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TEAM CODE: T-47 R
BEFORE THE HON ’ BLE SC OF MANDIA
IN THE MATTER OF:
MR. SATISH DHANKAR ... PETITIONER
V.
THE UNION OF MANDIA ... RESPONDENT
SPECIAL LEAVE PETITION NO. ****/
ON SUBMISSION TO THE HON ’ BLE SC OF MANDIA
UNDER ART. 136 OF THE CONST. OF MANDIA
WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT
COUNSEL APPEARING ON BEHALF OF THE RESPONDENT
II
TABLE OF CONTENTS
List of Abbreviations .............................................................................................................. iv
Index of Authorities ................................................................................................................. v
Statement of Jurisdiction ....................................................................................................... ix
Statement of Facts .................................................................................................................... x
Issues Presented .....................................................................................................................xii
Summary of Arguments ...................................................................................................... xiii
Arguments Advanced .............................................................................................................. 1
[1]. That the Special Leave Petition is not maintainable ...................................................... 1
[1.1] No Exceptional and Special Circumstances exist and Substantial Justice has been done. ................................................................................................................................... 1 [1.2] Inference from a Pure Question of Fact is in itself a Fact ......................................... 2 [1.2.1] No Substantial Question of Law is involved...................................................... 2 [1.3] The Petitner has not exhausted Alternative Remedies available to him ................... 3
[2]. That the Pehchaan Policy of 2009 is valid even in the absence of Statutory support. 4
[2.1]. The Pehchaan Policy passes the Test of Principle of Proportionality ...................... 4 [2.2]. The Pehchaan Policy passes the Test of Wednesbury unreasonableness................. 5 [2.2.1] The Pehchaan Policy was not Arbitrary ............................................................ 5 [2.3]. The Executive can make Policies without Statutory support ................................... 6
[3]. That the Pehchaan Act, 2014 brought by the Government is Constitutional .............. 6
[3.1] That the State enjoys Legislative Competence in the instant case ........................... 7 [3.2] That the Pehchaan Act, 2014, consequently, is not a Colourable Legislation .......... 7
[4]. That the Pehchaan Project of the Government does not violate any of the Fundamental Rights provided by the Constitution. ............................................................. 7
[4.1] Right to Privacy is not absolute and is not violated by the Pehchaan Project........... 8 [4.1.1] Pehchaan Act, 2014 brought by the Government is in accordance with, ‘Procedure Established by Law’ provided under Art. 21 of the Constitution ............... 9
IV
LIST OF ABBREVIATIONS
¶ : Paragraph
AIHC : All India HC Cases
AIR : All India Report
AP : Andhra Pradesh
Art : Article
Bom : Bombay
Cal : Calcutta
Cri : Criminal
Del : Delhi
DPSP : Directive Principles of State Policy
HC : High Court
IT Act : Information Technology Act
MOCCA : Maharashtra Organized Crime Control Act
PIL : Public Interest Litigation
PDS : Public Distribution System
SC : Supreme Court
SCC : Supreme Court Cases
SLP : Special Leave Petition
UOI : Union of India
US : United States
UK : United Kingdom
V
INDEX OF AUTHORITIES
CONSTITUTION
Art. 136, Const. of India. Const. of Mandia………………………………………………………………………...passim
STATUTES
- Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016...................................................................................................................................... 19
- Information Technology Act, 2000...................................................................................... 20
- U K Human Rights Act, 2000 ................................................................................................ 8
CASES
- Air India Statutory Corp. v. United Labour Union, AIR 1997 SC 645 ................... 11, 15, 16
- Amarchand Sobhachand v CIT AIR 1971 SC 720 ................................................................ 2
- Arunalchalam v. Sethuratnam, AIR 1979 SC 1284 ............................................................... 2
- Atam Prakash v. State of Haryana, AIR 1986 SC 859 ........................................................ 16
- Basheshar Nath v.The Commissioner of Income Tax, Delhi & Rajasthan, AIR 1959 SC 149.......................................................................................................................................... 5
- Bihar Public Service Commission v Saiyed Hussain Abbas Rizwi, (2012) 13 SCC 61 ....... 8
- Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748 ....................................................... 10
- Bijoy Cotton Mills v. State of Ajmer, AIR 1955 SC 33 ...................................................... 18
- Binoy Viswam v. Union of India & Ors., (2017) 4 SCC 673 ........................................ 12, 15
- British India Steam Navigation Co. Ltd. v. Jasjit Singh Additional Commissioner Of Customs, AIR 1964 SC 1451 ................................................................................................. 3
- Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191............................................. 13, 14
- C.E.S.C. Ltd. v. S.C. Bose, AIR 1992 SC 573 .................................................................. 16
- Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore, AIR 1970 SC 2042...................................................................................................................................... 17
- CIT v Maganlal Chaganlal (P) Ltd. (1997) 11 SCC 557 ..................................................... 2
- CIT v. Orissa Corp Ltd., AIR 1986 SC 1849....................................................................... 2
- Commissioner of Central Excise Jamshedpur v. Dabur (India) Ltd., (2005) 3 SCC 646 .. 14
- Commissioner of Income Tax v P. Mohanakala (2007) 210 CTR 20 ................................. 3
- Council of Scientific and Industrial Research v K. G. S. Bhatt (1989) 4 SCC 635............. 1
FOREIGN CASES
- [4.1.2] Pehchaan Project of the Government is in view of Compelling State Interest - [4.1.2.1] National Security of the State.................................................................... - [4.1.2.2] Right to Remain Silent - [4.1.2.3] Prevention of Corruption - [4.1.2.4] Avoiding Duplicity of Identities - [4.1.3] There is no Reasonable Expectancy of Privacy on part of citizens
- violate Art. 14 of the Constitution [4.2] Pehchaan Policy and the Pehchaan Act, 2014 brought by the government do not
- [4.2.1] Pehchaan Project satisfies the Test of Reasonable Classification
- [4.2.2] Pehchaan Project satisfies the Test of Arbitrariness
- Policy guaranteed under Part IV of the Constitution of India [4.3] Pehchaan Project has been brought to give effect to Directive Principles of State
- [4.3.1] Establishment of Socialist Welfare State
- [4.3.1.1] Social and Economic Justice
- [4.3.1.2] Maintenance of Public Health
- to Directive Principles of State Policy [4.3.2] Reasonable restrictions can be imposed on Fundamental Rights to give effect
- [4.3.2.1] Reasonable restrictions imposed on Art. 19(1)
- the purpose of making Pehchaan Cards. [5]. That the Government has taken adequate measures to Secure the Data collected for
- [5.1] Protection of Data throgh Adequate Security measures..........................................
- [5.1.1] Provision of Effective Sanctions
- [5.1.2] Delegation of Authority to Private entities for collection of Data
- [5.2] Presumption of misuse of Data
- Prayer for Relief
- Dalmia Cement (Bharat) Ltd. V. Union of India, (1996) 10 SCC
- Dhakeswari Cotton Mills Ltd. v CIT West Bengal AIR 1955 SC
- E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC
- Gobind v. State of Madhya Pradesh & Anr., (1975) 2 SCC
- Gurbakhsh Singh v. State of Punjab, AIR 1955 SC
- Hero Vinoth (Minor) v Seshammal AIR 2006 SC 2234......................................................
- Jalan Trading Co. v. Mill Mazdoor Sabha, AIR 1967 SC
- Kartar Singh v. State of Punjab, (1994) 3 SCC
- Kasturi Lal Lakshmi Reddy v. State of J&K, AIR 1980 SC
- Kathi Ranning Rawat v. State of Saurashtra, AIR 1952 SC
- Kedarnath Bajoria v. State of West Bengal, AIR 1953 SC 404 13,
- Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461 16,
- Lokniti Foundation v. Union of India & Ors, WP(C) No.612/2011
- M. Janardhana Rao v Joint Commissioner of Income Tax AIR 2005 SC
- M.P.V. Sundararamier & Co. v. State of A.P., AIR 1958 SC
- Malabar Industrial Co. Ltd. v CIT (2000) 243 ITR
- Maneka Gandhi v. Union of India, AIR 1978 SC 597..................................................... 5,
- Mihir Alias Bhikari Chauhan Sahu v. State, 1992 Cri LJ
- Mr. X v. Hospital Z, (1998) 8 SCC 296...............................................................................
- Naga People’s Movement v. Union of India, (1998) 2 SCC
- Namit Sharma v. Union of India, (2013) 1 SCC 745...........................................................
- Naraindas v. State of Madhya Pradesh, AIR 1974 SC
- Narpat Singh v. Jaipur Development Authority, (2002) 2 SCC
- Omkumar v. Union of India, AIR 2000 SC
- Onkarlal Nandlal v. State of Rajasthan, (1985) 4 SCC 404.................................................
- Papanasam Labour Union v. Madura Coats Ltd., (1995) SCC 1 501 17,
- Partap Singh v. State of Punjab, AIR 1964 SC
- Paschim Band Khet Mazdoor Society v. State of West Bengal, (1996) 4 SCC
- Pathumma v. State of Kerala, (1978) 2 SCC 1 16,
- People’s Union for Civil Liberties v. Union of India & Ors., 2010) 5 SCC 318...............
- People’s Union for Civil Liberties v. Union of India, AIR 1991 SC 207............................
- Ram Jawaya v. State of Punjab, AIR 1955 SC
- Ram Manohar Lohia v. State of Bihar, AIR 1966 SC
- Ram Prasad v. State of Bihar, AIR 1953 SC
- Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC VII
- Re Special Courts Bill Case, AIR 1978 SC
- Sajjan Singh v. State of Rajasthan, AIR 1965 SC
- Sanjeev Coke Mfg. Co. v. Bharat Coal Ltd. AIR 1983 SC
- Sharda v. Dharam Pal, (2003) 4 SCC
- Sharma Transport v. Govt. of A.P., AIR 2002 SC 322........................................................
- Sir Chunilal Mehta & Sons Ltd. v Century Spinning & Mfg. Co. Ltd. AIR 1962 SC
- State of Bihar v. Kameshwar Singh, AIR 1952 SC
- State of Bombay v. F.N. Balsara, AIR 1951 SC
- State of Gujrat v. Mirazpur Moti Kureshi Kassab Jamat, AIR 2006 SC
- State of H. P. v Kailash Chand Mahajan AIR 1992 SC 1277..............................................
- State of Maharashtra v Bharat Shanti Lal Shah, (2008) 13 SCC
- Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC
- Union of India v Rajeshwari & Co. AIR 1986 SC
- Unnikrishnan v. State of A.P., AIR 1993 SC 2178............................................................
- V. Markandeya v. State of A.P., AIR 1989 SC
- Housing, (1999) 1 A.C. 69, 1. De Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Land and
- SA 545 (CC) 2. Investigating Directorate: Serious Offences v. Hyundai Motor Distributors Ltd, 2001 (1)
- Katz v. United States, 389 US 347 (1967)
- R v. Director of Serious Fraud Office, Ex parte Smith, [1993] AC
- Sante Animale (FEDESA), (1991) 1 C.M.L.R. 5. R v. Minister of Agriculture, Fisheries and Food, ex parte Federation Europeenne de la
- Schmerber v. CA, 384 US 757 (1966)
- U.S. v. Dionisio, 410 US 1, 764, 35 L. Ed. 2d 67 (1973)
- United States v. Carolene Products, 304 U.S. 144 (1938)
VIII
BOOKS
- D. D. Basu Commentary on The Constitution of India, Vol. 3, 3138 (8th^ ed., Lexis Nexis Butterworth Wadhwa Publications, Nagpur, 2008) ............................................................. 16
- H.M. Seervai, Constitutional Law of India, VOL. I, 252 (4th^ edn., Universal Law Publishing, Allahabad 2010) .................................................................................................. 1
- John Adler, General Principles of Constitutional and Administrative Law, 385 (4th^ ed., Palgrave Macmillan, Basingstoke, United Kingdom, 2002) ................................................. 4
- John Austin, The Province of Jurisprudence Deternined, 90, (1st^ ed., Richard Taylor, London, 1832) ...................................................................................................................... 19
- M P Jain, Indian Constitutional Law, (7th ed., Lexis-Nexis Butterworth Wadhwa, Nagpur,
- ................................................................................................................................ 1, 14
- Public Private Partnerships: A Global Review, (Akintola Akintoye, Mattihias Beck and Mohan Kumaraswamy eds., 25 Routledge, Taylor and Francis Group, London and New York, 2015) .......................................................................................................................... 20 INTERNATIONAL INSTRUMENTS
- Art. 8, European Convention on Human Rights, 1953 (Adopted on September 3, 1953) ... 8, 10
- Art. 9, International Convention on Civil and Political Rights (Adopted by United Nations General Assembly on December 16, 1966) ........................................................................... 9 REPORTS
- Indrajit Gupta Committee Report on State Funding of Elections, Ministry Of Law, Justice And Company Affairs, Government Of India, 21 (December, 1998) ................................. 12
- Justice Wadhwa Committee, Public Distribution System Report on The State of Tamil Nadu (2007) ......................................................................................................................... 12 ARTICLES
- Bageshree, Biometric Identification for Ration Cards too, The Hindu November 29, 2007 .............................................................................................................................................. 11
- Julian Rivers, Proportionality and Variable Intensity of Review, 65(1) Cambridge Law Journal 174, 181 (2006). ........................................................................................................ 4
- Stephen Hall, The Persisitent Spectre: Natural Law, International Order and Limits of Legal Positivism Vol. 12(2) European Journal of International Law 269, 270 (2002) ....... 19
X
STATEMENT OF FACTS
BACKGROUND
The Republic of Mandia has a democratic parliamentary form of government with a federal structure based on principles of free and fair elections, equality, liberty, fraternity, transparency, accountability of state, freedom of religion, independent and autonomous judiciary and election commission, inter alia as its core values. The Constitution of Mandia also provides for an independent judiciary.
THE PURPOSE OF MAKING PEHCHAAN CARDS The government formulated ‘Pehchaan Policy’ for profiling of its citizens for making of Pehchaan cards. This policy aimed at saving duplicity of identities, identifying illegal immigrants, checking the leakage in the government schemes and preventing corruption happening in PDS and other subsidy providing schemes of the government.
CONSTITUTION OF NATIONAL UNIQUE IDENTIFICATION AUTHORITY
National Unique Identification Authority was constituted on 30th^ November, 2009 which assigned the task of making Pehchaan cards to private entities having expertise. For this purpose, they took citizen’s details like finger prints of both hands, scanning of iris, blood group, spouse and children details, educational qualification, number of spouses and their religion, details of life-threatening diseases like AIDS, cancer, hepatitis-B, permanent infertility, criminal/civil cases pending and government loan or any other liability.
PIL FILED BY MR. SATISH DHANKAR
Petitioner, Mr. Satish Dhankar, challenged the policy of mandatory Pechaan cards in the HC of Nelhi on 22nd^ January, 2009 through PIL contending Pehchaan policy violates right to privacy and right to speech and expression- especially the right to remain silent and not to part with intimate information about oneself. He contended making it mandatory to provide information that is very intimate and integral to one’s personality is unconstitutional and violative of fundamental rights. Meanwhile, the govt. made Pehchaan card compulsory for seeking benefits under social welfare schemes. Subsequently, on clarification of interim order passed by HC, issued on Petitioner’s plea, the govt. could make it mandatory only for non- benefit schemes.
XI
AMENDMENT OF PETITION
On 11th^ August, 2014, the govt. enacted the Pehchaan Act, 2014 which made Pehchaan cards mandatory for all benefit and non-benefit schemes, and it gave statutory basis to the National Unique Identification Authority. This Act provided for data protection and penalties and punishments for data leakages. The petitioner, thereby requested for amendment of Petition to challenge the Pehchaan Act, 2014 as well, which was accepted by HC. Subsequently, the petitioner contended that data collected by the govt. is not safe and it can be leaked to private entities threatening life and liberty of people. He also claimed that this data can be used by private companies for telemarketing or for communal profiling of the communities. The respondents responded to this by arguing that there is no right to privacy provided in any provision of Constitution of Mandia and promised to bring soon a substantive law for data protection.
REJECTION OF PIL BY HC
The HC rejected the PIL after hearing the matter in detail and held that Pehchaan Act, 2014 is constitutional and Pehchaan cards can be made mandatory. It further held that the right to deny information to the govt. cannot be held to be fundamental right in the light of necessity to protect the state from terrorism and other security related problems. It also held that making Pehchaan mandatory is essential for the benefits of schemes to reach to citizens, to eradicate the problem of duplicity of identities, and to make elections free and fair. The HC also justified the collection of data by private entities for the Pehchaan by quoting lack of adequate resources, expertise and staff for this purpose.
SLP FILED BY PETITIONER IN SC
The petitioner has approached the SC of Mandia through a Special Leave Petition and has prayed for quashing the judgment of Hon’ble HC of Nelhi and to declare the Pehchaan Act, 2014 and the whole Pehchaan project of the govt. of Mandia to be unconstitutional.
XIII
SUMMARY OF ARGUMENTS
[1]. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE?
It is humbly submitted before the Hon’ble Court that the appeal filed by the petitioner is not maintainable as Special Leave cannot be granted when substantial justice has been done and no exceptional or special circumstances exist for the case to be maintainable. Also, there has been no failure of justice and Special Leave Petition cannot be granted just because the decision of HC might be suffering from some legal errors. Further, no substantial question of law is involved in the present case and interference is based on pure question of fact which is entitled to be dismissed as per the test laid down under the case of Chunni Lal. Moreover, the petitioner has not exhausted alternative remedies. In the present case no special circumstances existed to forgo the statutory process of appeal. The petitioner had an option to appeal to the concerned HC’s higher bench or apply for revision. In case of failure of above remedies, the petitioner also had an option to pursue his case before the SC under Art. 132 which provides for appellate jurisdiction of SC in appeals from HC in civil, criminal or other matters. [2]. WHETHER THE PEHCHAAN POLICY OF 2009 IS VALID EVEN IN THE ABSENCE OF STATUTORY SUPPORT?
The Pehchaan Policy has passed the test of Wednesbury reasonableness as well the test of doctrine of proportionality which govern the judicial review aspect of administrative discretion. Moreover, all executive policies need not be backed by statutory support. Even if there’s a violation of legal right, Pehchaan Policy has legal backing in Pehchaan Act, 2014.
[3]. WHETHER THE PEHCHAAN ACT, 2014 BROUGHT BY THE GOVERNMENT OF MANDIA IS CONSTITUTIONAL?
The government of Mandia enjoys full legislative competency and the enactment of the Pehchaan Act, 2014 is within its authority as provided under List I of the Seventh Schedule. Further, the objectives of the Act are completely clear and the Act does not seek to do indirectly what it cannot do directly, and is therefore not a colourable legislation. Also, the Act is not in violation of any of the fundamental rights provided by the Constitution and is therefore constitutionally valid.
XIV
[4]. WHETHER THE PEHCHAAN PROJECT OF THE GOVERNMENT VIOLATES ANY OF THE
FUNDAMENTAL RIGHTS PROVIDED BY THE CONSTITUTION?
It is humbly submitted before the Hon’ble Court that the ‘Pehchaan Policy and Pehchaan Act, 2014’, brought by the government is not in violation of any of the fundamental rights of the people. Right to Privacy, though recognised as fundamental right, is not absolute and is subject to reasonable restrictions. Pehchaan Project of the government is in accordance with procedure established by law provided under Art. 21 of the Constitution, as it satisfies the requirements of Arts. 14 and 19 and is also just, fair and reasonable. It aims at reasonably classifying people while laying down proper guidelines to successfully implement welfare schemes.
In fact, the policy is to enable the establishment of welfare state, which is one of the core values of the Constitution of India. It aims at bringing equality, by identifying the needy and their needs. The whole policy is to give effect to Directive Principles of State Policy, to subserve the common good, and reasonable restrictions can therefore be imposed on fundamental rights of the people to give effect to Directive Principles of State Policy as per Art. 37 of the Constitution of India, for larger public interest.
[5]. WHETHER THE GOVERNMENT HAS TAKEN ADEQUATE MEASURES TO SECURE THE DATA COLLECTED FOR THE PURPOSE OF MAKING PEHCHAAN CARDS?
The government of Mandia has taken adequate measures to secure the data collected under the Pehchaan Project. Chapter VI and VII of the Aadhaar Act, 2016 deal with Protection of data and Offences & Penalties for breach of any such data. Authorities who have been given the power to collect data or the persons who have been delegated such power by the authorities, under the scheme are under the obligation to employ enough security measures to ensure the protection of the data so collected, and they are liable to penalty, if there is any accidental or intentional disclosure of information on their part. The Act, also provides that the biometric information collected under the policy shall not be used for any purpose other than generation of Aadhaar cards. Also, unauthorized sharing of sensitive personal information attracts liability to compensate under the Information Technology Act, 2000.
extraordinary situations.^5 The provision does not give right to the party to appeal to the SC rather it confers a wide discretionary power on the SC to interfere in suitable cases.^6
[1.2] INFERENCE FROM A PURE QUESTION OF FACT IS IN ITSELF A FACT
- It is contended by the Respondent that the appeal doesn’t involve any substantial question of law rather it involves pure question of fact and hence, is not maintainable. Questions of fact cannot be permitted to be raised unless there is material evidence which has been ignored by the HC or the finding reached by the court is perverse.^7
- Generally, on finding of fact, no interference should be made.^8 Even in cases where conclusions are reached without proper discussion, yet if it involves finding on fact, no interference of SC is called for.^9 Further, if the conclusion is based on some evidence on which subsequently a conclusion could be arrived at, no question of law is raised.^10
- The Apex Court has recognized that Right to privacy is a fundamental right emanating from Art. 21, subject to reasonable restrictions.^11 Therefore, the contention of the Petitioner that the Pehchaan Project infringes upon the citizens’ right to privacy is purely a question of fact which can be decided on the basis of predetermined question of law as to the scope of right to privacy and hence, not open to review.
[1.2.1] 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.^12 Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. It cannot be decided merely on equitable grounds.
(^5) Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, AIR 1955 SC 65; See also, Arunalchalam v. Sethuratnam, AIR 1979 SC 1284; See also, H.M. Seervai, Constitutional Law of India, VOL. 1, 252 (4th^ ed., Universal Law Publishing, Allahabad 2010). 6 7 Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, AIR 1955 SC 65. Union of India v. Rajeshwari & Co., AIR 1986 SC 1748; See also, Gurbakhsh Singh v. State of Punjab, AIR 1955 SC 320. 8 9 CIT v. Maganlal Chaganlal (P) Ltd., (1997) 11 SCC 557. 10 Amarchand Sobhachand v. CIT, AIR 1971 SC 720. 11 CIT v. Orissa Corp Ltd., AIR 1986 SC 1849. 12 K. S. Puttaswamy and Anr. v. Union of India and Ors., AIR 2015 SC 3081 Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234.
- As per the test laid down under Sir Chunilal Mehta & Sons Ltd. v Century Spinning & Mfg. Co. Ltd. ,^13 to determine whether a substantial question of law is involved is an open question in the sense that there is no scope for interference by the HC with a finding recorded when such finding could be treated to be a finding of fact;^14 if the question has been well- settled by the Highest Court and it is merely a question of applying the settled principles in determination of the matter.^15
- Re-appreciation of evidence and substitution of the findings by the HC is impermissible.^16 Hence, it is submitted that on account of the fact that the position is well-settled by this Court in its earlier decisions,^17 no substantial question of law is involved in the present case.
[1.3] THE PETITIONER HAS NOT EXHAUSTED ALTERNATIVE REMEDIES AVAILABLE TO HIM
- The doctrine of exhaustion of alternative remedies guides the practice and procedure of the SC in the exercise of its power conferred under Art. 136. As per the principle, all the statutory remedies would have to be exhausted before approaching the SC under its special jurisdiction, unless special circumstances can be shown to convince the court that it must allow the appeal.^18 In the instant matter, the petitioner’s PIL filed in the HC of Nelhi was rejected, so he approached this Hon’ble Court through a SLP^19 without resorting to the appeal to the court under Art. 32 which was available to him as an alternative forum and as his Fundamental Right and no special circumstances existed to forego the statutory process of appeal.
- The petitioner also had an option to resort to the jurisdiction of HC by appeal to the Court’s higher bench or application for revision. The respondents humbly submit that keeping in view the precedents laid down by the Apex Court,^20 the petitioner’s sheer failure to exhaust the available alternative remedies renders the current SLP non-maintainable.
(^13) Sir Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., AIR 1962 SC 1314. (^14) M. Janardhana Rao v. Joint Commissioner of Income Tax AIR 2005 SC 1309. (^15) Sir Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., AIR 1962 SC 1314; See also, Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179. 16 17 Commissioner of Income Tax v. P. Mohanakala, (2007) 210 CTR 20. 18 Malabar Industrial Co. Ltd. v. CIT,(2000) 243 ITR 83. British India Steam Navigation Co. Ltd. v. Jasjit Singh Additional Commissioner of Customs, AIR 1964 SC
- 19 20 Moot Proposition, ¶28. Onkarlal Nandlal v. State of Rajasthan, (1985) 4 SCC 404.
[2.2]. THE PEHCHAAN POLICY PASSES THE TEST OF WEDNESBURY UNREASONABLENESS
- When an administrative action is questioned as arbitrary, the principle of Wednesbury Unreasonableness comes into operation.^28 It is a principle that applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it.^29 It, therefore, means that administrative discretion should be exercised reasonably and matters irrelevant to the subject must be excluded from consideration.^30
- In the instant case, the State had brought in the Pehchaan policy only to ensure that citizens enjoy manifold benefits through the process of generation of single identity which was free from the dangers of falsification and duplicity. There was no overt or covert administrative overreach and the government was objective in its approach.
[2.2.1] THE PEHCHAAN POLICY WAS NOT ARBITRARY
- ‘Arbitrarily’ means in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in nature of things, non- rational, not done or acting according to reason or judgment, depending on will alone.^31 Since Maneka Gandhi’s case ,^32 the Courts have adopted the Wednesbury principle that if the classification was an arbitrary act of the State under Art. 12 of the Constitution, Art. 14 would strike it down.^33 Art. 14 protects us from both legislative and executive tyranny by way of discrimination.^34
- The Pehchaan policy was a well thought-out administrative action, detailed and planned in its implementation. There was no element of whim or ambiguity which would make it fall within the purview of definition of ‘arbitrarily’, as propounded by this Hon’ble Court. Therefore, in the instant case of the Pehchaan policy of 2009, Art. 14 would not spring into action as its application has been limited by the legitimate and rational administrative discretion exercised.
(^28) Supra note 21 at 3704. (^29) Council of Civil Service Unions. v. Minister for the Civil Services, (1984) 3 All ER 935, 951. (^30) Associated Picture House v. Wednesbury Corporation, (1947) 2 All ER 680 (CA), 682-683. (^31) Sharma Transport v. Govt. of A.P., AIR 2002 SC 322. (^32) Maneka Gandhi v. Union of India, AIR 1978 SC 597. (^33) Kasturi Lal Lakshmi Reddy v. State of J&K, AIR 1980 SC 1992, ¶ 14. (^34) Basheshar Nath v. The Commissioner of Income Tax, Delhi & Rajasthan, AIR 1959 SC 149, ¶25.
- Assuming arguendo that administrative discretion was applied in a wrong manner, the Courts do not go into the merits of the exercise of discretion by the State as the Court cannot go into the question whether the opinion formed by the State is right or wrong.^35 The Court does not substitute its own views for that of the concerned administrative authority.^36
[2.3]. THE EXECUTIVE CAN MAKE POLICIES WITHOUT STATUTORY SUPPORT
- The administrative organ in India does not always need a statutory power to act and execute a policy.^37 The executive function includes the determination as well as carrying out of policy and therefore, has within its ambit initiation of legislation, maintenance of order and promotion of social and economic welfare.^38
- The executive can take administrative action without a specific statutory sanction over the entire area falling within legislative competence of the concerned legislature, if it does not infringe the legal right of any person.^39
- In the instant case, the creation and implementation of Pehchaan policy was well within the competence of the Central executive, its legislative correlative. Moreover, the Pehchaan policy was made to strengthen national security, and ramp up social, political and economic benefits. This Hon’ble Court must therefore resort to judicial deference as no legal rights of any person have been violated.
- Also, the Pehchaan policy of 2009 was given legislative backing by the medium of the Pehchaan Act, 2014 enacted on 11th of August, 2014,^40 so that the executive action affecting legal rights must have the authority of law.^41
[3]. THAT THE PEHCHAAN ACT, 2014 BROUGHT BY THE GOVERNMENT IS CONSTITUTIONAL
- A law which violates the fundamental right of a person is void.^42 Additionally, unconstitutionality might arise either because the law is in respect of a matter not within the
(^35) Partap Singh v. State of Punjab, AIR 1964 SC 72. (^36) Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740. (^37) Ram Jawaya v. State of Punjab, AIR 1955 SC 549. (^38) Id. , at 556. (^39) Naraindas v. State of Madhya Pradesh, AIR 1974 SC 1232. (^40) Moot Proposition, ¶12. (^41) State of Madhya Pradesh v. Bharat Singh, AIR 1967 SC 1170. (^42) Namit Sharma v. Union of India, (2013) 1 SCC 745.
