifically stipulates that: “..there is a universal recognition of the fundamental
importance, and enduring relevance, of the right to privacy and of the need to ensure
that it is safeguarded, in law and practice.” The government in order to give effect to
these provisions of ICCPR has enacted the Protection of Human Right Act, 1993
which includes liberty as the basic human rights guaranteed to the people.57
49. The obligations assumed by India in International Conventions and Treaties, must
reflect in the legislations enacted by the government.58 Also, in absence of any
provision of domestic law, the provisions of the Conventions of which the country is
a party shall be applicable.59
50. The VDR Act and the scheme amounts to the attack upon the honor and reputation
which is sought to be protected by law as provided under Article 17 of the
International Covenant on Civil and Political Rights Act, 1966, to which India is a
party 60; are against the virtue of human dignity and it cannot be taken away. It is the
basic right which is encroached by the VDR Act, 2012.
3. ENDOR’S GOVERNMENT HAS NOT TAKEN ADEQUATE MEASURES TO SECURE THE DATA
COLLECTED FOR THE PURPOSE OF MAKING VDR CARDS
51. The VDR project of the government of Endor is devoid of adequate security measures
guarantee the security of data collected for the purpose of making VDR Cards.
Though, there are penal provisions for offences relating to data leakage in the VDR
Act, but there are no adequate security measures in place to ensure the protection of
data; thereby, giving rise to grave violation of the privacy of the people as the large
57
Section 2(1)(d), Protection of Human Rights Act, 1993.
58
Bachan Singh v. State of Punjab, (1980) 2 SCC 684; See also, Vishaka v. State of Rajasthan, (1997) 6 SCC
241.
59
Vishaka v State of Rajasthan, (1997) 6 SCC 241.
60
31
database of the VDR Project remains largely unprotected which is shown by an

investigative report of a major newspaper.61
3.1 LACK OF SECURITY MEASURES TO PREVENT LEAK OF DATA-

52. It is contended in this regard that mere presence of a full chapter on data protection
and penalties for leakage62 is not enough. In the present case, a major newspaper on
conducting an investigation was able to obtain access to the Palantir upon paying a
measly sum of Rs. 500/- and access all VDR numbers as well as the information
associated with them. The reporter was able to see names, addresses, photos, phone
numbers, email addresses, etc.63 which would compel any prudent individual to think
how prepared such security measures are, to face real time cyber and other threats.
“Nobody claims it is not a social justice welfare scheme. What they are worried about
is that whether information given to the agencies will be safe and for that do you have
a robust law. And if you don’t then you must have one,” Justice Chandrachud.64 The
Lok Sabha Standing Committee on Finance report on the Bill had given the United
Kingdom’s example to raise concerns over VDR’s security. (Incidentally, the UK
had abandoned its ID project due to “high cost, unsafe, untested technology and the
changing relationship between the state and the citizen.”
53. It is humbly submitted that “Data mining with the object of ensuring that resources
are properly deployed to legitimate beneficiaries is a valid ground for the state to
insist on the collection of authentic data. But, the data which the state has collected
has to be utilized for legitimate purposes of the state and ought not to be utilized
unauthorized for extraneous purposes”.65
54. It is contended that it is also necessary to highlight that a large section of citizens feel
concerned about possible data leak. This is a concern which needs to be addressed by
the government. It is important that apprehensions are assuaged by taking proper
measures so that confidence is instilled among the public at large that there is no
chance of unauthorized leakage of data whether it is done by tightening the operations
enrolment agencies, by prescribing severe penalties to those who are found guilty of
61
62
VDR Act, 2012.
63
Para 9, Moot problem.
64
65
32
leaking the details, is the outlook of the government. Measures in this behalf are
absolutely essential and it would be in the fitness of things that proper scheme in this
behalf is devised at the earliest as once the data is leaked it can be transferred easily
so just severe penalties are not sufficient. As information which is already leaked
cannot be protected further and therefore violates right to privacy of citizen.
3.2 PREVALENCE OF ID THEFT-

55. The scheme of VDR Cards brought by the government is susceptible to identity theft.
There have been many instances in several countries of information being stolen from
the government database of national identification programmes and recreation of
such information by illegal means. For instance, in Turkey, Personal details i.e. First
and last names, National identifier numbers Gender, City of birth, Date of birth, Full
address, ID registration city, district etc. of nearly fifty Million Turkish citizens,
including the country’s President Recep Tayyip Erdogan, have been compromised
and posted online in a massive security breach which is supposed to be the biggest
public breaches of its kind, effectively putting two-thirds of the Nation's population
at risk of identity theft and fraud. Even in the present case, there were reports of few
careless leaks66 and an investigative report was published detailing how it was able
to obtain access to the Palantir upon paying a measly sum of Rs. 500/- and access all
VDR numbers as well as the information associated with them.67
3.3 DE-DUPLICATION OF IDENTITIES-

56. There is consensus among scientists and legal experts regarding the limitations of
biometrics in proving identity. No accurate information exists on whether the errors
of matching fingerprints are negligible or non-existent. A small percentage of users
would always be either falsely matched or not matched at all against the database as
has happened in the present case which involves inaccuracy of data and wrongful
denial of pensions and basic food rations.68
66
Para 8, Moot problem.
67
68
33
3.4 VIOLATION OF INFORMATION TECHNOLOGY ACT, 2000 AND THE INFORMATION

TECHNOLOGY (REASONABLE SECURITY PRACTICES AND PROCEDURES AND SENSITIVE
PERSONAL DATA OR INFORMATION) RULES, 2011-
57. It is humbly submitted that Biometric Identification and National Knowledge System
(BINKS) falls under the ambit of the definition of state. As per Art. 1269, the ‘State’
includes the Government and Parliament of India and the Government and the
Legislature of each States and all local or other authorities within the territory of India
or under the control of the Government of India.
58. It is humbly submitted that the state must ensure that information is not used without
the consent of users and that it is used for the purpose and to the extent it was
disclosed.70 Whereas even Rule 5 of the Information Technology Rules, 2011
requires that prior to the collection of sensitive personal data; the body corporate must
obtain consent, either in writing or through fax regarding the purpose of usage before
collection of such information. Whereas the VDR Act is silent regarding consent
being acquired in case of the enrolling agency or registrars. However Section 8 of the
VDR Act provides that any requesting entity will take consent from the individual
before collecting his/her VDR information for authentication purposes, though it does
not specify the nature. But if the enrolling agency is a body corporate, they will also
be required to take consent prior to collecting and processing biometrics. It is possible
that since the VDR Act envisages a scheme which is compulsory in nature under
Section 7 of the Act, a consent provision is deliberately left out. This circumstance
would give the enrolling agencies the power to collect the data without the consent
of the individual, because given consent is of no more value. The compulsory nature
of the VDR scheme would mean that they are not required to take consent of the
individuals before enrolment. Since, very sensitive personal information is collected
not taking the consent of the concerned person thus Section 7 of the VDR Act, 2012
does not have compliance with the IT Rules, 2011.
59. It is humbly submitted before this Hon’ble Court that the doctrine of harmonious
construction applies when there is an accidental collision or conflict between two
enactments and the Supreme Court has repeatedly read down one provision to give
69
70
34
effect to other. Thus, both the provisions have to be given effect to. But if the collision
or conflict is such that one provision cannot co-exist with another, then the latter
provision must be struck down.
35
PRAYER FOR RELIEF
Wherefore in light of the issues raised, arguments advanced, and authorities cited, it is
prayed that this Hon'ble SC may be pleased to hold that:
1. The VDR Scheme and the VDR Act, 2012 is unconstitutional and violates the
Fundamental Rights of the people of Endor.
And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests
of Justice, Fairness, Equity and Good Conscience.
For This Act of Kindness, the Shall Forever Pray.
Sd/-
(Counsel for the Petitioner)
36

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WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

BEFORE THE HON’BLE SC OF ENDOR

IN THE MATTER OF:

BEN YODA FOUNDATION ... PETITIONER

THE UNION OF ENDOR … RESPONDENT

WRIT PETITION NO. ****/****

ON SUBMISSION TO THE HON’BLE SC OF ENDOR

UNDER ART. 32 OF THE CONST. OF ENDOR

COUNSEL APPEARING ON BEHALF OF THE PETITIONER

17TH AMITY NATIONAL MOOT COURT COMPETITION, 2018

1.1.3 The VDR Act, 2012 is in violation of Art. 14 of the

AIR : All India Report

DPSP : Directive Principles of State Policy

IT Act : Information Technology Act

PIL : Public Interest Litigation

PDS : Public Distribution System

SCC : Supreme Court Cases

SCR : Supreme Court Reporter

SLP : Special Leave Petition

u/s : Under Section

UOI : Union of India

The Constitution of India, 1950

1. Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits

1. Ahmedabad St Xavier’s College v State of Gujarat, 1975 SCR (1) 173 16

7. Unni Krishnan v. State of A.P. (1964) 1 SCR 332. 18

10. Basheshar Nath vs. the Commissioner Of Income-tax, Delhi &

12. Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461. 21

15. LIC of India v. Consumer Education and Research Centre, (1995) 5 22

17. Union of India v. Col. L.S.N. Murthy, (2012) 1 SCC 718 24

23. Binoy Viswam v. Union of India, Writ Petition(Civil) No.247 Of 2017, 29

29. Bachan Singh v. State of Punjab, (1980) 2 SCC 684 31

1. Speiser v. Randall, 357 U.S. 513, 526 (1958) 17

1. MP Jain, Indian Constitutional Law, 901 (6th ed. reprint, Lexis-Nexis

2. Emmanuel Kant, The Moral Law: Groundwork of the Metaphysic of

3. Gautam Bhatia, “State Surveillance and the Right to Privacy in India: A

1. Art. 12, Universal Declaration of Human Rights, 1947 (Adopted on 31

Article 32 of the Constitution of India, 1950:

BEN YODA FOUNDATION

RIGHT TO PRIVACY PROCEEDINGS

GOVERNMENT OF ENDOR IS CONSTITUTIONAL?

WHETHER THE GOVERNMENT OF ENDOR HAS ABIDED BY THE INTERNATIONAL

WHETHER THE GOVERNMENT OF ENDOR HAS TAKEN ADEQUATE MEASURES TO SECURE

2. WHETHER THE GOVERNMENT OF ENDOR HAS ABIDED BY THE INTERNATIONAL

3. WHETHER THE GOVERNMENT OF ENDOR HAS TAKEN ADEQUATE MEASURES TO

1. THAT THE CONSTITUTIONAL (104TH AMENDMENT) ACT, 2019 IS UNCONSTITUTIONAL

1.1.1.4 DEPRIVATION OF CHOICE-

vital to his livelihood or submit to a requirement which may constitute an intolerable

1.1.1.5 CONSTANT STATE SURVEILLANCE-

purpose of establishing identity of an individual as a condition for receipt of a

1.1.3 THE VERIFIABLE DATA REGISTRATION ACT, 2012 IS IN VIOLATION OF ART. 14 OF

1.1.3.1 NARROW TAILORING TEST-

1.1.3.2 TEST OF PROPORTIONALITY-

provision is wholly disproportionate and excessive. The so called state interest is

1.1.3.3 TEST OF ARBITRARINESS-

1.2 CONFLICT BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE

2. ENDOR’S COMMITMENT UNDER INTERNATIONAL LAW-

International Covenant on Civil and Political Rights casts an obligation on states to

WRIT PETITION NO. /