REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 494 OF 2012
JUSTICE K.S. PUTTASWAMY (RETD.)
AND ANOTHER …..PETITIONER(S)
VERSUS
UNION OF INDIA AND OTHERS …..RESPONDENT(S)
WITH
TRANSFERRED CASE (CIVIL) NO. 151 OF 2013
TRANSFERRED CASE (CIVIL) NO. 152 OF 2013
WRIT PETITION (CIVIL) NO. 833 OF 2013
WRIT PETITION (CIVIL) NO. 829 OF 2013
TRANSFERRED PETITION (CIVIL) NO. 1797 OF 2013
WRIT PETITION (CIVIL) NO. 932 OF 2013
TRANSFERRED PETITION (CIVIL) NO. 1796 OF 2013
CONTEMPT PETITION (CIVIL) NO. 144 OF 2014
IN
WRIT PETITION (CIVIL) NO. 494 OF 2012
TRANSFERRED PETITION (CIVIL) NO. 313 OF 2014
Signature Not Verified TRANSFERRED PETITION (CIVIL) NO. 312 OF 2014
Digitally signed by
CHETAN KUMAR
SPECIAL LEAVE PETITION (CRIMINAL) NO. 2524 OF 2014
Date: 2018.09.26
13:36:51 IST
Reason:
WRIT PETITION (CIVIL) NO. 37 OF 2015
Writ Petition (Civil) No. 494 of 2012 connected matters Page 1 of 567
WRIT PETITION (CIVIL) NO. 220 OF 2015
CONTEMPT PETITION (CIVIL) NO. 674 OF 2015
IN
WRIT PETITION (CIVIL) NO. 829 OF 2013
TRANSFERRED PETITION (CIVIL) NO. 921 OF 2015
CONTEMPT PETITION (CIVIL) NO. 470 OF 2015
IN
WRIT PETITION (CIVIL) NO. 494 OF 2012
WRIT PETITION (CIVIL) NO. 231 OF 2016
CONTEMPT PETITION (CIVIL) NO. 444 OF 2016
IN
WRIT PETITION (CIVIL) NO. 494 OF 2012
CONTEMPT PETITION (CIVIL) NO. 608 OF 2016
IN
WRIT PETITION (CIVIL) NO. 494 OF 2012
WRIT PETITION (CIVIL) NO. 797 OF 2016
CONTEMPT PETITION (CIVIL) NO. 844 OF 2017
IN
WRIT PETITION (CIVIL) NO. 494 OF 2012
WRIT PETITION (CIVIL) NO. 342 OF 2017
WRIT PETITION (CIVIL) NO. 372 OF 2017
WRIT PETITION (CIVIL) NO. 841 OF 2017
WRIT PETITION (CIVIL) NO. 1058 OF 2017
WRIT PETITION (CIVIL) NO. 966 OF 2017
WRIT PETITION (CIVIL) NO. 1014 OF 2017
WRIT PETITION (CIVIL) NO. 1002 OF 2017
Writ Petition (Civil) No. 494 of 2012 connected matters Page 2 of 567
WRIT PETITION (CIVIL) NO. 1056 OF 2017
AND
CONTEMPT PETITION (CIVIL) NO. 34 OF 2018
IN
WRIT PETITION (CIVIL) NO. 1014 OF 2017
JUDGMENT
A.K. SIKRI, J.
(For Chief Justice, himself and A.M. Khanwilkar, J.)
Introduction and Preliminaries:
It is better to be unique than the best. Because,
being the best makes you the number one, but
being unique makes you the only one.
2) ‘Unique makes you the only one’ is the central message of
Aadhaar, which is on the altar facing constitutional challenge in
these petitions. ‘Aadhaar’ which means, in English, ‘foundation’
or ‘base’, has become the most talked about expression in recent
years, not only in India but in many other countries and
international bodies. A word from Hindi dictionary has assumed
secondary significance. Today, mention of the word ‘Aadhaar’
would not lead a listener to the dictionary meaning of this word.
Instead, every person on the very mentioning of this word
‘Aadhaar’ would associate it with the card that is issued to a
Writ Petition (Civil) No. 494 of 2012 connected matters Page 3 of 567
person from where he/she can be identified. It is described as an
‘Unique Identity’ and the authority which enrols a person and at
whose behest the Aadhaar Card is issued is known as Unique
Identification Authority of India (hereinafter referred to as ‘UIDAI’
or ‘Authority’). It is described as unique for various reasons.
UIDAI claims that not only it is a foolproof method of identifying a
person, it is also an instrument whereby a person can enter into
any transaction without needing any other document in support.
It has become a symbol of digital economy and has enabled
multiple avenues for a common man. Aadhaar scheme, which
was conceptualised in the year 2006 and launched in the year
2009 with the creation of UIDAI, has secured the enrolment of
almost 1.1 billion people in this country. Its use is spreading like
wildfire, which is the result of robust and aggressive campaigning
done by the Government, governmental agencies and other such
bodies. In this way it has virtually become a household symbol.
The Government boasts of multiple benefits of Aadhaar.
3) At the same time, the very scheme of Aadhaar and the
architecture built thereupon has received scathing criticism from a
section of the society. According to them, Aadhaar is a serious
invasion into the right to privacy of persons and it has the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 4 of 567
tendency to lead to a surveillance state where each individual can
be kept under surveillance by creating his/her life profile and
movement as well on his/her use of Aadhaar. There has been no
other subject matter in recent past which has evoked the kind of
intensive and heated debate wherein both sides, for and against,
argue so passionately in support of their respective conviction.
The petitioners in these petitions belong to the latter category
who apprehend the totalitarian state if Aadhaar project is allowed
to continue. They are demanding scrapping and demolition of the
entire Aadhaar structure which, according to them, is anathema
to the democratic principles and rule of law, which is the bedrock
of the Indian Constitution. The petitioners have challenged the
Aadhaar project which took off by way of administrative action in
the year 2009. Even after Aadhaar got a shield of statutory cover,
challenge persists as the very enactment known as Aadhaar
(Targeted Delivery of Financial and Other Subsidies, Benefits and
Services) Act, 2016 (hereinafter referred to as the ‘Aadhaar Act’)
is challenged as constitutionally impermissible. The wide range
of issues involved in this case is evident from the fact that it took
almost four months for the parties to finish their arguments in
these cases, and the Court witnessed highly skilled, suave,
brilliant and intellectual advocacy, with the traces of passions as
Writ Petition (Civil) No. 494 of 2012 connected matters Page 5 of 567
well.
4) The issue has generated heated public debate as well. Even
outside the Court, there are groups advocating in favour of the
Aadhaar scheme and those who are stoutly opposing the same.
Interestingly, it is not only the commoners who belong to either of
the two groups but intelligentsia is also equally divided. There
have been number of articles, interviews for discourses in favour
of or against Aadhaar. Those in favour see Aadhaar project as
ushering the nation into a regime of good governance, advancing
socio-economic rights, economic prosperity etc. and in the
process they claim that it may make the nation a world leader.
Mr. K.K. Venugopal, learned Attorney General for India, referred
to the commendations by certain international bodies, including
the World Bank. We clarify that we have not been influenced by
such views expressed either in favour or against Aadhaar. Those
opposing Aadhaar are apprehensive that it may excessively
intrude into the privacy of citizenry and has the tendency to
create a totalitarian state, which would impinge upon the
democratic and constitutional values. Some such opinions of
various persons/bodies were referred to during the arguments.
Notwithstanding the passions, emotions, annoyance, despair,
Writ Petition (Civil) No. 494 of 2012 connected matters Page 6 of 567
ecstasy, euphoria, coupled with rhetoric, exhibited by both sides
in equal measure during the arguments, this Court while giving its
judgment on the issues involved is required to have a posture of
calmness coupled with objective examination of the issues on the
touchstone of the constitutional provisions.
5) Initiative in spearheading the attack on the Aadhaar structure was
taken by the petitioners, namely, Justice K.S. Puttaswamy (Retd.)
and Mr. Pravesh Khanna, by filing Writ Petition (Civil) No. 494 of
2012. At that time, Aadhaar scheme was not under legislative
umbrella. In the writ petition the scheme has primarily been
challenged on the ground that it violates fundamental rights of the
innumerable citizens of India, namely, right to privacy falling
under Article 21 of the Constitution of India. Few others joined
the race by filing connected petitions. Series of orders were
passed in this petition from time to time, some of which would be
referred to by us at the appropriate stage. In 2016, with the
passing of the Aadhaar Act, these very petitioners filed another
writ petition challenging the vires of the Act. Here again, some
more writ petitions have been filed with the same objective. All
these writ petitions were clubbed together. There are number of
interventions as well by various individuals, groups, NGOs, etc.,
some opposing the petitions and some supporting the Aadhaar
Writ Petition (Civil) No. 494 of 2012 connected matters Page 7 of 567
scheme.
6) Before we go into the premise on which the attack is laid on the
constitutional validity of the Aadhaar project and the Aadhaar Act,
it would be apposite to take note of the events in chronological
order that shaped the formulation, take off and implementation of
the Aadhaar scheme.
7) On March 03, 2006, approval was given by the Department of
Information Technology, Ministry of Communications and
Information Technology, Government of India for the project titled
‘Unique Identification for BPL Families’ to be implemented by the
National Informatics Centre (NIC) for over a period of twelve
months. As a result, a Processes Committee was set up on July
03, 2006 to suggest the process for updation, modification,
addition and deletion of data and fields from the core database to
be created under the Unique Identification for BPL Families
project. This Committee, on November 26, 2006, prepared a
paper known as ‘Strategic Vision Unique Identification of
Residents’. Based thereupon, the Empowered Group of
Ministers (EGoM) was set up on December 04, 2006, to collate
the National Population Register under the Citizenship Act, 1955
and the Unique Identification Number project of the Department
Writ Petition (Civil) No. 494 of 2012 connected matters Page 8 of 567
of Information Technology. The EGoM was also empowered to
look into the methodology and specific milestones for early and
effective completion of projects and to take a final view on these
projects. The EGoM was composed of the then Ministers of
External Affairs, Home Affairs, Law, Panchayati Raj and
Communications and Information Technology and the then
Deputy Chairman, Planning Commission.
8) Various meetings on the Unique Identification (hereinafter
referred to as ‘UID’) project were held from time to time. In the
fourth meeting held on December 22, 2006, various aspects of
proposed data elements and their formats were discussed.
Thereafter, in its fifth meeting held on April 27, 2007, it was
decided that the evolution of UID database would be in three
stages in principle. The Committee further decided that linkage
with major partner databases such as Household Survey of RD
and the individual State Public Distribution System (PDS)
databases should be taken up in a phased manner. On June 11,
2007, at the final stage of the project, a presentation on the UID
project was made to the then Prime Minister by the Cabinet
Secretary. The sixth meeting of the UID project was held on June
15, 2007. The Committee, inter alia, took the following decisions:
Writ Petition (Civil) No. 494 of 2012 connected matters Page 9 of 567
(i) The numbering format of 11 digits was approved.
(ii) The need for UID authority to be created by an executive
order under the aegis of the Planning Commission was
appreciated in order to ensure pan-departmental and neutral
identity for the authority.
(iii) The proposal for creation of Central and State UIDs was
approved.
(iv) Department of Information Technology (DIT) was directed
to work out modalities for linkage with Election Commission and
initiate discussions with MoRD and PDS for linkage.
(v) In principle, approval of proposed sequence for phasing
plan was granted.
9) In the seventh meeting held on August 30, 2007, the proposed
administrative framework and structure of UID authority and
manpower requirement, including financial implications, was
discussed. It was decided that a detailed proposal based on the
resource model be presented to the Committee for its ‘in
principle’ approval. At this stage, EGoM convened its first
meeting on November 27, 2007. At this meeting, a consensus
emerged on the following points:
(i) There is a clear need for creating an identity related
Writ Petition (Civil) No. 494 of 2012 connected matters Page 10 of 567
resident database, regardless of whether the database is created
on a de novo collection of data or is based on an already existing
data (such as the Election Commission’s Voter List).
(ii) Additionally, there is a critical need to create an institutional
mechanism that would ‘own’ the database and be responsible for
its maintenance and updating.
(iii) The next meeting is to consider topics relating to collating
the National Population Register (NPR) and UID schemes,
including methodology, effective implementation techniques,
identification of the institutional mechanism stated above, and the
time schedule for putting the scheme into operation.
A series of meetings took place thereafter to work out the
modalities of the programme. Certain issues were raised therein
and to address those issues, a Committee of Secretaries was
formed. The said Committee gave its recommendations which
were discussed by EGoM. After approving the Aadhaar Scheme
in principle, it instructed the Cabinet Secretary to convene a
meeting to finalise the detailed organisational structure of the
UID.
10) After considering the recommendation of the Cabinet Secretary,
Notification No. A-43011/02/2009-Admn.I was issued on January
Writ Petition (Civil) No. 494 of 2012 connected matters Page 11 of 567
28, 2009 by the Government of India which constituted and
notified the UIDAI as an attached office under the aegis of the
Planning Commission. Consequent to the constitution of UIDAI,
allocation of Rs.147.31 crores for Phase I of Aadhaar enrolments
was approved by the Finance Minister on the recommendation of
the Standing Committee on Finance. Demo-Official letter dated
February 25, 2009, was sent by the Secretary, Planning
Commission to all Chief Secretaries of 35 States/Union Territories
apprising them of their roles and responsibilities of the
States/Union Territories in implementation of UIDAI, such as
appointment of the State/UT UID Commissioners, logistics
support and coordination with various departments and State
units.
As they say, rest is history, which we recapitulate in brief
hereinafter.
11) A core group was set up to advice and further the work related to
UIDAI. Budgets were allocated to UIDAI to enable it to undertake
its task. Staff was also allocated to it. Meetings of the core group
took place from time to time. The core group, inter alia, decided
that it was better to start with the electoral roll database of 2009
for undertaking the UIDAI project. The status of digitisation of
Writ Petition (Civil) No. 494 of 2012 connected matters Page 12 of 567
PDS records, state-wise, was sought to be sent from the
Department of Food and Public Distribution to the Standing
Commission/UID. This and other steps taken in this direction
culminated in issuance of Notification dated July 02, 2009
whereby Mr. Nandan Nilekani was appointed as the Chairman of
UIDAI for an initial tenure of five years in the rank and status of a
Cabinet Minister. He assumed charge on July 24, 2009.
Thereafter, the Prime Minister’s Council of UIDAI was constituted
on July 30, 2009 which held its first meeting on August 12, 2009
where the Chairman of UIDAI made detailed representation on
the broad strategy and approach of the proposed UID project.
One of the proposals was to provide a legislative framework for
UID at the earliest so that it could have the legal sanction to
perform its function. Some other Committees like the Biometrics
Standard Committee, Demographic Data Standards and
Verification Procedure Committee were set up as a support
system to the project, which submitted their respective reports in
December 2009. Even a Cabinet Committee on UID was
constituted vide orders dated October 22, 2009 which was
headed by the Prime Minister with the aim to cover all issues
relating to UIDAI, including its organisation, policies,
programmes, schemes, funding and methodology to be adopted
Writ Petition (Civil) No. 494 of 2012 connected matters Page 13 of 567
for achieving its objectives.
12) The matter was addressed in the Seventeenth Finance
Commission Report also which was tabled in the Parliament on
February 25, 2010. In this report, the Finance Commission
suggested targeting of subsidies through UIDAI. By April 2010,
UIDAI came out with its Strategy Overview. This Overview
describes the features, benefits, revenue model and timelines of
the UIDAI project. Furthermore, it outlined the goal of the UID to
serve as a universal proof of identity, allowing residents to prove
their identities anywhere in the country. The project would give
the Government a clear view of India’s population, enabling it to
target and deliver services effectively, achieve greater returns on
social investments and monitor money and resource flows across
the country. It was felt that crucial to the achievement of this goal
is the active participation of the central, state and local
Governments as well as public and private sector entities. Only
with their support will the project be able to realise a larger vision
of inclusion and development in India.
13) A Cabinet Note bearing No. 4(4)/57/2010/CC-UIDAI for the
Cabinet Committee on UIDAI was submitted on May 12, 2010.
The Note outlined a brief background of UIDAI, proposed an
Writ Petition (Civil) No. 494 of 2012 connected matters Page 14 of 567
approach for collection of demographic and biometric attributes of
residents for the UID project and sought approval of the Cabinet
Committee for adoption of the aforesaid approach and suggested
that the same standards and processes be adhered to by the
Registrar General of India for the NPR exercise and all other
Registrars in the UID system. Rationale for inclusion of iris
biometrics was also submitted with the aforesaid Cabinet Note to
explain the need for capturing iris scans at the time of capturing
biometric details.
14) By September 2010 enrolment process of Aadhaar began with
the nationwide launch of the Aadhaar project. In December 2010,
UIDAI came out with a report on enrolment process known as
‘UID Enrolment Proof-of-Concept Report’ studying enrolment
proof-of-concept in three rural areas of Karnataka, Bihar and
Andhra Pradesh published by the UIDAI. According to this report,
‘the biometric matching analysis of 40,000 people showed that
the accuracy levels achieved by both iris and ten fingerprints
were more than an order of magnitude better compared to using
either of the two individually. The multi-modal enrolment was
adequate to carry out de-duplication on a much larger scale, with
reasonable expectations of extending it to all residents of India’.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 15 of 567
15) Going by the recommendation of the Chairman of UIDAI for
providing legislative framework to UIDAI, a Bill was introduced in
the Rajya Sabha on December 03, 2010 known as ‘National
Identification Authority of India Bill, 2010’.
16) Various other steps were taken to smoothen the process of
enrolment. There were studies from time to time on the
effectiveness of the enrolment process. Notifications/orders were
also issued by the Reserve Bank of India stating that an Aadhaar
letter would be recognised by Banks to open bank accounts for a
resident. Similar Orders/Notifications were issued by other
authorities as well. On the first anniversary of Aadhaar launch,
which fell on September 29, 2011, announcement was made that
10 crores enrolments and generation of more than 3.75 crores of
Aadhaar had taken place. Some of the reports submitted in due
course of time, which are relevant for our purposes, are taken
note of at this stage:
(i) Report of the Task Force on an Aadhaar-Enabled Unified
Payment Infrastructure for the direct transfer of subsidies on
Kerosene, LPG and Fertilizer.
(ii) In March 2012, Fingerprint Authentication Report was
submitted to UIDAI. This Report showcased the high accuracy
Writ Petition (Civil) No. 494 of 2012 connected matters Page 16 of 567
rates of using fingerprints to authenticate identities. The study
conducted in the rural setting representing typical demography of
the population established that it is technically possible to use
fingerprint to authenticate a resident in 98.13% of the population.
The accuracy of 96.5% can be achieved using one best finger
and 99.3% can be achieved using two fingers. Further
improvement is possible if the device specifications are tightened
to include only the best devices and certain mechanical guide is
used to aid proper placement of the finger. It was also
demonstrated through benchmarking that the authentication
infrastructure is able to sustain one million authentications per
hour.
(iii) Fifty Third Report of the Standing Committee on Finance on
the ‘Demands for Grants (2012-13)’ of the Ministry of Planning
was presented to the Lok Sabha and Rajya Sabha on April 24,
2012. This Report summarises the objectives and financial
implications of the UID scheme being implemented under the
aegis of the Planning Commission.
(iv) Iris Authentication Accuracy Report was submitted to UIDAI
on September 12, 2012. This Report based on an empirical
study of 5833 residents demonstrated iris authentication to be
viable in Indian context. With current level of device readiness for
Writ Petition (Civil) No. 494 of 2012 connected matters Page 17 of 567
iris capture, it is capable of providing coverage for 99.67% of
population with authentication accuracy of above 99.5%.
Suggestions made in this document for the vendors, once
implemented, will improve the rates further. The overall systems
– network and software – have shown to meet desired
requirements in real life condition. Finally, six different devices
with variety of form and function are available to provide
competitive vendor eco-system.
(v) Background Note on Introduction to Cash Transfers was
prepared by the National Committee on Direct Cash Transfers in
its first meeting on November 26, 2012. This Report outlines the
advantages of cash transfers in the Indian context stating that a
unique ID for all is a prerequisite for this purpose.
17) At this juncture, Writ Petition (Civil) No. 494 of 2012 was filed in
which show-cause notice dated November 30, 2012 was issued
by this Court. As pointed out above, this writ petition assailed
Aadhaar scheme primarily on the ground that it violates right to
privacy which is a facet of fundamental rights enshrined in Article
21 of the Constitution.
18) Counter affidavit thereto was filed by the Union of India as well as
UIDAI. The stand taken by the respondents, inter alia, was that
Writ Petition (Civil) No. 494 of 2012 connected matters Page 18 of 567
right to privacy is not a fundamental right, which was so held by
the eight Judge Bench judgment in M.P. Sharma and 4 Others v.
Satish Chandra Distt. Magistrate, Delhi and 4 Others 1. This is
notwithstanding the fact that thereafter in many judgments
rendered by this Court, right to privacy was accepted as a facet of
Article 21. Contention of the respondents, however, was that
those judgments were contrary to the dicta laid down in M.P.
Sharma and were, therefore, per in curium. The matter on this
aspect was heard by a three Judge Bench and after hearing the
parties, the Bench deemed it appropriate to make the reference
to the Constitution Bench. A five Judge Bench was constituted,
which after considering the matter, referred the same to a nine
Judge Bench to resolve the controversy in an authoritative
manner. The nine Judge Bench judgment has given an
unanimous answer to the Reference with conclusive,
unambiguous and emphatic determination that right to privacy is
a part of fundamental rights which can be traced to Articles 14, 19
and 21 of the Constitution of India.
19) We may also record at this stage that in this petition certain
interim orders were passed from time to time. We may give the
gist of some of the relevant orders:
1 1954 SCR 1077
Writ Petition (Civil) No. 494 of 2012 connected matters Page 19 of 567
(a) Order dated September 23, 2013 (two Judge Bench)
“All the matters require to be heard finally. List all matters
for final hearing after the Constitution Bench is over.
In the meanwhile, no person should suffer for not getting
the Aadhaar card in spite of the fact that some authority
had issued a circular making it mandatory and when any
person applies to get the Aadhaar card voluntarily, it may
be checked whether that person is entitled for it under the
law and it should not be given to any illegal immigrant.”
(b) Order dated November 26, 2013 (two Judge Bench)
“After hearing the matter at length, we are of the view that
all the States and Union Territories have to be impleaded
as respondents to give effective directions. In view thereof,
notice be issued to all the States and Union Territories
through standing counsel.
xx xx xx
Interim order to continue, in the meantime.”
(c) Order dated March 16, 2015 (three Judge Bench)
“In the meanwhile, it is brought to our notice that in certain
quarters, Aadhaar identification is being insisted upon by
the various authorities, we do not propose to go into the
specific instances.
Since Union of India is represented by learned Solicitor
General and all the States are represented through their
respective counsel, we expect that both the Union of India
and States and all their functionaries should adhere to the
order passed by this Court on 23rd September, 2013.”
(d) Order dated August 11, 2015 (three Judge Bench)
“Having considered the matter, we are of the view that the
balance of interest would be best served, till the matter is
finally decided by a larger Bench, if the Union of India or
the UIDAI proceed in the following manner:
Writ Petition (Civil) No. 494 of 2012 connected matters Page 20 of 567
1. The Union of India shall give wide publicity in the
electronic and print media including radio and television
networks that it is not mandatory for a citizen to obtain an
Aadhaar card.
2. The production of an Aadhaar card will not be condition
for obtaining any benefits otherwise due to a citizen.
3. The Unique Identification Number or the Aadhaar card
will not be used by the respondents for any purpose other
than the PDS Scheme and in particular for the purpose of
distribution of food grains, etc. and cooking fuel, such as
kerosene. The Aadhaar card may also be used for the
purpose of LPG Distribution Scheme.
4. The information about an individual obtained by the
Unique Identification Authority of India while issuing an
Aadhaar card shall not be used for any other purpose,
save as above, except as may be directed by a Court for
the purpose of criminal investigation.”
(d) Order dated October 15, 2015 (Constitution Bench)
“3. After hearing the learned Attorney General for India and
other learned senior counsels, we are of the view that in
paragraph 3 of the order dated 11.08.2015, if we add, apart
from the other two Schemes, namely, P.D.S. Scheme and
L.P.G. Distribution Scheme, the Schemes like The
Mahatma Gandhi National Social Assistance Programme
(Old Age Pensions, Widow Pensions, Disability Pensions),
Prime Minister’s Jan Dhan Yojana (PMJDY) and
Employees’ Provident Fund Organisation (EPFO) for the
present, it would not dilute earlier order passed by this
Court. Therefore, we now include the aforesaid Schemes
apart from the other two Schemes that this Court has
permitted in its earlier order dated 11.08.2015.
4. We impress upon the Union of India that it shall strictly
follow all the earlier orders passed by this Court
commencing from 23.09.2013.
5. We will also make it clear that the Aadhaar card scheme
is purely voluntary and it cannot be made mandatory till the
matter is finally decided by this Court one way or the other.”
Writ Petition (Civil) No. 494 of 2012 connected matters Page 21 of 567
(e) Order dated September 14, 2016 in WP (C) No. 686/2016
“Having regard to the facts and circumstances of the case,
the material evidence available on record and the
submissions made by learned senior counsel, we stay the
operation and implementation of letters dated 14.07.2006
(i.e. Annexure P-5, P-6, P-7) for Pre-Matric Scholarship
Scheme, Post-Matric Scholarship Scheme and Merit-cum-
Means Scholarship Scheme to the extent they have made
submission of Aadhaar mandatory and direct the Ministry of
Electronics and Information Technology, Government of
India, i.e. respondent No.2, to remove Aadhaar number as
a mandatory condition for student registration form at the
National Scholarship Portal of Ministry of Electronics and
Information Technology, Government of India at the
website…”
20) It is also relevant to point out that against an order passed by the
High Court of Bombay at Panaji, in some criminal proceedings,
wherein the Authority was directed to pass on biometric
information on a person, UIDAI had filed Special Leave Petition
(Criminal) No. 2524 of 2014 challenging the said order with the
submission that such a direction for giving biometric information
was contrary to the provisions of the Aadhaar Act and the
Authority was not supposed to give such an information, which
was confidential. In the said special leave petition, order dated
March 24, 2014 was passed staying the operation of the orders of
the Bombay High Court. This order reads as under:
“Issue notice.
In addition to normal mode of service, dasti service, is
permitted.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 22 of 567
Operation of the impugned order shall remain stayed.
In the meanwhile, the present petitioner is restrained from
transferring any biometric information of any person who
has been allotted the Aadhaar number to any other agency
without his consent in writing.
More so, no person shall be deprived of any service for
want of Aadhaar number in case he/she is otherwise
eligible/entitled. All the authorities are directed to modify
their forms/circulars/likes so as to not compulsorily require
the Aadhaar number in order to meet the requirement of
the interim order passed by this Court forthwith.
Tag and list the matter with main matter i.e. WP (C) No.
494 of 2012.”
21) Likewise, in Writ Petition (Civil) No. 1002 of 2017 titled Dr. Kalyan
Menon Sen v. Union of India and Others, where constitutional
validity of linking bank accounts and mobile phones with Aadhaar
linkage was challenged, interim order was passed on November
03, 2017 extending the last date of linking to December 31, 2017
and February 06, 2018 respectively. This order was extended
thereafter and continues to operate.
22) We would also like to refer to the order dated September 14,
2011 passed in People’s Union for Civil Liberties (PDS Matter) v.
Union of India Ors.2, wherein various directions were given to
ensure effective implementation of the PDS Scheme and in the
process to also undertake the exercise of eliminating the task and
2 (2011) 14 SCC 331
Writ Petition (Civil) No. 494 of 2012 connected matters Page 23 of 567
ghost ration cards. In the same manner, vide order dated March
16, 2012 it was noted that the Government had set up a task
force under the Chairmanship of Mr. Nandan Nilekani to
recommend, amongst others, an IT strategy for the PDS. Mr.
Nilekani was requested to suggest ways and means by which
computerization process of the PDS can be expedited.
Computerisation of PDS system was directed to be prepared and
in this hue the process of computerisation with Aadhaar
registration was also suggested.
In the same very case above, which also pertained to
providing night shelters to homeless destitute persons, some
orders were passed on February 10, 2010 3 as well as on
September 14, 20114.
23) Again, in the case of State of Kerala Ors. v. President, Parent
Teachers Association SNVUP School and Ors. 5, where the Court
was concerned with the problem of fake or bogus admissions, it
was felt that instead of involving the Police in schools to prevent
fake admissions, more appropriate method of verification would
be Unique Identification (UID) card as means of verification.
Architecture of the Aadhaar Project and the Aadhaar Act:
3 (2010) 5 SC 318
4 (2010) 13 SCC 45
5 (2013) 2 SCC 705
Writ Petition (Civil) No. 494 of 2012 connected matters Page 24 of 567
24) Before adverting to the discussion on various issues that have
been raised in these petitions, it would be apposite to first
understand the structure of the Aadhaar Act and how it operates,
having regard to various provisions contained therein. UIDAI was
established in the year 2009 by an administrative order i.e. by
resolution of the Govt. of India, Planning Commission, vide
notification dated January 28, 2009. The object of the
establishment of the said Authority was primarily to lay down
policies to implement the Unique Identification Scheme (for short
the ‘UIS’) of the Government, by which residents of India were to
be provided unique identity number. The aim was to serve this as
proof of identity, which is unique in nature, as each individual will
have only one identity with no chance of duplication. Another
objective was that this number could be used for identification of
beneficiaries for transfer of benefits, subsidies, services and other
purposes. This was the primary reason, viz. to ensure correct
identification of targeted beneficiaries for delivery of various
subsidies, benefits, services, grants, wages and other social
benefits schemes which are funded from the Consolidated Fund
of India. It was felt that the identification of real and genuine
beneficiaries had become a challenge for the Government. In the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 25 of 567
absence of a credible system to authenticate identity of
beneficiaries, it was becoming difficult to ensure that the
subsidies, benefits and services reach to intended beneficiaries.
As per the Government, failure to establish identity was proving
to be major hindrance for the successful implementation of the
welfare programmes and it was hitting hard the marginalised
section of the society and, in particular, women, children, senior
citizens, persons with disabilities, migrant unskilled and organised
workers, and nomadic tribes. After the establishment of the
Authority, vide the aforesaid notification, it started enrolling the
residents of this country under the UIS. These residents also
started using Aadhaar number allotted to them. It was found that
over a period of time, the use of Aadhaar number had increased
manifold. This necessitated ensuring security of the information
contained in Aadhaar number as well as the information that
generated as a result of the use of Aadhaar numbers. It was,
thus, felt desirable to back the system with a Parliamentary
enactment.
25) With this intention, the Aadhaar Bill was introduced with the
following Introduction:
“The Unique Identification Authority of India was
established by a resolution of the Government of India in
2009. It was meant primarily to lay down policies and to
Writ Petition (Civil) No. 494 of 2012 connected matters Page 26 of 567
implement the Unique Identification Scheme, by which
residents of India were to be provided unique identity
number. This number wold serve as proof of identity and
could be used for identification of beneficiaries for transfer
of benefits, subsidies, services and other purposes.
Later on, it was felt that the process of enrollment,
authentication, security, confidentiality and use of Aadhaar
related information be made statutory so as to facilitate the
use of Aadhaar number for delivery of various benefits,
subsidies and services, the expenditures of which were
incurred from or receipts therefrom formed part of the
Consolidated Fund of India.
The Aadhaar (Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) Bill, 2016 inter alia,
provides for establishment of Unique Identification Authority
of India, issuance of Aadhaar number to individuals,
maintenance and updating of information in the Central
Identities Data Repository, issues pertaining to security,
privacy and confidentiality of information as well as
offences and penalties for contravention of relevant
statutory provisions.”
26) After mentioning the reasons recorded above, Statement of
Objects and Reasons for introducing the Bill also highlight the
salient features thereof in the following manner:
“5. The Aadhaar (Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) Bill, 2016, inter alia,
seeks to provide for—
(a) issue of Aadhaar numbers to individuals on providing
his demographic and biometric information to the Unique
Identification Authority of India;
(b) requiring Aadhaar numbers for identifying an individual
for delivery of benefits, subsidies, and services the
expenditure is incurred from or the receipt therefrom forms
part of the Consolidated Fund of India;
Writ Petition (Civil) No. 494 of 2012 connected matters Page 27 of 567
(c) authentication of the Aadhaar number of an Aadhaar
number holder in relation to his demographic and biometric
information;
(d) establishment of the Unique Identification Authority of
India consisting of a Chairperson, two Members and a
Member-Secretary to perform functions in pursuance of the
objectives above;
(e) maintenance and updating the information of
individuals in the Central Identities Data Repository in such
manner as may be specified by regulations;
(f) measures pertaining to security, privacy and
confidentiality of information in possession or control of the
Authority including information stored in the Central
Identities Data Repository; and
(g) offences and penalties for contravention of relevant
statutory provisions.”
27) The Bill having been passed by the Legislature, received the
assent of the President on March 25, 2016 and, thus, became Act
(18 of 2016). Preamble to this Act again emphasises the aim and
objective which this Act seeks to achieve. It reads:
“An Act to provide for, as a good governance, efficient,
transparent, and targeted delivery of subsidies, benefits
and services, the expenditure for which is incurred from the
Consolidated Fund of India, to individuals residing in India
through assigning of unique identity numbers to such
individuals and for matters connected therewith or
incidental thereto”
28) Section 2 of the Act provides certain definitions. Some of the
definitions can be noted at this stage itself, while other relevant
definitions would be mentioned at the appropriate stage.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 28 of 567
“(a) “Aadhaar number” means an identification number
issued to an individual under sub-section (3) of Section 3;
(b) “Aadhaar number holder” means an individual who has
been issued an Aadhaar number under this Act;
(c) “authentication” means the process by which the
Aadhaar number along with demographic information or
biometric information of an individual is submitted to the
Central Identities Data Repository for its verification and
such Repository verifies the correctness, or the lack
thereof, on the basis of information available with it;
(d) “authentication record” means the record of the time of
authentication and identity of the requesting entity and the
response provided by the Authority thereto;
xx xx xx
(f) “benefit” means any advantage, gift, reward, relief, or
payment, in cash or kind, provided to an individual or a
group of individuals and includes such other benefits as
may be notified by the Central Government;
(g) “biometric information” means photograph, finger print,
Iris scan, or such other biological attributes of an individual
as may be specified by regulations;
(h) “Central Identities Data Repository” means a
centralised database in one or more locations containing
all Aadhaar numbers issued to Aadhaar number holders
along with the corresponding demographic information and
biometric information of such individuals and other
information related thereto;
xx xx xx
(j) “core biometric information” means finger print, Iris
scan, or such other biological attribute of an individual as
may be specified by regulations;
(k) “demographic information” includes information relating
to the name, date of birth, address and other relevant
information of an individual, as may be specified by
regulations for the purpose of issuing an Aadhaar number,
but shall not include race, religion, caste, tribe, ethnicity,
Writ Petition (Civil) No. 494 of 2012 connected matters Page 29 of 567
language, records of entitlement, income or medical
history;
(l) “enrolling agency” means an agency appointed by the
Authority or a Registrar, as the case may be, for collecting
demographic and biometric information of individuals under
this Act;
(m) “enrollment” means the process, as may be specified
by regulations, to collect demographic and biometric
information from individuals by the enrolling agencies for
the purpose of issuing Aadhaar numbers to such
individuals under this Act;
(n) “identity information” in respect of an individual,
includes his Aadhaar number, his biometric information and
his demographic information;
xx xx xx
(r) “records of entitlement” means records of benefits,
subsidies or services provided to, or availed by, any
individual under any programme;
xx xx xx
(u) “requesting entity” means an agency or person that
submits the Aadhaar number, and demographic information
or biometric information, of an individual to the Central
Identities Data Repository for authentication;
(v) “resident” means an individual who has resided in India
for a period or periods amounting in all to one hundred and
eighty-two days or more in the twelve months immediately
preceding the date of application for enrolment;
(w) “service” means any provision, facility, utility or any
other assistance provided in any form to an individual or a
group of individuals and includes such other services as
may be notified by the Central Government;
(x) “subsidy” means any form of aid, support, grant,
subvention, or appropriation, in cash or kind, to an
individual or a group of individuals and includes such other
subsidies as may be notified by the Central Government.”
Writ Petition (Civil) No. 494 of 2012 connected matters Page 30 of 567
29) Chapter II of the Act deals with enrolment. Section 3 in this
Chapter entitles every resident to obtain the Aadhaar number by
submitting his demographic information and biometric
information. As noted above, demographic information includes
information relating to the name, date of birth, address and ‘other
relevant information of an individual, as may be specified by
regulations for the purpose of issuing an Aadhaar number’.
Photograph, fingerprint, iris scan, ‘or such other biological
attribute of an individual as may be specified by regulations’ are
treated as biometric information. Sub-section (2) of Section 3
stipulates that the enrolling agency shall, at the time of enrolment,
inform the individual undergoing enrolment of the following details
in such manner as may be specified by regulations, namely:
(a) the manner in which the information shall be used;
(b) the nature of recipients with whom the information is
intended to be shared during authentication; and
(c) the existence of a right to access information, the procedure
for making requests for such access, and details of the person or
department in-charge to whom such requests can be made.
30) Section 4, inter alia, provides that Aadhaar number issued to an
individual shall not be reassigned to any individual. In this sense,
Writ Petition (Civil) No. 494 of 2012 connected matters Page 31 of 567
it makes an Aadhaar number given to a particular individual
‘unique’. Section 5 delineates special measures for issuance of
Aadhaar number to certain categories of persons and reads as
under:
“5. Special measures for issuance of Aadhaar number
to certain category of persons.— The Authority shall take
special measures to issue Aadhaar number to women,
children, senior citizens, persons with disability, unskilled
and unorganised workers, nomadic tribes or to such other
persons who do not have any permanent dwelling house
and such other categories of individuals as may be
specified by regulations.”
31) Section 6 enables the Authority to update demographic and
biometric information of the Aadhaar number holders from time to
time.
32) Chapter III deals with ‘authentication’, which has generated the
maximum debate in these proceedings. Section 7 falling under
this Chapter mandates that proof of Aadhaar number would be
necessary for receipt of certain subsidies, benefits and services
etc. meaning thereby for availing such subsidies, benefits and
services, it would be necessary for the intended beneficiary to
possess Aadhaar number. In case of an individual to whom no
Aadhaar number has been assigned, he/she would be required to
show that application for enrolment has been given. Where the
Aadhaar number is not assigned, proviso to Section 7 lays down
Writ Petition (Civil) No. 494 of 2012 connected matters Page 32 of 567
that the individual shall be offered alternate and viable means of
identification for delivery of subsidy, benefit or service. Section 8
deals with authentication of Aadhaar number and provides that on
submission of request by any requesting entity, the Authority shall
perform authentication of Aadhaar number. This authentication is
in relation to biometric information or demographic information of
an Aadhaar number holder. Before collecting identity information
for the purpose of authentication, the requesting entity is to obtain
consent of an individual and also to ensure that the identity
information of that individual is only used for submission to the
Central Identities Data Repository (CIDR) for authentication.
Sections 7 and 8 read as under:
“7. Proof of Aadhaar number necessary for receipt of
certain subsidies, benefits and services, etc.— The
Central Government or, as the case may be, the State
Government may, for the 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 Aadhaar number or in the
case of an individual to whom no Aadhaar number has
been assigned, such individual makes an application for
enrolment:
Provided that if an Aadhaar 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.
8. Authentication of Aadhaar number.— (1) The
Authority shall perform authentication of the Aadhaar
number of an Aadhaar number holder submitted by any
Writ Petition (Civil) No. 494 of 2012 connected matters Page 33 of 567
requesting entity, in relation to his biometric information or
demographic information, subject to such conditions and
on payment of such fees and in such manner as may be
specified by regulations.
(2) A requesting entity shall—
(a) unless otherwise provided in this Act, obtain the
consent of an individual before collecting his identity
information for the purposes of authentication in such
manner as may be specified by regulations; and
(b) ensure that the identity information of an individual is
only used for submission to the Central Identities Data
Repository for authentication.
(3) A requesting entity shall inform, in such manner as may
be specified by regulations, the individual submitting his
identity information for authentication, the following details
with respect to authentication, namely—
(a) the nature of information that may be shared upon
authentication;
(b) the uses to which the information received during
authentication may be put by the requesting entity; and
(c) alternatives to submission of identity information to the
requesting entity.
(4) The Authority shall respond to an authentication query
with a positive, negative or any other appropriate response
sharing such identity information excluding any core
biometric information.”
33) Under Section 10, the Authority is given power to engage one or
more entities to establish and maintain the CIDR and to perform
any other functions as may be specified by regulations.
34) Chapter IV deals with the Establishment of the Authority. As per
Section 11, the Central Government, by notification, shall
Writ Petition (Civil) No. 494 of 2012 connected matters Page 34 of 567
establish an Authority to be known as the Unique Identification
Authority of India. Notification dated July 12, 2016 was issued by
the Central Government establishing the Authority. Other
provisions in this Chapter deal with the composition of the
Authority, qualifications for appointment of the Chairperson and
Members of Authority; term of their office and their removal; and
restrictions on their employment after cessation of office. It also
provides for the functions of Chairperson as well as office of the
Chief Executive Officer (CEO) and his functions and the
meetings of the Authority etc. Powers and functions of the
Authority are stipulated in Section 23.
35) Chapter V talks of grants to the Authority by the Central
Government as well as accounts and audit and annual report of
the Authority.
36) Chapter VI deals with the important aspects pertaining to
‘protection of information’. Section 28 of the Aadhaar Act puts an
obligation on the Authority to ensure the security of identity
information and authentication records of individuals. Likewise,
Section 29 imposes certain restrictions on sharing information i.e.
core biometric information collected or created under the Act or
the identity information. The biometric information collected and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 35 of 567
stored in electronic form, in accordance with this Act and
regulations made thereunder, is treated as ‘electronic record’ and
‘sensitive personal data or information’ by virtue of Section 30 of
the Act. As these are very material and significant provisions of
the Act, the same are reproduced verbatim in their entirety:
“28. Security and confidentiality of information.— (1)
The Authority shall ensure the security of identity
information and authentication records of individuals.
(2) Subject to the provisions of this Act, the Authority shall
ensure confidentiality of identity information and
authentication records of individuals.
(3) The Authority shall take all necessary measures to
ensure that the information in the possession or control of
the Authority, including information stored in the Central
Identities Data Repository, is secured and protected
against access, use or disclosure not permitted under this
Act or regulations made thereunder, and against accidental
or intentional destruction, loss or damage.
(4) Without prejudice to sub-sections (1) and (2), the
Authority shall—
(a) adopt and implement appropriate technical and
organisational security measures;
(b) ensure that the agencies, consultants, advisors or
other persons appointed or engaged for performing any
function of the Authority under this Act, have in place
appropriate technical and organisational security measures
for the information; and
(c) ensure that the agreements or arrangements entered
into with such agencies, consultants, advisors or other
persons, impose obligations equivalent to those imposed
on the Authority under this Act, and require such agencies,
consultants, advisors and other persons to act only on
instructions from the Authority.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 36 of 567
29. Restriction on sharing information.— (1) No core
biometric information, collected or created under this Act,
shall be—
(a) shared with anyone for any reason whatsoever; or
(b) used for any purpose other than generation of Aadhaar
numbers and authentication under this Act.
(2) The identity information, other than core biometric
information, collected or created under this Act may be
shared only in accordance with the provisions of this Act
and in such manner as may be specified by regulations.
(3) No identity information available with a requesting
entity shall be—
(a) used for any purpose, other than that specified to the
individual at the time of submitting any identity information
for authentication; or
(b) disclosed further, except with the prior consent of the
individual to whom such information relates.
(4) No Aadhaar number or core biometric information
collected or created under this Act in respect of an Aadhaar
number holder shall be published, displayed or posted
publicly, except for the purposes as may be specified by
regulations.
30. Biometric information deemed to be sensitive
personal information.— The biometric information
collected and stored in electronic form, in accordance with
this Act and regulations made thereunder, shall be deemed
to be “electronic record” and “sensitive personal data or
information”, and the provisions contained in the
Information Technology Act, 2000 (21 of 2000) and the
rules made thereunder shall apply to such information, in
addition to, and to the extent not in derogation of the
provisions of this Act.
Explanation.—For the purposes of this section, the
expressions—
(a) “electronic form” shall have the same meaning as
assigned to it in clause (r) of sub-section (1) of Section 2 of
the Information Technology Act, 2000 (21 of 2000);
Writ Petition (Civil) No. 494 of 2012 connected matters Page 37 of 567
(b) “electronic record” shall have the same meaning as
assigned to it in clause (t) of sub-section (1) of Section 2 of
the Information Technology Act, 2000 (21 of 2000);
(c) “sensitive personal data or information” shall have the
same meaning as assigned to it in clause (iii) of the
Explanation to Section 43-A of the Information Technology
Act, 2000 (21 of 2000).”
37) Section 32 provides that the Authority shall maintain
authentication records in such manner and for such period as
may be specified by regulations and enables every Aadhaar
number holder to obtain his authentication record in such manner
as may be specified by regulations. This provision also puts an
embargo upon the Authority to collect, keep or maintain any
information about ‘purpose of authentication’. Section 33,
however, creates an exception to the provisions of Section 28(ii)
and (v) as well as Section 29(ii) by stipulating that the information
can be disclosed pursuant to an order of a court not inferior to
that of a District Judge. It also carves out another exception in
those cases where it becomes necessary to disclose the
information in the interest of national security in pursuance of a
direction of an officer not below the rank of Joint Secretary to the
Government of India specially authorised in this behalf by an
order of the Central Government.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 38 of 567
38) Sections 34 to 47 in Chapter VII of the Act enumerate various
kinds of offences and provide penalties for such offences. For
our purposes, relevant Section is Section 37 which makes act of
disclosing identity information as offence which is punishable with
imprisonment for a term which may extend to three years or with
a fine which may extend to ten thousand rupees. In the case of a
company, this fine can extend to one lakh rupees. Likewise,
Section 38 provides for penalty for unauthorised access to the
CIDR. Penalties for tampering with data in CIDR (Section 39)
and unauthorised use by requesting entity (Section 40) are also
stipulated.
Cognizance of offences under this Chapter can be taken by
a court only on a complaint made by the Authority or any officer or
person authorised by it.
39) Section 50 of the Act empowers the Central Government to issue
directions to the Authority in writing from time to time and the
Authority shall be bound to carry out such directions on questions
of policy. Section 53 empowers the Central Government to make
rules to carry out the provisions of the Act generally as well as the
specific matters enumerated in sub-section (2) thereof. Section
54 empowers the Authority to make regulations consistent with
the Act and Rules made thereunder, for carrying out the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 39 of 567
provisions of the Act and, in particular, the matters mentioned in
sub-section (2). Such Rules and Regulations are to be laid
before the Parliament, as provided in Section 55.
40) Section 57 provides that the Aadhaar Act would not prevent the
use of Aadhaar number for establishing the identity of an
individual for any purpose and reads as under:
“57. Act not to prevent use of Aadhaar number for
other purposes under law.— Nothing contained in this
Act shall prevent the use of Aadhaar number for
establishing the identity of an individual for any purpose,
whether by the State or any body corporate or person,
pursuant to any law, for the time being in force, or any
contract to this effect:
Provided that the use of Aadhaar number under this
section shall be subject to the procedure and obligations
under Section 8 and Chapter VI.”
41) If any difficulty arises in giving effect to the provisions of the Act,
the Central Government is empowered to make provisions to
remove those difficulties, provided that such provisions are not
inconsistent with the provisions of the Act. Section 59, which is
the last provision in the Act, is an attempt to save all the acts and
actions of the Central Government under Notification dated
January 28, 2009 vide which the Authority was established or the
Department of Electronics and Information Technology under the
Cabinet Secretariat Notification dated September 12, 2015. This
Writ Petition (Civil) No. 494 of 2012 connected matters Page 40 of 567
provision is couched in the following language:
“59. Savings.— Anything done or any action taken by the
Central Government under the Resolution of the
Government of India, Planning Commission bearing
Notification Number A-43011/02/2009-Admin. I, dated the
28th January, 2009, or by the Department of Electronics
and Information Technology under the Cabinet Secretariat
Notification bearing Notification Number S.O. 2492(E),
dated the 12th September, 2015, as the case may be, shall
be deemed to have been validly done or taken under this
Act.”
42) Regulations have been framed under the Act, namely, (1) The
Aadhaar (Enrolment and Update) Regulations, 2016; (2) The
Aadhaar (Authentication) Regulations, 2016; (3) The Aadhaar
(Data Security) Regulations, 2016; and (4) The Aadhaar (Sharing
of Information) Regulations, 2016. The relevant provisions in
these Regulations are reproduced below:
“The Aadhaar (Enrolment and Update) Regulations, 2016
4. Demographic information required for enrolment. —
(1) The following demographic information shall be
collected from all individuals undergoing enrolment (other
than children below five years of age):
(i) Name;
(ii) Date of Birth;
(iii) Gender;
(iv) Residential Address.
(2) The following demographic information may also
additionally be collected during enrolment, at the option of
the individual undergoing enrolment:
(i) Mobile number
(ii) Email address
(3) In case of Introducer-based enrolment, the following
additional information shall be collected:
(i) Introducer name;
Writ Petition (Civil) No. 494 of 2012 connected matters Page 41 of 567
(ii)Introducer’s Aadhaar number.
(4) In case of Head of Family based enrolment, the
following additional information shall be collected:
(i) Name of Head of Family;
(ii) Relationship;
(iii) Head of Family’s Aadhaar number;
(iv) One modality of biometric information of the Head of
Family.
(5) The standards of the above demographic information
shall be as may be specified by the Authority for this
purpose.
(6) The demographic information shall not include race,
religion, caste, tribe, ethnicity, language, record of
entitlement, income or medical history of the resident.
The Aadhaar (Authentication) Regulations, 2016
3. Types of Authentication.— There shall be two types of
authentication facilities provided by the Authority, namely—
(i) Yes/No authentication facility, which may be carried out
using any of the modes specified in regulation 4(2); and
(ii) e-KYC authentication facility, which may be carried out
only using OTP and/ or biometric authentication modes as
specified in regulation 4(2).
4. Modes of Authentication. — (1) An authentication
request shall be entertained by the Authority only upon a
request sent by a requesting entity electronically in
accordance with these regulations and conforming to the
specifications laid down by the Authority.
(2) Authentication may be carried out through the following
modes:
(a) Demographic authentication: The Aadhaar number and
demographic information of the Aadhaar number holder
obtained from the Aadhaar number holder is matched with
the demographic information of the Aadhaar number holder
in the CIDR.
(b) One-time pin based authentication: A One Time Pin
(OTP), with limited time validity, is sent to the mobile
Writ Petition (Civil) No. 494 of 2012 connected matters Page 42 of 567
number and/ or e-mail address of the Aadhaar number
holder registered with the Authority, or generated by other
appropriate means. The Aadhaar number holder shall
provide this OTP along with his Aadhaar number during
authentication and the same shall be matched with the
OTP generated by the Authority.
(c) Biometric-based authentication: The Aadhaar number
and biometric information submitted by an Aadhaar number
holder are matched with the biometric information of the
said Aadhaar number holder stored in the CIDR. This may
be fingerprints-based or iris-based authentication or other
biometric modalities based on biometric information stored
in the CIDR.
(d) Multi-factor authentication: A combination of two or
more of the above modes may be used for authentication.
(3) A requesting entity may choose suitable mode(s) of
authentication from the modes specified in sub-regulation
(2) for a particular service or business function as per its
requirement, including multiple factor authentication for
enhancing security. For the avoidance of doubt, it is
clarified that e-KYC authentication shall only be carried out
using OTP and/ or biometric authentication.
xx xx xx
7. Capturing of biometric information by requesting
entity.— (1) A requesting entity shall capture the biometric
information of the Aadhaar number holder using certified
biometric devices as per the processes and specifications
laid down by the Authority.
(2) A requesting entity shall necessarily encrypt and secure
the biometric data at the time of capture as per the
specifications laid down by the Authority.
(3) For optimum results in capturing of biometric
information, a requesting entity shall adopt the processes
as may be specified by the Authority from time to time for
this purpose.
xx xx xx
9. Process of sending authentication requests.— (1)
After collecting the Aadhaar number or any other identifier
Writ Petition (Civil) No. 494 of 2012 connected matters Page 43 of 567
provided by the requesting entity which is mapped to
Aadhaar number and necessary demographic and / or
biometric information and/ or OTP from the Aadhaar
number holder, the client application shall immediately
package and encrypt these input parameters into PID block
before any transmission, as per the specifications laid
down by the Authority, and shall send it to server of the
requesting entity using secure protocols as may be laid
down by the Authority for this purpose.
(2) After validation, the server of a requesting entity shall
pass the authentication request to the CIDR, through the
server of the Authentication Service Agency as per the
specifications laid down by the Authority. The
authentication request shall be digitally signed by the
requesting entity and/or by the Authentication Service
Agency, as per the mutual agreement between them.
(3) Based on the mode of authentication request, the CIDR
shall validate the input parameters against the data stored
therein and return a digitally signed Yes or No
authentication response, or a digitally signed e-KYC
authentication response with encrypted e-KYC data, as the
case may be, along with other technical details related to
the authentication transaction.
(4) In all modes of authentication, the Aadhaar number is
mandatory and is submitted along with the input
parameters specified in sub-regulation (1) above such that
authentication is always reduced to a 1:1 match.
(5) A requesting entity shall ensure that encryption of PID
Block takes place at the time of capture on the
authentication device as per the processes and
specifications laid down by the Authority.
xx xx xx
18. Maintenance of logs by requesting entity. — (1) A
requesting entity shall maintain logs of the authentication
transactions processed by it, containing the following
transaction details, namely:—
(a) the Aadhaar number against which authentication is
sought;
(b) specified parameters of authentication request
submitted;
Writ Petition (Civil) No. 494 of 2012 connected matters Page 44 of 567
(c) specified parameters received as authentication
response;
(d) the record of disclosure of information to the Aadhaar
number holder at the time of authentication; and
(e) record of consent of the Aadhaar number holder for
authentication, but shall not, in any event, retain the PID
information.
(2) The logs of authentication transactions shall be
maintained by the requesting entity for a period of 2 (two)
years, during which period an Aadhaar number holder shall
have the right to access such logs, in accordance with the
procedure as may be specified.
(3) Upon expiry of the period specified in sub-regulation
(2), the logs shall be archived for a period of five years or
the number of years as required by the laws or regulations
governing the entity, whichever is later, and upon expiry of
the said period, the logs shall be deleted except those
records required to be retained by a court or required to be
retained for any pending disputes.
(4) The requesting entity shall not share the authentication
logs with any person other than the concerned Aadhaar
number holder upon his request or for grievance redressal
and resolution of disputes or with the Authority for audit
purposes. The authentication logs shall not be used for any
purpose other than stated in this sub-regulation.
(5) The requesting entity shall comply with all relevant
laws, rules and regulations, including, but not limited to, the
Information Technology Act, 2000 and the Evidence Act,
1872, for the storage of logs.
(6) The obligations relating to authentication logs as
specified in this regulation shall continue to remain in force
despite termination of appointment in accordance with
these regulations.
xx xx xx
26. Storage and Maintenance of Authentication
Transaction Data. — (1) The Authority shall store and
maintain authentication transaction data, which shall
contain the following information:—
(a) authentication request data received including PID
block;
Writ Petition (Civil) No. 494 of 2012 connected matters Page 45 of 567
(b) authentication response data sent;
(c) meta data related to the transaction;
(d) any authentication server side configurations as
necessary Provided that the Authority shall not, in any
case, store the purpose of authentication.
The Aadhaar (Data Security) Regulations, 2016
3. Measures for ensuring information security. — (1)
The Authority may specify an information security policy
setting out inter alia the technical and organisational
measures to be adopted by the Authority and its personnel,
and also security measures to be adopted by agencies,
advisors, consultants and other service providers engaged
by the Authority, registrar, enrolling agency, requesting
entities, and Authentication Service Agencies.
(2) Such information security policy may provide for:—
(a) identifying and maintaining an inventory of assets
associated with the information and information processing
facilities;
(b) implementing controls to prevent and detect any loss,
damage, theft or compromise of the assets;
(c) allowing only controlled access to confidential
information;
(d) implementing controls to detect and protect against
virus/malwares;
(e) a change management process to ensure information
security is maintained during changes;
(f) a patch management process to protect information
systems from vulnerabilities and security risks;
(g) a robust monitoring process to identify unusual events
and patterns that could impact security and performance of
information systems and a proper reporting and mitigation
process;
(h) encryption of data packets containing biometrics, and
enabling decryption only in secured locations;
(i) partitioning of CIDR network into zones based on risk
and trust;
(j) deploying necessary technical controls for protecting
CIDR network;
(k) service continuity in case of a disaster;
(l) monitoring of equipment, systems and networks;
(m) measures for fraud prevention and effective remedies
in case of fraud;
(n) requirement of entering into non-disclosure agreements
with the personnel;
Writ Petition (Civil) No. 494 of 2012 connected matters Page 46 of 567
(o) provisions for audit of internal systems and networks;
(p) restrictions on personnel relating to processes, systems
and networks.
(q) inclusion of security and confidentiality obligations in the
agreements or arrangements with the agencies,
consultants, advisors or other persons engaged by the
Authority.
(3) The Authority shall monitor compliance with the
information security policy and other security requirements
through internal audits or through independent agencies.
(4) The Authority shall designate an officer as Chief
Information Security Officer for disseminating and
monitoring the information security policy and other
security-related programmes and initiatives of the Authority.
xx xx xx
5. Security obligations of service providers, etc. — The
agencies, consultants, advisors and other service providers
engaged by the Authority for discharging any function
relating to its processes shall:
(a) ensure compliance with the information security policy
specified by the Authority;
(b) periodically report compliance with the information
security policy and contractual requirements, as required
by the Authority;
(c) report promptly to the Authority any security incidents
affecting the confidentiality, integrity and availability of
information related to the Authority’s functions;
(d) ensure that records related to the Authority shall be
protected from loss, destruction, falsification, unauthorised
access and unauthorised release;
(e) ensure confidentiality obligations are maintained during
the term and on termination of the agreement;
(f) ensure that appropriate security and confidentiality
obligations are provided for in their agreements with their
employees and staff members;
(g) ensure that the employees having physical access to
CIDR data centers and logical access to CIDR data centers
undergo necessary background checks;
(h) define the security perimeters holding sensitive
information, and ensure only authorised individuals are
allowed access to such areas to prevent any data leakage
or misuse; and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 47 of 567
(i) where they are involved in the handling of the biometric
data, ensure that they use only those biometric devices
which are certified by a certification body as identified by
the Authority and ensure that appropriate systems are built
to ensure security of the biometric data.
The Aadhaar (Sharing of Information) Regulations, 2016.
3. Sharing of information by the Authority. — (1) Core
biometric information collected by the Authority under the
Act shall not be shared with anyone for any reason
whatsoever.
(2) The demographic information and photograph of an
individual collected by the Authority under the Act may be
shared by the Authority with a requesting entity in response
to an authentication request for e-KYC data pertaining to
such individual, upon the requesting entity obtaining
consent from the Aadhaar number holder for the
authentication process, in accordance with the provisions
of the Act and the Aadhaar (Authentication) Regulations,
2016.
(3) The Authority shall share authentication records of the
Aadhaar number holder with him in accordance with
regulation 28 of the Aadhaar (Authentication) Regulations,
2016.
(4) The Authority may share demographic information and
photograph, and the authentication records of an Aadhaar
number holder when required to do so in accordance with
Section 33 of the Act.
xx xx xx
6. Restrictions on sharing, circulating or publishing of
Aadhaar number. — (1) The Aadhaar number of an
individual shall not be published, displayed or posted
publicly by any person or entity or agency.
(2) Any individual, entity or agency, which is in possession
of Aadhaar number(s) of Aadhaar number holders, shall
ensure security and confidentiality of the Aadhaar numbers
and of any record or database containing the Aadhaar
numbers.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 48 of 567
(3) Without prejudice to sub-regulations (1) and (2), no
entity, including a requesting entity, which is in possession
of the Aadhaar number of an Aadhaar number holder, shall
make public any database or record containing the
Aadhaar numbers of individuals, unless the Aadhaar
numbers have been redacted or blacked out through
appropriate means, both in print and electronic form.
(4) No entity, including a requesting entity, shall require an
individual to transmit his Aadhaar number over the Internet
unless such transmission is secure and the Aadhaar
number is transmitted in encrypted form except where
transmission is required for correction of errors or redressal
of grievances.
(5) No entity, including a requesting entity, shall retain
Aadhaar numbers or any document or database containing
Aadhaar numbers for longer than is necessary for the
purpose specified to the Aadhaar number holder at the
time of obtaining consent.”
43) To sum up broadly, the Authority is established under the Act as a
statutory body which is given the task of developing the policy,
procedure and system for issuing Aadhaar numbers to individuals
and also to perform authentication thereof as per the provisions
of the Act. For the purpose of enrolment and assigning Aadhaar
numbers, enrolling agencies are recruited by the Authority. All the
residents in India are eligible to obtain an Aadhaar number. To
enable a resident to get Aadhaar number, he is required to submit
demographic as well as biometric information i.e., apart from
giving information relating to name, date of birth and address,
biometric information in the form of photograph, fingerprint, iris
scan is also to be provided. Aadhaar number given to a particular
Writ Petition (Civil) No. 494 of 2012 connected matters Page 49 of 567
person is treated as unique number as it cannot be reassigned to
any other individual.
Insofar as subsidies, benefits or services to be given by the
Central Government or the State Government, as the case may
be, is concerned, these Governments can mandate that receipt of
these subsidies, benefits and services would be given only on
furnishing proof of possession of Aadhaar number (or proof of
making an application for enrolment, where Aadhaar number is
not assigned). An added requirement is that such individual
would undergo authentication at the time of receiving such
benefits etc. A particular institution/body from which the aforesaid
subsidy, benefit or service is to be claimed by such an individual,
the intended recipient would submit his Aadhaar number and is
also required to give her biometric information to that agency. On
receiving this information and for the purpose of its
authentication, the said agency, known as Requesting Entity,
would send the request to the Authority which shall perform the
job of authentication of Aadhaar number. On confirming the
identity of a person, the individual is entitled to receive subsidy,
benefit or service. Aadhaar number is permitted to be used by
the holder for other purposes as well.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 50 of 567
44) In this whole process, any resident seeking to obtain an Aadhaar
number is, in the first instance, required to submit her
demographic information and biometric information at the time of
enrolment. She, thus, parts with her photograph, fingerprint and
iris scan at that stage by giving the same to the enrolling agency,
which may be a private body/person. Likewise, every time when
such Aadhaar holder intends to receive a subsidy, benefit or
service and goes to specified/designated agency or person for
that purpose, she would be giving her biometric information to
that requesting entity, which, in turn, shall get the same
authenticated from the Authority before providing a subsidy,
benefit or service. Whenever request is received for
authentication by the Authority, record of such a request is kept
and stored in the CIDR. At the same time, provisions for
protection of such information/data have been made, as indicated
above. Aadhaar number can also be used for purposes other
than stated in the Act i.e. purposes other than provided under
Section 7 of the Act, as mentioned in Section 57 of the Act, which
permit the State or any body corporate or person, pursuant to any
law, for the time being in force, or any contract to this effect, to
use the Aadhaar number for establishing the identity of an
individual. It can be used as a proof of identity, like other identity
Writ Petition (Civil) No. 494 of 2012 connected matters Page 51 of 567
proofs such as PAN card, ration card, driving licence, passport
etc.
45) Piercing into the aforesaid Aadhaar programme and its
formation/structure under the Aadhaar Act, foundational
arguments are that it is a grave risk to the rights and liberties of
the citizens of this country which are secured by the Constitution
of India. It militates against the constitutional abiding values and
its foundational morality and has the potential to enable an
intrusive state to become a surveillance state on the basis of
information that is collected in respect of each individual by
creation of a joint electronic mesh. In this manner, the Act strikes
at the very privacy of each individual thereby offending the right
to privacy which is elevated and given the status of fundamental
right by tracing it to Articles 14, 19 and 21 of the Constitution of
India by a nine Judge Bench judgment of this Court in K.S.
Puttaswamy Anr. v. Union of India Ors.6. Most of the counsel
appearing for different petitioners (though not all) conceded that
there cannot be a serious dispute insofar as allotment of Aadhaar
number, for the purpose of unique identification of the residents,
is concerned. However, apprehensions have been expressed
about the manner in which the Scheme has been rolled out and
6 (2017) 10 SCC 1
Writ Petition (Civil) No. 494 of 2012 connected matters Page 52 of 567
implemented. The entire edifice of the aforesaid projection is
based on the premise that it forces a person, who intends to enrol
for Aadhaar, to part with his core information namely biometric
information in the form of fingerprints and iris scan. These are to
be given to the enrolment agency in the first instance which is a
private body and, thus, there is risk of misuse of this vital
information pertaining to an individual. Further, it is argued that
the most delicate and fragile part, susceptible to misuse, is the
authentication process which is to be carried out each time the
holder of Aadhaar number wants to establish her identity. At that
stage, not only the individual parts with the biometric information
again with the RE (which may again be a private agency as well),
the purpose for which such a person approaches the RE would
also be known i.e. the nature of transaction which is supposed to
be undertaken by the said person at that time. Such information
relating to different transactions of a person across the life of the
citizen is connected to a central database. This record may
enable the State to profile citizens, track their movements, assess
their habits and silently influence their behaviour. Over a period
of time, the profiling would enable the State to stifle dissent and
influence political decision making. It may also enable the State
to act as a surveillant state and there is a propensity for it to
Writ Petition (Civil) No. 494 of 2012 connected matters Page 53 of 567
become a totalitarian state. It is stressed that at its core, Aadhaar
alters the relationship between the citizen and the State. It
diminishes the status of the citizen. Rights freely exercised,
liberties freely enjoyed, entitlements granted by the Constitution
and laws are all made conditional, on a compulsory barter. The
barter compels the citizen to give up her biometrics ‘voluntarily’,
allow her biometrics and demographic information to be stored by
the State and private operators and then used for a process
termed ‘authentication’.
To put it in nutshell, provisions of the Aadhaar Act are
perceived by the petitioners as giving away of vital information
about the residents to the State not only in the form of biometrics
but also about the movement as well as varied kinds of
transactions which a resident would enter into from time to time.
The threat is in the form of profiling the citizens by the State on
the one hand and also misuse thereof by private agencies
whether it is enrolling agency or requesting agency or even
private bodies mentioned in Section 57 of the Act. In essence, it
is stated that not only data of aforesaid nature is stored by the
CIDR, which has the threat of being leaked, it can also be
misused by non-State actors. In other words, it is sought to be
highlighted that there is no assurance of any data protection at
Writ Petition (Civil) No. 494 of 2012 connected matters Page 54 of 567
any level.
46) The respondents, on the other hand, have attempted to shake the
very foundation of the aforesaid structure of the petitioners’ case.
They argue that in the first instance, minimal biometric
information of the applicant, who intends to have Aadhaar
number, is obtained which is also stored in CIDR for the purpose
of authentication. Secondly, no other information is stored. It is
emphasised that there is no data collection in respect of religion,
caste, tribe, language records of entitlement, income or medical
history of the applicant at the time of Aadhaar enrolment. Thirdly,
the Authority also claimed that the entire Aadhaar enrolment eco-
system is foolproof inasmuch as within few seconds of the
biometrics having been collected by the enrolling agency, the said
information gets transmitted the Authorities/CIDR, that too in an
encrypted form, and goes out of the reach of the enrolling
agency. Same is the situation at the time of authentication as
biometric information does not remain with the requesting
agency. Fourthly, while undertaking the authentication process,
the Authority simply matches the biometrics and no other
information is received or stored in respect of purpose, location or
nature or transaction etc. Therefore, the question of profiling does
Writ Petition (Civil) No. 494 of 2012 connected matters Page 55 of 567
not arise at all. A powerpoint presentation was given by Dr. Ajay
Bhushan Pandey, CEO of the Authority, in the Court, while
explaining various nuances of the whole process. In this
presentation, the enrolment process has been projected in the
following manner:
47) Insofar as Aadhaar authentication service is concerned, it was
explained that the same is e-KYC wherein following process is
involved:
Writ Petition (Civil) No. 494 of 2012 connected matters Page 56 of 567
48) It was asserted with all vehemence that while doing the aforesaid
authentication, no other information is collected or stored by the
Authority/CIDR, specifically pointing that:
(a) The Authority does not collect purpose, location or details of
transaction. Thus, it is purpose blind.
(b) The information collected as aforesaid remains in silos.
(c) Merging of silos is prohibited.
(d) The RE is provided answer only in Yes or No about the
authentication of the person concerned.
(e) The authentication process is not exposed to the internet
world.
(f) Security measures as per the provisions of Section 29(3)
read with Section 38(g) as well as Regulation 17(1)(d) of the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 57 of 567
Authentication Regulations are strictly followed and adhere to.
The Aadhaar Authentication Security has been described in
the following manner:
49) In this hue, the Authority has projected that the Aadhaar design
takes full care of privacy and security of the persons. It is sought
to be demonstrated by pointing out the following features:
(i) Privacy is ensured by the very design of Aadhaar which was
conceived by the Authority from very inception and is now even
incarnated in the Aadhaar Act because : (a) it is backed by
minimal data, federated databases, optimal ignorance; and (b)
there is no transaction/pooling data coupled with the fact that
resident authorised access to identity data is available.
(ii) Aadhaar is designed for inclusion inasmuch as : (a) there is
flexibility of demographic data, multi-modal biometrics, and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 58 of 567
flexible processes; (b) DDSVP Committee by Dr. V.N. Vittal,
former CVC; and (c) Biometric design and Standards Committee
by Dr. Gairola, Former DG, NIC.
(iii) All security numbers are followed which can be seen from:
(a) PKI-2048 encryption from the time of capture, (b) adoption of
best-in-class security standards and practices, and (c) strong
audit and traceability as well as fraud detection.
50) It was explained that the security and data privacy is ensured in
the following way:
(i) The data sent to ABIS is completely anonymised. The ABIS
systems do not have access to resident’s demographic
information as they are only sent biometric information of a
resident with a reference number and asked to de-duplicate. The
de-duplication result with the reference number is mapped back
to the correct enrolment number by the Authorities own enrolment
server.
(ii) The ABIS providers only provide their software and
services. The data is stored in UIDAI storage and it never leaves
the secure premises.
(iii) The ABIS providers do not store the biometric images
(source). They only store template for the purpose of de-
Writ Petition (Civil) No. 494 of 2012 connected matters Page 59 of 567
duplication (with reference number).
(iv) The encrypted enrolment packet sent by the enrolment
client software to the CIDR is decrypted by the enrolment server
but the decrypted packet is never stored.
(v) The original biometric images of fingerprints, iris and face
are archived and stored offline. Hence, they cannot be accessed
through an online network.
(vi) The biometric system provides high accuracy of over
99.86%. The mixed biometric have been adopted only t enhance
the accuracy and to reduce the errors which may arise on
account of some residents either not having biometrics or not
having some particular biometric.
51) Above all, there is an oversight by Technology and Architecture
Review Board (TARB) and Security Review Committee. This
Board and Committee consists of very high profiled officers. The
aforesaid security measures are shown by the Authority in the
following manner:
Writ Petition (Civil) No. 494 of 2012 connected matters Page 60 of 567
Writ Petition (Civil) No. 494 of 2012 connected matters Page 61 of 567
52) We may point out at this stage that to the powerpoint
presentation by Dr. Pandey on the aforesaid lines, certain
questions were put to him by Mr. Shyam Divan as well as Mr.
Vishwanathan, senior advocates, and the answers thereto were
given by Dr. Pandey. In order to have the complete picture, we
will be well advised to reproduce these questions and their
answers as well, which are as follows:
53) Questions and Answers to the queries raised by the petitioners in
W.P. (C) No. 1056 of 2017 entitled ‘Nachiket Udupa Anr. v.
Union of India
(1) What are the figures for authentication failures, both at the
national and state level? Please provide a breakup, between
fingerprints and iris.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 62 of 567
Ans.: UIDAI cannot provide authentication failure rates at the
state level since it does not track the location of the authentication
transactions. Authentication failure rate at national level is as
below:
Modality Unique UID Failed Unique ID Failed Percentage
Participated
IRIS 1,08,50,391 9,27,132 8.54%
FINGER 61,63,63,346 3,69,62,619 6.00%It must be stated that authentication failures do not mean
exclusion or denial from subsidies, benefits or services since the
requesting entities are obliged under the law to provide for
exception handling mechanisms.
(2) In case a person who is claiming a biometric exception (e.g.
a person suffering from leprosy) does not have a mobile phone
number, or has not given it in the enrolment form, or if the phone
number changes – how will her Aadhaar enrolment and
subsequent authentication occur and under which provision of
law?
Ans.: Aadhaar enrolment is done for all residents, even of
residents with leprosy. Biometric exception process is defined in
the UIDAI resident enrolment process. In the case of a leprosy
patient, who may not be able to do fingerprint authentication, iris
Writ Petition (Civil) No. 494 of 2012 connected matters Page 63 of 567
authentication can be used for update (and add the mobile
number). This was the reason for multi-modal enrolment and
authentication being selected for use in Aadhaar.
Only in an unlikely scenario where both iris and fingerprint
cannot be used for authentication, the mobile number is one of
the methods for authentication. In cases where authentication
through mobile number is not possible or feasible, the requesting
entities have to provide their own exception and backup
mechanism to ensure services to Aadhaar holders. As part of the
exception handling mechanism, UIDAI has already implemented
a digitally signed QR code into e-Aadhaar which allows agencies
to verify the Aadhaar card in an off-line manner and trust the data
(based on digital signature validation) without accessing e-KYC
API service of UIDAI. This is a simple off-line mechanism to
quickly verify the legitimacy of the Aadhaar card. But, it does not
ensure that the person holding the card is the owner of that
Aadhaar number. It needs either manual check of photo against
the face of the individual (like the way ID is verified at the entry of
airports) or some form of electronic authentication using Aadhaar
authentication API or agency specific authentication scheme. QR
code based verification allows Aadhaar number holders to use
their ID on a day-to-day purpose without using online e-KYC
Writ Petition (Civil) No. 494 of 2012 connected matters Page 64 of 567
authentication. The verification through offline QR code can be
used for those purposes or cases where proof of presence or
proof of ownership of card is not required.
The Aadhaar Act and Aadhaar (Enrolment and Update)
Regulations, 2016 define special provision for enrolment of
residents with biometric exception. Further, as per Regulation
14(i) of the Authentication Regulations, RE shall implement
exception-handling mechanisms and backup identity
authentication mechanisms to ensure seamless provision of
authentication services to Aadhaar number holders. Accordingly,
DBT Mission Cabinet Secretariat has issued a detailed circular
dated December 19, 2017 regarding exception handling during
use of Aadhaar in the benefit schemes of the Government.
(3) Are there any surprise checks, field studies done to check
the authenticity of the exemption registers?
Ans.: As per Regulation 14(i) of the Authentication Regulations,
this exception handling mechanism is to be implemented and
monitored by the requesting entities and in case of the
Government, their respective Ministries. Further, the DBT
Mission Cabinet Secretariat had issued Circular dated December
19, 2017 on exception handling and audit of exceptions.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 65 of 567
(4) Between the ages of 5-15 years, can a school, as an
‘introducer’, enrol a child without parental consent?
Ans.: School officials, if permitted to act as ‘introducer’, can enrol
only when there is a parental consent to enrol. The disclosure
requirement as per Section 3(2) of the Aadhaar Act and the
Aadhaar (Enrolment and Update) Regulations, 2016 (Schedule-I)
is implemented through the enrolment form which is signed by the
resident making it informed disclosure. In case of children, the
consent form will be signed by the parent/guardian.
(5) Once a child attains the age of 18 years, is there any way
for them to opt out or revoke consent?
Ans.: It is not permissible under the Aadhaar Act. However,
residents have the option of permanently locking their biometrics
and only temporarily unlock it when needed for biometric
authentication as per Regulation 11 of the Authentication
Regulations.
(6) What is the status of the enrolments done by the 49,000
blacklisted enrolment operators? Please provide the number of
enrolments done by them?
Ans.: UIDAI has a policy to enforce the process guidelines and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 66 of 567
data quality check during the enrolment process. 100% of the
enrolment done by operators undergoes a quality assurance
check, wherein every enrolment passes through a human eye.
Any Aadhaar enrolment found to be contrary to the UIDAI
process, the enrolment itself gets rejected and Aadhaar is not
generated. The resident is advised to re-enroll. Once an
operator is blacklisted or suspended, further enrolments cannot
be carried out by him during the time the order of
blacklisting/suspension is valid.
(7) What are the total number of biometric De-duplication
rejections that have taken place till date? In case an enrolment is
rejected either for: (a) duplicate enrolment and (b) other technical
reason under Regulation 14 of the Aadhaar Enrolment
Regulations, what happens to the data packet that contains the
stored biometric and demographic information?
Ans.: The total number of biometric de-duplication rejections that
have taken place are 6.91 crores as on March 21, 2018. These
figures do not pertain to the number of unique individuals who
have been denied Aadhaar enrolment resulting in no Aadhaar
issued to them. This figure merely pertains to the number of
applications which have been identified by the Aadhaar de-
Writ Petition (Civil) No. 494 of 2012 connected matters Page 67 of 567
duplication system as having matching biometrics to an existing
Aadhaar number holder. The biometric de-duplication system is
designed to identify as duplicate those cases where any one of
the biometrics (ten fingers and two irises) match. However, very
often it is found that all the biometrics match. It is highly
improbable for the biometrics to match unless the same person
has applied again. There are a number of reasons why the same
person might apply more than once. For instance, many
individuals innocently apply for enrolment multiple times because
of the delay in getting their Aadhaar cards due to postal delays,
loss or destruction of their cards or confusion about how the
system works. Each time one applies for Aadhaar, the system
identifies her as a new enrolment but when it recognises that the
individual’s biometrics match with already those in the database,
thereafter further checks, including manual check through
experienced personnels, are done. After that exercise, if it is
found that the person is already registered, it rejects the
enrolment application. One of their main reasons for rejection is
that multiple people would put their biometric details like
fingerprints for Aadhaar generation either as a fraudulent exercise
or by mistake, which also would get rejected. There were many
fakes and frauds in the earlier systems and several reports have
Writ Petition (Civil) No. 494 of 2012 connected matters Page 68 of 567
found that almost 50% of the subsidies were getting pilfered away
by fakes and duplicates in the system. Then, there would also be
several such people who may have tried to defraud the Aadhaar
enrolment system as well but failed get multiple Aadhaar numbers
due to the stringent Aadhaar de-duplication process. Thus, the
mere fact that 6.23 crore enrolments have been rejected as
biometric duplicates does not mean that 6.23 crore people have
been denied an Aadhaar number as has been alleged by the
petitioners. Any genuine person who does not have an Aadhaar
number and whose enrolment has been rejected can always
apply again for enrolment. It is worth noting that none of the de-
duplication rejects have come forward to lodge complaints either
with the Authority or with the Government about denial of Aadhaar
number. None of them have even approached any Court of law.
Evidently, the genuine residents have got themselves re-enrolled
and the rest are those who were trying to reach the Aadhaar
system by fraudulent means. That explains why no one has
approached a court of law complaining denial of Aadhaar number.
All the enrolment packets received by UIDAI (accepted/rejected)
are archived in the CIDR irrespective of its status.
(8) If the figure of rejection of enrolment packets was 8 crore,
Writ Petition (Civil) No. 494 of 2012 connected matters Page 69 of 567
as on 2015, what is the total rejection figure for enrolment
packets as on date? How many field studies/physical verification
have been done to ensure that these persons (who have been
rejected) are indeed “False or duplicate” enrolments?
Ans.: The total rejection figure for enrolment packets is 18.0 cr.
as on March 26, 2018. These rejections are due to various
technical reasons like: (i) data quality reject such as address
incomplete, name incomplete, use of expletives in names,
address etc. photo is of object, photo of photo, age photo
mismatch etc.; and (ii) OSI validation reject such as operator /
supervisor / introducer validation failed, operator / supervisor /
introducer / Head of Family biometric validation failed etc.
Those whose enrolments have been rejected for any reason
and who do not have Aadhaar can re-enrol and obtain Aadhaar.
Rejection of enrolments do not mean that the person will never be
able to get Aadhaar.
(9) What does “any other appropriate response” under Section
8(4) of the Aadhaar Act include?
Ans.: “Any other appropriate responses” includes e-KYC or
limited e-KYC data. As per Regulation 3 of Authentication
Regulations, UIDAI provides two types of authentication facilities,
Writ Petition (Civil) No. 494 of 2012 connected matters Page 70 of 567
namely –
(i) Yes/No authentication facility; and
(ii) e-KYC authentication facility.
In Yes/No authentication, UIDAI provides the response as
Yes or No along with relevant error codes, if any.
In e-KYC authentication, UIDAI provides the demographic
data along with photograph and in case of mismatch/error, the
relevant error codes.
54) Questions and Answers to the queries raised by the petitioners in
W.P. (C) No. 829 of 2013 entitled ‘S.G. Vombatkere Anr. v.
Union of India
(1) Please confirm that no UIDAI official verifies the correctness
of documents offered at the stage of enrolment/updating.
Ans.: As per UIDAI process, the verification of the documents is
entrusted to the Registrar. For Verification based on Documents,
the verifier present at the Enrolment Centre will verify the
documents. Registrars/Enrolment agency must appoint personnel
for the verification of documents.
(2) Please confirm that UIDAI does not know whether the
documents shown at the time of enrolment/updating are genuine
or false.
Ans.: The answer is same as in (1) above.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 71 of 567
(3) Please confirm:
(a) UIDAI does not identify the persons it only matches the
biometric information received at the time of authentication with
its records and provides a Yes/No response;
Ans.: Biometric authentication of an Aadhaar number holder is
always performed as 1:1 biometric match against his/her Aadhaar
number (identity) in CIDR. Based on the match, UIDAI provides
Yes or No response. A “Yes” response means a positive
identification of the Aadhaar number holder.
Each enrolment is biometrically de-duplicated against all
(1.2 billion) residents to issue the Aadhaar number (or Unique
Identity).
(b) UIDAI takes no responsibility with respect to the correctness
of the name, date of birth or address of the person enrolled.
Ans.: The Name/Address/DOB are derived from the Proof of
Identity (POI)/Proof of Address (POA) documents submitted
during enrolments.
The enrolment/update packet (encrypted) retains a scanned
copy of the POI/POA documents used for the enrolment which
can be reviewed in case of dispute.
UIDAI maintains the update history of each Aadhaar
Writ Petition (Civil) No. 494 of 2012 connected matters Page 72 of 567
number related to changes in name, address, date of birth etc.
(4) Please confirm:
(a) UIDAI takes no responsibility with respect to the correct
identification of a person.
Ans.: Please refer to Answer (1) above. Additionally, it may be
stated that enrolment of Aadhaar is done through a resident
enrolment process and verification of the POI/POA document is
done against the acceptable documents, as per the UIDAI valid
list of documents as provided in Schedule II and III Aadhaar
(Enrolment and Update) Regulations, 2016 read with Regulation
10.
UIDAI takes responsibility in creating and implementing
standards, ensuring matching systems installed in CIDR work as
they are designed to do, and providing options to Aadhaar
holders in terms of controlling their identity (such as updating their
data, locking their biometrics, etc.) and accessing their own
authentication records. One of the key goals of Aadhaar is to
issue a unique identity for the residents of India. Hence, each
enrolment is biometrically de-duplicated against all (1.2 billion)
residents to issue the Aadhaar number (or Unique Identity).
Section 4 of Aadhaar lays down the properties of an
Writ Petition (Civil) No. 494 of 2012 connected matters Page 73 of 567
Aadhaar number. Sub-section (3) of Section 4 reads as under:
“(3) An Aadhaar number, in physical or electronic form
subject to authentication and other conditions, as may be
specified by regulations, may be accepted as proof of
identity of the Aadhaar number holder for any purpose.”The requesting entities are at liberty to use any or multiple
of authentication mode available under Regulation 4 of Aadhaar
(Authentication) Regulation, 2016 as per their requirements and
needs of security etc.
(b) The biometric authentication is based on a probabilistic
match of the biometric captured during authentication and the
record stored with CIDR.
Ans.: Biometric authentication is based on 1:1 matching and,
therefore, in that sense it is not probabilistic. If biometrics are
captured it will lead to successful authentication. If biometrics are
not well captured during authentication or an impostor tries
authentication, it will lead to authentication failure. Aadhaar Proof
of Concept studies show that a vast majority of residents (98%)
can successfully authenticate using biometric modalities such
fingerprints and/or iris.
However, the Aadhaar Act and Regulations provides that an
Aadhaar number holder cannot be denied service due to the
failure of Aadhaar authentication. Hence, all Aadhaar
Writ Petition (Civil) No. 494 of 2012 connected matters Page 74 of 567
applications must implement exception processes. Possible
methods to implement the exception process include:
(i) Family Based Authentication: Family based applications
such as PDS or Health applications may allow authentication by
family members to allow resident to avail services.
(ii) Alternate Modalities: Some applications may use different
modalities for exception handling. Alternate modalities include:
(a) Iris Authentication
(b) OTP Authentication (if allowed by policy)
(iii) Biometric Fusion: UIDAI is introducing face authentication
as secondary authentication factor to reduce the rate of
authentication failures, especially for senior citizens. At this time,
face authentication will be used only conjunction with another
authentication factor such as finger/iris/OTP.
(a) Face + Finger Fusion
(b) Face + Iris Fusion
(c) Face + OTP Fusion
(iv) Non Aadhaar Based Exception process: Applications may
implement non-Aadhaar based exception process to ensure that
no resident is denied service. Applications need to monitor the
use of exceptions in their applications to prevent misuse of the
exception process.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 75 of 567
(v) Accordingly, DBT Mission Cabinet Secretariat had issued a
detailed circular dated December 19, 2017 regarding use of
Aadhaar in benefit schemes of Government – exception handling.
(5) Please confirm that with respect to individuals under 15
years and over 60 years of age, biometric authentication is likely
to fail due to changes in/fading of biometrics such as fingerprints.
Ans.: Though there is no conclusive evidence to say that
biometric authentication success is dependent upon age, slightly
higher authentication failure rates have been observed only for
fingerprints for senior citizens above the age of 70. A number of
exception processes are provided in answer to Question 4(b)
above to prevent denial of service for failure of authentication.
Further, in case of any issue in biometric authentication, an
Aadhaar number holder may update his/her biometric at any of
the Aadhaar enrolment centres, which is also provided for in the
Aadhaar Act.
(6) Please confirm that the reasons why over 49000 enrolment
operators were blacklisted include: (i) failure to verify documents
presented; (ii) failure to maintain records of documents submitted;
(iii) misuse of information submitted; and (iv) aiding or abetting
false enrolments?
Writ Petition (Civil) No. 494 of 2012 connected matters Page 76 of 567
Ans.: UIDAI has a policy to enforce the process guidelines and
data quality check during the enrolment process. 100% of the
enrolments done by operators undergoes a quality assurance
check. If any Aadhaar enrolment is found to be not as per the
UIDAI process, the enrolment itself gets rejected and Aadhaar is
not generated. If such mistake by an operator crosses a
threshold defined in the policy, the operator is blacklisted/
removed from the UIDAI ecosystem. As such, of the 49,000
operators who have been blacklisted/removed from the UIDAI
eco-system, all the enrolments which were in violation of the
process were rejected in the QA stage. Enrolment operators may
be blacklisted for the following reasons:
illegally charging the resident for Aadhaar enrolment
poor demographic data quality
invalid biometric exceptions
other process malpractice
(7) Please confirm:
(a) At the stage of enrolment, there is no verification as to
whether a person is an illegal immigrant.
(b) At the stage of enrolment, there is no verification about a
person being resident in India for 182 days or more in the past 12
Writ Petition (Civil) No. 494 of 2012 connected matters Page 77 of 567
months.
(c) Foreign nationals may enrol and are issued Aadhaar
numbers.
(d) Persons retain their Aadhaar number even after they cease
to be resident. This is true of foreign nationals as well.
Ans.:
(a) At the time of enrolment, verification is done based upon
documents provided by the resident. In case any violation of
prescribed guidelines comes to light, the concerned Aadhaar is
omitted/deactivated.
(b) This has been included through the enrolment form where
resident undertakes and signs the disclosure:
“Disclosure under Section 3(2) of the Aadhaar (Targeted
Delivery of Financial And Other Subsidies, Benefits and
Services) Act, 2016I confirm that I have been residing in India for at least 182
days in the preceding 12 months information (including
biometrics) provided by me to the UIDAI is my own and is
true, correct and accurate. I am aware that my information
(including biometrics) will be used for generation of
Aadhaar and authentication. I understand that my identity
information (except core biometric) may be provided to an
agency only with my consent during authentication or as
per the provisions of the Aadhaar Act. I have a right to
access my identity information (except core biometrics)
following the procedure laid down by UIDAI.”
(c) Aadhaar is issued to the resident of India and the word
‘resident’ is defined in Section 2(v) of the Aadhaar Act. Aadhaar
numbers may be issued to foreign nationals who are resident in
Writ Petition (Civil) No. 494 of 2012 connected matters Page 78 of 567
India. Section 2(v) reads as under:
“ ‘resident’ means an individual who has resided in India for
a period or periods amounting in all to one hundred and
eighty-two days or more in the twelve months immediately
preceding the date of application for enrolment;”A foreign national fulfilling the above criteria is eligible for
Aadhaar, provided he submits the acceptable POI/POA document
as per the UIDAI valid list of documents.
(d) As per the Aadhaar Act, an Aadhaar number is issued to a
resident who has been residing in India for at least 182 days in
the preceding 12 months. An Aadhaar number is issued to an
individual for life and may be omitted/deactivated in case of
violation of prescribed guidelines only. Ineligibility of a person to
retain an Aadhaar number owing to become non-resident may be
treated as a ground for deactivation of Aadhaar number and
Regulation 28(l)(f) of the Aadhaar Enrolment Regulations. This is
in keeping with Section 31(1) and (3) of the Aadhaar Act wherein
it is an obligation on an Aadhaar number holder to inform the
UIDAI of changes in demographic information and for the
Authority to make the necessary alteration.
(8) Please confirm the Points Of Service (POS) biometric
readers are capable of storing biometric information.
Ans.: UIDAI has mandated use of Registered Devices (RD) for
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all authentication requests. With RDs, biometric data is signedwithin the device/RD service using the provider key to ensure it is
indeed captured live. The device provider RD service encrypts
the PID block before returning to the host application. This RD
service encapsulates the biometric capture, signing and
encryption of biometrics all within it. Therefore, introduction of
RD in Aadhaar authentication system rules out any possibility of
use of stored biometric and replay of biometrics captured from
other source. Requesting entities are not legally allowed to store
biometrics captured for Aadhaar authentication under Regulation
17(1)(a) of the Authentication Regulations.
(9) Referring to slide/page 13, please confirm that the
architecture under the Aadhaar Act includes: (i) authentication
user agencies (e.g. Kerala Dairy Farmers Welfare Fund Board);
(ii) authentication service agencies (e.g. Airtel); and (iii) CIDR.
Ans.: UIDAI appoints Requesting Entities (AUA/KUA) and
Authentication Service Agency (ASA) as per Regulation 12 of
Authentication Regulations. List of Requesting Entitles
(AUA/KUA) and Authentication Service Agency appointed by
UIDAI is available on UIDAI’s website. An AUA/KUA can do
authentication on behalf of other entities under Regulation 15 and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 80 of 567
Regulation 16.
(10) Please confirm that one or more entitles in the Aadhaar
architecture described in the previous paragraph record the date
and time of the authentication, the client IP, the device ID and
purpose of authentication.
Ans.: UIDAI does not ask requesting entities to maintain any logs
related to IP address of the device, GPS coordinates of the
device and purpose of authentication. However, AUAs like banks,
telecom etc., in order to ensure that their systems are secure,
frauds are managed, they may store additional information as per
their requirement under their respective laws to secure their
system. Section 32(3) of the Aadhaar Act specifically prevents
the UIDAI from either by itself or through any entity under its
control to keep or maintain any information about the purpose of
authentication.
Requesting entities are mandated to maintain following logs
as per Regulation 18 of the Authentication Regulations. These
are:
(i) the Aadhaar number against which authentication is
sought;
(ii) specified parameters of authentication request
Writ Petition (Civil) No. 494 of 2012 connected matters Page 81 of 567
submitted;
(iii) specified parameters received as authentication
response;
(iv) the record of disclosure of information to the Aadhaar
number holder at the time of authentication; and
(v) record of consent of the Aadhaar number holder for
authentication, but shall not, in any event, retain the PID
information.
Further, even if a requesting entity captures any other data
as per their own requirement, UIDAI will only audit the
authentication logs maintained by the requesting entity as per
Regulation 18(1) of the Authentication Regulations.
ASAs are not permitted to maintain any logs related to IP
address of the device, GPS coordinates of the device etc. ASAs
are mandated to maintain logs as per Regulation 20 of the
Authentication Regulations:
(i) identity of the requesting entity;
(ii) parameters of authentication request submitted; and
(iii) parameters received as authentication response.
Provided that no Aadhaar number, PID information, device
identity related data and e-KYC response data, where applicable,
shall be retained.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 82 of 567
(11) Referring to slide/page 7 and 14, please confirm that
‘traceability’ features enable UIDAI to track the specific device
and its location from where each and every authentication takes
place.
Ans.: UIDAI gets the AUA code, ASA code, unique device code,
registered device code used for authentication. UIDAI does not
get any information related to the IP address or the GPS location
from where authentication is performed as these parameters are
not part of authentication (v2.0) and e-KYC (v2.1) API UIDAI
would only know from which device the authentication has
happened, through which AUA/ASA etc. This is what the slides
meant by traceability. UIDAI does not receive any information
about at what location the authentication device is deployed, its
IP address and its operator and the purpose of authentication.
Further, the UIDAI or any entity under its control is statutorily
barred from collecting, keeping or maintaining any information
about the purpose of authentication under Section 32(3) of the
Aadhaar Act.
Summing up the Scheme:
55) The whole architecture of Aadhaar is devised to give unique
identity to the citizens of this country. No doubt, a person can
Writ Petition (Civil) No. 494 of 2012 connected matters Page 83 of 567
have various documents on the basis of which that individual can
establish her identify. It may be in the form of a passport,
Permanent Account Number (PAN) card, ration card and so on.
For the purpose of enrolment itself number of documents are
prescribed which an individual can produce on the basis of which
Aadhaar card can be issued. Thus, such documents, in a way,
are also proof of identity. However, there is a fundamental
difference between the Aadhaar card as a mean of identity and
other documents through which identity can be established.
Enrolment for Aadhaar card also requires giving of demographic
information as well as biometric information which is in the form
of iris and fingerprints. This process eliminates any chance of
duplication. It is emphasised that an individual can manipulate
the system by having more than one or even number of PAN
cards, passports, ration cards etc. When it comes to obtaining
Aadhaar card, there is no possibility of obtaining duplicate card.
Once the biometric information is stored and on that basis
Aadhaar card is issued, it remains in the system with the
Authority. Wherever there would be a second attempt for
enrolling for Aadhaar and for this purpose same person gives his
biometric information, it would immediately get matched with the
same biometric information already in the system and the second
Writ Petition (Civil) No. 494 of 2012 connected matters Page 84 of 567
request would stand rejected. It is for this reason the Aadhaar
card is known as Unique Identification (UID). Such an identity is
unparalleled.
56) There is, then, another purpose for having such a system of
issuing unique identification cards in the form of Aadhaar card. A
glimpse thereof is captured under the heading ‘Introduction’
above while mentioning how and under what circumstances the
whole project was conceptualised. To put it tersely, in addition to
enabling any resident to obtain such unique identification proof, it
is also to empower marginalised section of the society,
particularly those who are illiterate and living in abject poverty or
without any shelter etc. It gives identity to such persons also.
Moreover, with the aid of Aadhaar card, they can claim various
privileges and benefits etc. which are actually meant for these
people.
Identity of a person has a significance for every individual in
his/her life. In a civilised society every individual, on taking birth,
is given a name. Her place of birth and parentage also becomes
important as she is known in the society and these demographic
particulars also become important attribute of her personality.
Throughout their lives, individuals are supposed to provide such
information: be it admission in a school or college or at the time of
Writ Petition (Civil) No. 494 of 2012 connected matters Page 85 of 567
taking job or engaging in any profession or business activity, etc.
When all this information is available in one place, in the form of
Aadhaar card, it not only becomes unique, it would also qualify as
a document of empowerment. Added with this feature, when an
individual knows that no other person can clone her, it assumes
greater significance.
57) Thus, the scheme by itself can be treated as laudable when it
comes to enabling an individual to seek Aadhaar number, more
so, when it is voluntary in nature. Howsoever benevolent the
scheme may be, it has to pass the muster of constitutionality.
According to the petitioners, the very architecture of Aadhaar is
unconstitutional on various grounds, glimpse whereof can be
provided at this stage:
Gist of the challenge to the Aadhaar Scheme as well as the Act:
58) The petitioners accept that the case at hand is unique, simply
because of the reason that the programme challenged here is
itself without precedent. According to them, no democratic
society has adopted a programme that is similar in its command
and sweep. The case is about a new technology that the
Government seeks to deploy and a new architecture of
governance that it seeks to build on this technology. The
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petitioners are discrediting the Government’s claim that biometric
technology employed and the Aadhaar Act is greatly beneficial.
As per the petitioners, this is an inroad into the rights and liberties
of the citizens which the Constitution of India guarantees. It is
intrusive in nature. At its core, Aadhaar alters the relationship
between the citizen and the State. It diminishes the status of the
citizens. Rights freely exercised, liberties freely enjoyed,
entitlements granted by the Constitution and laws are all made
conditional, on a compulsory barter. The barter compels the
citizens to give up their biometrics ‘voluntarily’, allow their
biometrics and demographic information to be stored by the State
and private operators and then used for a process termed
‘authentication’. According to them, by the very scheme of the
Act and the way it operates, it has propensity to cause ‘civil
death’ of an individual by simply switching of Aadhaar of that
person. It is the submission of the petitioners that the
Constitution balances rights of individuals against State interest.
The Aadhaar completely upsets this balance and skews the
relationship between the citizen and the State enabling the State
to totally dominate the individual.
59) The challenge is directed at the constitutional validity of the
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following facets of Aadhaar:
(i) The Aadhaar programme that operated between January
28, 2009 until the bringing into force of the Aadhaar Act on
July 12, 2016.
(ii) The Aadhaar Act (and alternatively certain provisions of
that Act).
(iii) Elements of the Aadhaar project or programme that
continues to operate, though not within the cover of the
Aadhaar Act.
(iv) Specific Regulations framed under the Aadhaar Act,
illustratively the Aadhaar (Authentication) Regulations,
2016.
(v) A set of subordinate legislation in the form of statutory
rules/regulations including the Money Laundering
(Amendment) Rules, 2017.
(vi) All notifications (nearly 139) issued under Section 7 of the
Aadhaar Act (assuming the Act is upheld) insofar as they
make Aadhaar mandatory for availing certain
benefits/services/subsidies, including PDS, MGNREGA
and social security pension.
(vii) Actions on the part of the authorities to make Aadhaar
mandatory even where not covered by Section 7, inter
Writ Petition (Civil) No. 494 of 2012 connected matters Page 88 of 567
alia: Actions by CBSE, NEET, JEE and UGC requirements
for scholarship.
(viii) Specifically, actions on part of the Government mandating
linking of mobile phones and Aadhaar vide DoT circular
dated March 23, 2017.
(ix) Section 139AA of the Income Tax Act, 1961 insofar as it
violates Article 21 by mandating linking Aadhaar to PAN
and requiring Aadhaar linkage for filing returns.
60) Apart from the declaratory reliefs regarding ultra vires and
certiorari to quash the provisions/actions enumerated above,
there are certain other reliefs that are also sought, including:
(i) Suitable declarations regarding the physical autonomy of a
person over her own body qua the Indian State.
(ii) Mandatory directions requiring the respondents to give an
option to persons who are enrolled with the Aadhaar
programme to opt out and to delete the data with suitable
certification for compliance.
(iii) Mandatory directions to all concerned authorities that
should the Aadhaar Act, etc. be upheld, nevertheless,
every person must be entitled to avail services, benefits
etc. through alternative means of identification.
Negatively, nothing can be withheld from a citizen merely
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because he/she does not have an Aadhaar Card or does
not wish to use their Aadhaar Card.
(iv) Mandatory directions consistent with the fundamental right
to privacy and the right of a citizen to be let alone that no
electronic trial or record of his/her authentication be
maintained.
61) On the aforesaid premise, the petitioners point out following
heads of challenge:
Surveillance:
62) The project creates the architecture for pervasive surveillance
and unless the project is stopped, it will lead to an Orwellian State
where every move of the citizen is constantly tracked and
recorded by the State. The architecture of the project comprises
a Central Identities Data Repository (CIDR) which stores and
maintains authentication transaction data. The authentication
record comprises the time of authentication and the identity of the
requesting entity. Based on this architecture it is possible for the
State to track down the location of the person seeking
authentication. Since the requesting entity is also identified, the
activity that the citizen is engaging in is also known.
Violation of Fundamental Right to Privacy:
Writ Petition (Civil) No. 494 of 2012 connected matters Page 90 of 567
63) The fundamental right to privacy is breached by the Aadhaar
project and the Aadhaar Act in numerous ways. Following are the
illustrations given by the petitioners:
(a) Between 2009-10 and July 2016 the project violated the
right to privacy with respect to personal demographic as well as
biometric information collected, stored and shared as there was
no law authorising these actions.
(b) During both the pre-Act and post-Act periods, the project
continues to violate the right to privacy by requiring individuals to
part with demographic as well as biometric information to private
enrolling agencies.
(c) By enabling private entities to use the Aadhaar
authentication platform, the citizen’s right to informational privacy
is violated inasmuch as the citizen is compelled to ‘report’ his/her
actions to the State.
(d) Even where a person is availing of a subsidy, benefit or
service from the State, mandatory authentication through the
Aadhaar platform (without an option to the citizen to use an
alternative mode of identification) violates the right to
informational privacy.
(e) With Aadhaar being made compulsory for holding a bank
account, operating a cell phone, having a valid PAN, holding
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mutual funds, securing admission to school, taking a board
examination, etc. the citizen has no option but to obtain Aadhaar.
Compelling the citizen to part with biometric information violates
individual autonomy and dignity.
(f) In a digital society an individual has the right to protect
himself by controlling the dissemination of personal information,
including biometric information. Compelling an individual to
establish his identity by planting her biometric at multiple points of
service violates privacy involving the person.
(g) The seeding of Aadhaar in distinct databases enables the
content of information about an individual that is stored in
different silos to be aggregated. This enables the State to build
complete profiles of individuals violating privacy through the
convergence of data.
Limited Government:
64) A fundamental feature of the Constitution is the sovereignty of the
people with limited Government authority. The Constitution limits
governmental authority in various ways, amongst them
Fundamental Rights, the distribution of powers amongst organs
of the State and the ultimate check by way of judicial review. The
Aadhaar project is destructive of the limited Government. The
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Constitution is not about the power of the State, but about the
limits on the power of the State. Post Aadhaar, the State will
completely dominate the citizen and alter the relationship
between citizen and the State. The features of a totalitarian state
is seen from:
(a) A person cannot conduct routine activities such as operating
a bank account, holding an investment in mutual funds, receiving
government pension, receiving scholarship, receiving food
rations, operating a mobile phone without the State knowing
about these activities.
(b) The State can build a profile of the individual based on the
trial of authentication from which the nature of the citizen’s activity
can be determined.
(c) By disabling Aadhaar the State can cause civil death of the
person.
(d) By making Aadhaar compulsory for other activities such as
air travel, rail travel, directorship in companies, services and
benefits extended by the State Governments and Municipal
Corporations, etc. there will be virtually no zone of activity left
where the citizen is not under the gaze of the State. This will
have a chilling effect on the citizen.
(e) In such a society, there is little or no personal autonomy.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 93 of 567
The State is pervasive, and dignity of the individual stands
extinguished.
(f) This is an inversion of the accountability in the Right to
Information age: instead of the State being transparent to the
citizen, it is the citizen who is rendered transparent to the State.
Impugned Act illegally passed as a ‘Money Bill’:
65) The Bill No. 47 of 2016 introduced in the Lok Sabha and which
upon passage became the impugned Act was not a Money Bill in
terms of Article 110 of the Constitution of India. Even though the
object and purpose of the impugned legislation states that it is to
be used for the delivery of subsidies, benefits and services,
expenditure for which is incurred from the Consolidated Fund of
India, the scope of the impugned Act is far beyond what is
envisaged under Article 110. Inasmuch as the impugned Act has
not followed the constitutional procedure mandated for the
passage of a law by disguising the statute as a ‘Money Bill’, there
is no valid legislative process that has been followed in this case.
The legislative process being colourable and since judicial review
extends wherever Part III rights are violated, the Aadhaar Act is
liable to be struck down.
Procedure followed violates Articles 14 and 21 of the Constitution:
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66) The procedure adopted by the respondents, both pre-Act and
post-Act, is arbitrary and in violation of Articles 14 and 21 of the
Constitution because:
(a) There is no informed consent at the time of enrolment.
Individuals are not told about crucial aspects such as potential
misuse of the information, the commercial value of the
information, the storage of information in a centralised database,
that the information supplied could be used against the individual
in criminal proceedings pursuant to a court order, there is no opt-
out option, the entire enrolment process is conducted by private
entities without any governmental supervision, etc.
(b) UIDAI has no direct relationship with the enrolling agency
which collects sensitive personal information (biometric and
demographic).
(c) The data collected and uploaded in to the CIDR is not
verified by any Government official designated by the UIDAI. The
data collected and stored lacks integrity.
(d) The procedure at the stage of enrolment and authentication
enables the enrolling agency as well as the ‘requesting entity’ to
capture, store and misuse/use the biometric as well as
demographic information without the UIDAI having any control
Writ Petition (Civil) No. 494 of 2012 connected matters Page 95 of 567
over such misuse/use.
Unreliability of Biometrics and Exclusion:
67) The foundation of the project, i.e. biometrics, is an unreliable and
untested technology. Moreover, biometric exceptions severely
erode reliability. The biometric authentication system works on a
probabilistic model. Consequently, entitlements are reduced from
certainty to a chance delivery where the biometrics match.
Across the country several persons are losing out on their
entitlements, for say food rations, because of a biometric
mismatch resulting in them being excluded from various welfare
schemes. The project is not an ‘identity’ project but an
‘identification’ exercise. Unless the biometrics work, a person in
flesh and blood, does not exist for the State.
Illegal Object:
68) It is submitted before us that the objective of creating a single
pervasive identification over time is itself illegal. There are
several facets to the illegality and amongst them is the very
negation of an individual citizen’s freedom to identify through
different means. The coercive foundation of the impugned Act is
in substance an illegal objective that renders the statute ultra
vires Article 14 of the Constitution of India.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 96 of 567
Democracy, Identity and Choice:
69) A citizen or resident in a democratic society has a choice to
identify himself/herself through different modes in the course of
his/her interactions generally in society as well as his/her
interactions with the State. Mandating identification by only one
highly intrusive mode is excessive, disproportionate and violates
Articles 14, 19 and 21.
Children:
70) As per the petitioners, there is no justification to include children
in the Aadhaar programme for various reasons.
71) It may also be recorded at this juncture itself that insofar as the
Aadhaar Act is concerned, following provisions thereof are
specifically attacked as unconstitutional:
(i) Section 2(c) and 2(d) – authentication and authentication
record, read with Section 32
(ii) Section 2(h) read with Section 10 of CIDR
(iii) Section 2(l) read with Regulation 23 of the Aadhaar
(Enrolment and Updates) Regulation – ‘enrolling agency’
(iv) Section 2(v) – ‘resident’
(v) Section 3 – Aadhaar Number
Writ Petition (Civil) No. 494 of 2012 connected matters Page 97 of 567
(vi) Section 5 – Special treatment to children
(vii) Section 6 – Update of information
(viii) Section 7
(ix) Section 8
(x) Section 9
(xi) Chapter IV – Sections 11 to 23
(xii) Sections 23 and 54 – excessive delegation
(xiii) Section 23(2)(g) read with Chapter VI VII – Regulations
27 to 32 of the Aadhaar (Enrolment and Update) Regulations,
2016
(xiv) Section 29
(xv) Section 33
(xvi) Section 47
(xvii) Section 48 – Power of Central Government to supersede
UIDAI
(xviii) Section 57
(xix) Section 59
Some Introductory Remarks:
72) Before proceeding further, it would be necessary to state here the
approach which we have adopted in dealing with various issues
that are raised in these petitions. That may help in understanding
the manner in which the matter is dealt with. This necessitates
Writ Petition (Civil) No. 494 of 2012 connected matters Page 98 of 567
some introductory remarks:
(i) We may remark at this stage itself that many of the heads of
challenge which are taken note of above are overlapping and,
therefore, discussion on one aspect may provide substantial
answers to the arguments advanced under the other head of
challenge as well. Our endeavour, therefore, would be to eschew
the repetitive discussion. However, our anxiety to bring clarity
and also in order to have continuity of thought while discussing a
particular head, may have led to some repetitions at different
places. In any case, we would be dealing with the various heads
of challenge, one by one, so as to cover the entire spectrum.
(ii) In order to have a smooth flow of discussion, we are going
to formulate the questions which arise in all these petitions and
then decide those issues. Since, number of advocates 7 appeared
on both sides, many of the arguments addressed by them were
overlapping and repetitive. In this scenario, we deem it proper to
collate the arguments of all the counsel and present the same
while undertaking the discussion on each of the issues. Thus, in
the process, we would not be referring to each counsel and her
arguments. We may, however, intend to place on record that all
7 S/Shri Kapil Sibal, Gopal Subramaniam, P. Chidambaram, Shyam Divan, K.V. Viswanathan,
Neeraj Kishan Kaul, C.U. Singh, Anand Grover, Sanjay R. Hegde, Arvind P. Datar, V. Giri,
Rakesh Dwivedi, Jayant Bhushan, Sajan Poovayya, P.V. Surendra Nath, Senior Advocates, K.K.
Venugopal, Attorney General for India, Tushar Mehta, Additional Solicitor General of India,
Gopal Sankaranarayanan and Zoheb Hossain, Advocates.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 99 of 567
the counsel on both sides had taken the advocacy to its highest
level by presenting all possible nuances of the complex issues
involved. In the process, plethora of literature on such issues,
including the law prevailing across the Globe was cited. We,
therefore, place on record our appreciation of the sublime nature
of lawyering in this case.
(iii) As pointed out above, many number of foreign judgments
were cited during arguments. The history of this Court reflects
that this Court has liberally accepted the good practices, rules of
interpretation and norms of constitutional courts of other
jurisdictions. In fact, in drafting Indian Constitution itself, the
framing fathers had studied various foreign models and adopted
provisions from different Constitutions after deep reflection.
Constitutional influences of system prevailing in some of the
countries on Indian Constitution can be summarised as under:
From UK – Parliamentary Type of Government
– Cabinet System of Ministers
– Bicameral Parliament
– Lower House more powerful
– Council of Minsters responsible to Lower
House
From US – Written Constitution
– Executive head of State known as President
and his being the Supreme Commander of
the Armed Forces
– Vice-President as the ex-officio Chairman of
Rajya Sabha
– Bill of Rights
Writ Petition (Civil) No. 494 of 2012 connected matters Page 100 of 567
– Supreme Court
– Provision of States
– Independence of Judiciary and judicial
review
– Preamble
– Removal of Supreme Court and High Court
Judges
From USSR – Fundamental Duties
– Five Year Plan
From Australia – Concurrent List
– Language of the preamble
– Provision regarding trade, commerce and
intercourse
From Japan – Law on which the Supreme Court function
From Weimar – Suspension of Fundamental Rights during
Constitution of the emergency
Germany
From Canada – Scheme of federation with a strong centre
– Distribution of powers between the centre
and the states and placing residuary powers
with the centre
From Ireland – Concept of Directive Principles of States
Policy
– Method of election of President
– Nomination of members in the Rajya Sabha
by the President
It was, therefore, but natural to find out the manner in which
particular provisions have been interpreted by the constitutional
courts of the aforesaid countries. Case law of this Court would
reflect this for interpreting the provisions relating to ‘Inter-State
Trade, Commerce Intercourse’. The case law of the Australian
High Court is liberally referred as this Chapter is influenced by the
provisions contained in the Australian Constitution. Likewise, for
interpreting provisions of Part IX of the Constitution on ‘Relations
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between the Union and the States’ where Canadian model is
followed, the judgments of Canadian Supreme Court have been
cited by this Court from time to time. Influence of U.S.
Constitutionalism, tempered by the wish to preserve India’s own
characteristics, while interpreting chapter relating to fundamental
rights as well as power of judicial review is also discernible. A
critical analysis of the various judgments of this Court, where
foreign precedents are cited8, formulates four typologies of use,
namely:
(a) Where the court relies on foreign precedents for guidance
on general constitutional principles and when necessary to;
(b) Where the court frames the issue posed for adjudication
and/or to formulate evaluative test and frameworks;
(c) To distinguish the country’s context from the foreign one 9;
(d) To ‘read’ in the Constitution implied or unenumerated
rights10.
It can be said that though this Court has been liberally
relying upon the judgments of the constitutional courts of other
countries, particularly when it comes to human rights discourse,
at the same time, in certain situations, note of caution is also
8 Thiruvengadam, The Use of Foreign Law in Constitutional Cases in India and Singapore (2010)
9 Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan Anr., 1959 Supp (1)
SCR 528
10 Romesh Thappar v. State of Madras, 1950 SCR 594
Writ Petition (Civil) No. 494 of 2012 connected matters Page 102 of 567
added to give a message that the judgment of other jurisdiction
cannot be relied blindly and it would depend as to whether a
particular judgment will fit in Indian context or not. As a matter of
fact, in Basheshar Nath, the Court discussed the doctrine of
waiver in force in the United States and rejected it firmly stating
that:
:…the doctrine of waiver enunciated by some American
Judges in construing the American Constitution cannot be
introduced in our Constitution…We are not for the moment
convinced that this theory has any relevancy in construing
the fundamental rights conferred by Part III of the
Constitution.”On the contrary, in Romesh Thappar, the Court completely
based its decision to strike down a law restricting the free
circulation of newspapers on two US precedents, Ex parte
Jackson11 and Lovell v. City of Griffin12, and affirmed that the
protection of freedom of expression in India follows the maxim of
Madison that the Court transposed from its quotation in Near v.
Minnesota13, according to which ‘it is better to leave a few of its
noxious branches to their luxuriant growth, than, by pruning them
away, to injure the vigour of those yielding the proper fruits’.
Likewise, the role of foreign precedents in a majority opinion is
confirmed in the decision of His Holiness Kesavananda Bharati
11 Ex Parte Jackson, 96 US 727 (1878).
12 Lovell v. City of Griffin, 303 US 444 (1938).
13 Near v. Minnesota, 282 US 607 (1931) 717-18.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 103 of 567
Sripadagalvaru which clarifies Parliament’s power to amend the
Constitution. At the same time, looking to the use of foreign
precedents in this judgment, Justice S.M. Sikri (as His Lordship
then was), dealing with the interpretation of Article 368 of the
Constitution, first of all, highlighted that:
“No other Constitution in the world is like ours. No other
Constitution combines under its wings such diverse
peoples, numbering now more than 550 millions [sic], with
different languages and religions and in different stages of
economic development, into one nation, and no other
nation is faced with such vast socio-economic problems.
After this premise, however, His Lordship accepts, in order
to define what an ‘amendment’ is according to the Indian
Constitution, the reasoning of Lord Greene in Bidie v. General
Accident, Fire and Life Assurance Corporation 14 and that of
Justice Holmes in Towne v. Eisner15, which affirm that to
understand a word it is necessary to understand the context in
which it is inserted. To strengthen this, James v. Commonwealth
of Australia16 is also referred to.
We have stated the trend in brief with a purpose. Number
of judgments of U.K. Courts, German Supreme Court, European
Commission of Human Rights (ECHR), U.S. Supreme Court etc.
were cited. However, there is no similarity in approach by these
14 Bidie v. General Accident, Fire and Life Assurance Corporation (1948) 2 All ER 995, 998.
15 Towne v. Eisner, 245 US 418.
16 James v. Commonwealth of Australia, (1936) AC 578.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 104 of 567
Courts in deciding a particular issue by applying different
principles, particularly when it comes to the issues of data
protection and privacy. In this backdrop, it becomes necessary,
while referring to these judgments, to keep in mind the ethos,
cultural background and vast socio-economic problems of this
country and on that basis to accept a particular norm, or for that
matter, to formulate a constitutional norm which is relevant in our
context. That is the endeavour which is made by us.
(iv) Many arguments of the petitioners relate to the working of
the system. The petitioners had argued that the architecture of
Aadhaar, by its very nature, is probabilistic and, therefore, it may
result in exclusion, in many cases. Therefore, rather than
extending subsidies, benefits and services to the section of
society for which these are meant, it may have the tendency to
exclude them from receiving such subsidies, benefits and
services. The respondents, on the other hand, have stated on
affidavit that the attempt of the respondents would be to ensure
that no individual who is eligible for such benefits etc. is deprived
form receiving those benefits, even when in a particular case, it is
found that on authentication, his fingerprints or iris are not
matching and is resulting into failure. It was clarified that since
Writ Petition (Civil) No. 494 of 2012 connected matters Page 105 of 567
Aadhaar project is an ongoing project, there may be some
glitches in its working and there is a continuous attempt to make
improvements in order to ensure that it becomes foolproof over a
period of time. We have eschewed detailed discussion in respect
of those arguments, which may not have much relevance when
judging the constitutional validity of the Act and the scheme.
However, such arguments of exclusion etc. leading to violation of
Articles 14 and 21 are dealt with at an appropriate stage. But the
argument based on alleged inaccurate claims of savings by the
Authority/Union of India in respect of certain programmes, like
saving of USD 11 billion per annum due to the Aadhaar project,
as well as savings in the implementation of the MGNREGA
scheme, LPG subsidy, PDS savings need not detain us for long.
Such rebuttals raised by the petitioners may have relevance
insofar as working of the Act is concerned. That by itself cannot
be a ground to invalidate the statute.
(v) As mentioned above, notwithstanding the passions and
emotions evoked on both sides in equal measure, this Court has
adopted a lambent approach while dealing with the issues raised,
having a posture of calmness coupled with objective examination
of the issues on the touchstone of the constitutional provisions.
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We are in the age of constitutional democracy, that too
substantive and liberal democracy. Such a democracy is not
based solely on the rule of people through their representatives
which is known as “formal democracy”. It also has other precepts
like rule of law, human rights, independence of judiciary,
separation of powers, etc. The framers of Indian Constitution
duly recognized the aforesaid precepts of liberal and substantive
democracy with rule of law as an important and fundamental
pillar. At the same time, in the scheme of the Constitution, it is
the judiciary which is assigned the role of upholding rule of law
and protecting the Constitution and democracy.
The essence of rule of law is to preclude arbitrary action.
Dicey, who propounded the rule of law, gave distinct meaning to
this concept and explained that it was based on three kindered
features, which are as follows:
(i) absence of arbitrary powers on the part of authorities;
(ii) equality before law; and
(iii) the Constitution is part of the ordinary law of the land.
There are three aspects of the rule of law, which are as
follows:
(a) A formal aspect which means making the law rule.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 107 of 567
(b) A jurisprudential or doctrinal aspect which is concerned with
the minimal condition for the existence of law in society.
(c) A substantive aspect as per which the rule of law is
concerned with properly balancing between the individual and
society.
When we talk of jurisprudential rule of law, it includes
certain minimum requirements without which a legal system
cannot exist and which distinguished a legal system from an
automatic system where the leader imposes his will on everyone
else. Professor Lon Fuller has described these requirements
collectively as the ‘inner morality of law’. In addition to
jurisprudential concept, which is important and an essential
condition for the rule of law, the substantive concept of the rule of
law is equally important and inseparable norm of the rule of law in
real sense. It encompasses the ‘right conception’ of the rule of
law propounded by Dworkin. It means guaranteeing fundamental
values of morality, justice, and human rights, with a proper
balance between these and the other needs of the society.
Justice Aharon Barak, former Chief Justice of Israel, has lucidly
explained this facet of rule of law in the following manner:
“The rule of law is not merely public order, the rule of law is
social justice based on public order. The law exists to
ensure proper social life. Social life, however, is not a goal
in itself but a means to allow the individual to live in dignity
Writ Petition (Civil) No. 494 of 2012 connected matters Page 108 of 567
and develop himself. The human being and human rights
underlie this substantive perception of the rule of law, with
a proper balance among the different rights and between
human rights and the proper needs of society. The
substantive rule of law “is the rule of proper law, which
balances the needs of society and the individual”. This is
the rule of law that strikes a balance between society’s
need for political independence, social equality, economic
development, and internal order, on the one hand, and the
needs of the individual, his personal liberty, and his human
dignity on the other. The Judge must protect this rich
concept of the rule of law.”The ‘rule of law’, which is a fine sonorous phrase, is
dynamic and ever expanding and can be put alongside the
brotherhood of man, human rights and human dignity. About the
modern rule of law, Professor Garner observed:
“The concept in its modern dress meets a need that has
been felt throughout the history of civilization, law is not
sufficient in itself and it must serve some purpose. Man is
a social animal, but to live in society he has had to fashion
for himself and in his own interest the law and other
instruments of government, and as a consequence those
must to some extent limit his personal liberties. The
problem is how to control those instruments of government
in accordance with the Rule of Law and in the interest of
the governed.”Likewise, the basic spirit of our Constitution is to provide
each and every person of the nation equal opportunity to grow as
a human being, irrespective of race, caste, religion, community
and social status. Granville Austin while analyzing the functioning
of Indian Constitution in first 50 years has described three
distinguished strands of Indian Constitution: (i) protecting national
Writ Petition (Civil) No. 494 of 2012 connected matters Page 109 of 567
unity and integrity, (ii) establishing the institution and spirit ofdemocracy; and (iii) fostering social reforms. The strands are
mutually dependent and inextricably intertwined in what he
elegantly describes as a ‘seamless web’. And there cannot be
social reforms till it is ensured that each and every citizen of this
country is able to exploit his/her potentials to the maximum. The
Constitution, although drafted by the Constituent Assembly, was
meant for the people of India and that is why it is given by the
people to themselves as expressed in the opening words “We the
People…”. What is the most important gift to the common person
given by this Constitution is “fundamental rights” which may be
called human rights as well.
Speaking for the vision of our founding fathers, in State of
Karnataka Anr. v. Shri Ranganatha Reddy Anr. 17, this Court
speaking through Justice Krishna Iyer observed:
“The social philosophy of the Constitution shapes creative
judicial vision and orientation. Our nation has, as its
dynamic doctrine, economic democracy sans which
political democracy is chimerical. We say so because our
Constitution, in Parts III and IV and elsewhere, ensouls
such a value system, and the debate in this case puts
precisely this soul in peril….Our thesis is that the dialectics
of social justice should not be missed if the synthesis of
Parts III and Part IV is to influence State action and court
pronouncements. Constitutional problems cannot be
studied in a socio-economic vacuum, since socio-cultural
changes are the source of the new values, and sloughing
off old legal thought is part of the process the new equity-
17 (1977) 4 SCC 471
Writ Petition (Civil) No. 494 of 2012 connected matters Page 110 of 567
loaded legality. A judge is a social scientist in his role as
constitutional invigilator and fails functionally if he forgets
this dimension in his complex duties.”In Dattatraya Govind Mahajan v. State of Maharashtra18 the
spirit of our Constitution was explained thus:
“Our Constitution is a tryst with destiny, preamble with
lucent solemnity in the words ‘Justice – social, economic
and political.’ The three great branches of Government, as
creatures of the Constitution, must remember this promise
in their fundamental role and forget it at their peril, for to do
so will be a betrayal of chose high values and goals which
this nation set for itself in its objective Resolution and
whose elaborate summation appears in Part IV of the
Paramount Parchment. The history of our country’s
struggle for independence was the story of a battle
between the forces of socio-economic exploitation and the
masses of deprived people of varying degrees and the
Constitution sets the new sights of the nation…..Once we
grasp the dharma of the Constitution, the new orientation of
the karma of adjudication becomes clear. Our founding
fathers, aware of our social realities, forged our fighting
faith and integrating justice in its social, economic and
political aspects. While contemplating the meaning of the
Articles of the Organic Law, the Supreme Court shall not
disown Social Justice.”In National Human Rights Commission v. State of
Arunachal Pradesh19, the Supreme Court explained it again, as
under:
“We are a country governed by the Rule of Law. Our
Constitution confers certain rights on every human being
and certain other rights on citizens. Every person is entitled
to equality before the law and equal protection of the laws.”Looking the matter from this angle, when the judiciary is
assigned the role of upholding the rule of law, the first function of
18 (1977) 2 SCC 548
19 (1996) 1 SCC 742
Writ Petition (Civil) No. 494 of 2012 connected matters Page 111 of 567
the judiciary is to protect the democracy as well as theConstitution. At the same time, second role of the Court, which is
equally important, is to bridge the gap between the law and the
society. In the process of undertaking this role, a third role, which
is of equal significance also springs up. Judiciary is also to
ensure that social and economic justice is meted out to the
deserving lot by affirmative action of the State. Our attempt has
been to strive the balancing of competing Constitutional norms.
The complex issues are dealt with keeping in view this role of the
Supreme Court as assigned by the Constitution; albeit within the
constitutional norms.
Scope of Judicial Review:
73) The aforesaid discussion leads us to pick up and discuss another
strand viz. the scope of judicial review in such matters.
74) Judicial review means the Supremacy of law. It is the power of
the court to review the actions of the Legislature, the Executive
and the Judiciary itself and to scrutinize the validity of any law or
action. It has emerged as one of the most effective instruments of
protecting and preserving the cherished freedoms in a
constitutional democracy and upholding principles such as
separation of powers and rule of law. The Judiciary, through
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judicial review, prevents the decisions of other branches from
impinging on the constitutional values. The fundamental nature
of the Constitution is that of a limiting document, it curtails the
powers of majoritarianism from hijacking the State. The power of
review is the shield which is placed in the hands of the most
judiciaries of constitutional democracies to enable the protection
of the supreme document.
75) In Binoy Viswam v. Union of India Ors.20, scope of judicial
review of legislative Act was described in the following manner:
“76. Under the Constitution, Supreme Court as well as High
Courts are vested with the power of judicial review of not
only administrative acts of the executive but legislative
enactments passed by the legislature as well. This power is
given to the High Courts under Article 226 of the
Constitution and to the Supreme Court under Article 32 as
well as Article 136 of the Constitution. At the same time, the
parameters on which the power of judicial review of
administrative act is to be undertaken are different from the
parameters on which validity of legislative enactment is to
be examined. No doubt, in exercises of its power of judicial
review of legislative action, the Supreme Court, or for that
matter, the High Courts can declare law passed by
Parliament or the State Legislature as invalid. However, the
power to strike down primary legislation enacted by the
Union or the State Legislatures is on limited grounds.
Courts can strike down legislation either on the basis that it
falls foul of federal distribution of powers or that it
contravenes fundamental rights or other constitutional
rights/provisions of the Constitution of India. No doubt,
since the Supreme Court and the High Courts are treated
as the ultimate arbiter in all matters involving interpretation
of the Constitution, it is the courts which have the final say
on questions relating to rights and whether such a right is
violated or not. The basis of the aforesaid statement lies in
20 (2017) 7 SCC 59
Writ Petition (Civil) No. 494 of 2012 connected matters Page 113 of 567
Article 13(2) of the Constitution which proscribes the State
from making “any law which takes away or abridges the
right conferred by Part III”, enshrining fundamental rights. It
categorically states that any law made in contravention
thereof, to the extent of the contravention, be void.
77. We can also take note of Article 372 of the Constitution
at this stage which applies to pre-constitutional laws. Article
372(1) reads as under:
“372. Continuance in force of existing laws and
their adaptation.—(1) Notwithstanding the repeal by
this Constitution of the enactments referred to in
Article 395 but subject to the other provisions of this
Constitution, all the laws in force in the territory of
India immediately before the commencement of this
Constitution shall continue in force therein until
altered or repealed or amended by a competent
legislature or other competent authority.”
In the context of judicial review of legislation, this provision
gives an indication that all laws enforced prior to the
commencement of the Constitution can be tested for
compliance with the provisions of the Constitution by
courts. Such a power is recognised by this Court in Union
of India v. SICOM Ltd. In that judgment, it was also held that
since the term “laws”, as per Article 372, includes common
law the power of judicial review of legislation, which is a
part of common law applicable in India before the
Constitution came into force, would continue to vest in the
Indian courts.
78. …These contours of the judicial review are spelled out
in the clear terms in Rakesh Kohli, and particularly in the
following paragraphs: (SCC pp. 321-22 325-27, paras
16-17, 26-28 30)
“16. The statute enacted by Parliament or a State
Legislature cannot be declared unconstitutional
lightly. The court must be able to hold beyond any iota
of doubt that the violation of the constitutional
provisions was so glaring that the legislative provision
under challenge cannot stand. Sans flagrant violation
of the constitutional provisions, the law made by
Parliament or a State Legislature is not declared bad.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 114 of 567
17. This Court has repeatedly stated that legislative
enactment can be struck down by court only on two
grounds, namely (i) that the appropriate legislature
does not have the competence to make the law, and
(ii) that it does not (sic) take away or abridge any of
the fundamental rights enumerated in Part III of the
Constitution or any other constitutional provisions. In
McDowell and Co. while dealing with the challenge to
an enactment based on Article 14, this Court stated in
para 43 of the Report as follows: (SCC pp. 737-38)
‘43. … A law made by Parliament or the legislature
can be struck down by courts on two grounds and two
grounds alone viz. (1) lack of legislative competence,
and (2) violation of any of the fundamental rights
guaranteed in Part III of the Constitution or of any
other constitutional provision. There is no third
ground. … if an enactment is challenged as violative
of Article 14, it can be struck down only if it is found
that it is violative of the equality clause/equal
protection clause enshrined therein. Similarly, if an
enactment is challenged as violative of any of the
fundamental rights guaranteed by sub-clauses (a) to
(g) of Article 19(1), it can be struck down only if it is
found not saved by any of the clauses (2) to (6) of
Article 19 and so on. No enactment can be struck
down by just saying that it is arbitrary or
unreasonable. Some or the other constitutional
infirmity has to be found before invalidating an Act. An
enactment cannot be struck down on the ground that
court thinks it unjustified. Parliament and the
legislatures, composed as they are of the
representatives of the people, are supposed to know
and be aware of the needs of the people and what is
good and bad for them. The court cannot sit in
judgment over their wisdom.’
xx xx xx
26. In Mohd. Hanif Quareshi, the Constitution Bench
further observed that there was always a presumption
in favour of constitutionality of an enactment and the
burden is upon him, who attacks it, to show that there
has been a clear violation of the constitutional
principles. It stated in para 15 of the Report as under:
(AIR pp. 740-41)
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‘15. … The courts, it is accepted, must presume that
the legislature understands and correctly appreciates
the needs of its own people, that its laws are directed
to problems made manifest by experience and that its
discriminations are based on adequate grounds. It
must be borne in mind that the legislature is free to
recognise degrees of harm and may confine its
restrictions to those cases where the need is deemed
to be the clearest and finally 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.’
27. The above legal position has been reiterated by a
Constitution Bench of this Court in Mahant Moti Das
v. S.P. Sahi.
28. In Hamdard Dawakhana v. Union of India, inter
alia, while referring to the earlier two decisions,
namely, Bengal Immunity Co. Ltd. and Mahant Moti
Das, it was observed in para 8 of the Report as
follows: (Hamdard Dawakhana case, AIR p. 559)
‘8. Therefore, when the constitutionality of an
enactment is challenged on the ground of violation of
any of the articles in Part III of the Constitution, the
ascertainment of its true nature and character
becomes necessary i.e. its subject-matter, the area in
which it is intended to operate, its purport and intent
have to be determined. In order to do so it is
legitimate to take into consideration all the factors
such as history of the legislation, the purpose thereof,
the surrounding circumstances and conditions, the
mischief which it intended to suppress, the remedy for
the disease which the legislature resolved to cure and
the true reason for the remedy….’
In Hamdard Dawakhana, the Court also followed the
statement of law in Mahant Moti Das and the two
earlier decisions, namely, Charanjit Lal Chowdhury v.
Union of India and State of Bombay v. F.N. Balsara
and reiterated the principle that presumption was
always in favour of constitutionality of an enactment.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 116 of 567
xx xx xx
30. A well-known principle that in the field of taxation,
the legislature enjoys a greater latitude for
classification, has been noted by this Court in a long
line of cases. Some of these decisions are Steelworth
Ltd. v. State of Assam [Steelworth Ltd. v. State of
Assam, 1962 Supp (2) SCR 589], Gopal Narain v.
State of U.P. [Gopal Narain v. State of U.P., AIR 1964
SC 370], Ganga Sugar Corpn. Ltd. v. State of U.P.
[Ganga Sugar Corpn. Ltd. v. State of U.P., (1980) 1
SCC 223 : 1980 SCC (Tax) 90], R.K. Garg v. Union of
India [R.K. Garg v. Union of India, (1981) 4 SCC 675 :
1982 SCC (Tax) 30] and State of W.B. v. E.I.T.A.
India Ltd. [State of W.B. v. E.I.T.A. India Ltd., (2003) 5
SCC 239]”
(emphasis in original)
xx xx xx
83. It is, thus, clear that in exercise of power of judicial
review, the Indian courts are invested with powers to strike
down primary legislation enacted by Parliament or the
State Legislatures. However, while undertaking this
exercise of judicial review, the same is to be done at three
levels. In the first stage, the Court would examine as to
whether impugned provision in a legislation is compatible
with the fundamental rights or the constitutional provisions
(substantive judicial review) or it falls foul of the federal
distribution of powers (procedural judicial review). If it is not
found to be so, no further exercise is needed as challenge
would fail. On the other hand, if it is found that legislature
lacks competence as the subject legislated was not within
the powers assigned in the List in Schedule VII, no further
enquiry is needed and such a law is to be declared as ultra
vires the Constitution. However, while undertaking
substantive judicial review, if it is found that the impugned
provision appears to be violative of fundamental rights or
other constitutional rights, the Court reaches the second
stage of review. At this second phase of enquiry, the Court
is supposed to undertake the exercise as to whether the
impugned provision can still be saved by reading it down
so as to bring it in conformity with the constitutional
provisions. If that is not achievable then the enquiry enters
the third stage. If the offending portion of the statute is
severable, it is severed and the Court strikes down the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 117 of 567
impugned provision declaring the same as
unconstitutional.”
76) In support of the aforesaid proposition that an Act of the
Parliament can be invalidated only on the aforesaid two grounds,
passages from various judgments were extracted 21. The Court
also noted the observations from State of A.P. Ors. v.
MCDOWELL Co. Ors.22 wherein it was held that apart from
the aforesaid two grounds, no third ground is available to validate
any piece of legislation. In the process, it was further noted that
in Rajbala Ors. v. State of Haryana Ors.23 (which followed
MCDOWELL Co. case), the Court held that a legislation cannot
be declared unconstitutional on the ground that it is ‘arbitrary’
inasmuch as examining as to whether a particular Act is arbitrary
or not implies a value judgment and courts do not examine the
wisdom of legislative choices, and, therefore, cannot undertake
this exercise.
77) The issue whether law can be declared unconstitutional on the
ground of arbitrariness has received the attention of this Court in
a Constitution Bench judgment in the case of Shayara Bano v.
Union of India Ors.24. R.F. Nariman and U.U. Lalit, JJ.
21 State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312; Ashoka Kumar Thakur v. Union of India,
(2008) 6 SCC 1
22 (1996) 3 SCC 709
23 (2016) 2 SCC 445
24 (2017) 9 SCC 1
Writ Petition (Civil) No. 494 of 2012 connected matters Page 118 of 567
discredited the ratio of the aforesaid judgments wherein the Court
had held that a law cannot be declared unconstitutional on the
ground that it is arbitrary. The Judges pointed out the larger
Bench judgment in the case of Dr. K.R. Lakshmanan v. State of
T.N. Anr.25 and Maneka Gandhi v. Union of India Anr.26 where
‘manifest arbitrariness’ is recognised as the third ground on which
the legislative Act can be invalidated. Following discussion in this
behalf is worthy of note:
“87. The thread of reasonableness runs through the entire
fundamental rights chapter. What is manifestly arbitrary is
obviously unreasonable and being contrary to the rule of
law, would violate Article 14. Further, there is an apparent
contradiction in the three-Judge Bench decision in
McDowell [State of A.P. v. McDowell and Co., (1996) 3
SCC 709] when it is said that a constitutional challenge can
succeed on the ground that a law is “disproportionate,
excessive or unreasonable”, yet such challenge would fail
on the very ground of the law being “unreasonable,
unnecessary or unwarranted”. The arbitrariness doctrine
when applied to legislation obviously would not involve the
latter challenge but would only involve a law being
disproportionate, excessive or otherwise being manifestly
unreasonable. All the aforesaid grounds, therefore, do not
seek to differentiate between State action in its various
forms, all of which are interdicted if they fall foul of the
fundamental rights guaranteed to persons and citizens in
Part III of the Constitution.
88. We only need to point out that even after McDowell
[State of A.P. v. McDowell and Co., (1996) 3 SCC 709] ,
this Court has in fact negated statutory law on the ground
of it being arbitrary and therefore violative of Article 14 of
the Constitution of India. In Malpe Vishwanath Acharya v.
State of Maharashtra [Malpe Vishwanath Acharya v. State
of Maharashtra, (1998) 2 SCC 1] , this Court held that after
passage of time, a law can become arbitrary, and,
25 (1996) 2 SCC 226
26 (1978) 1 SCC 248
Writ Petition (Civil) No. 494 of 2012 connected matters Page 119 of 567
therefore, the freezing of rents at a 1940 market value
under the Bombay Rent Act would be arbitrary and violative
of Article 14 of the Constitution of India (see paras 8 to 15
and 31).
xx xx xx
99. However, in State of Bihar v. Bihar Distillery Ltd. [State
of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453] , SCC at
para 22, in State of M.P. v. Rakesh Kohli [State of M.P. v.
Rakesh Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ)
481], SCC at paras 17 to 19, in Rajbala v. State of Haryana
[Rajbala v. State of Haryana, (2016) 2 SCC 445], SCC at
paras 53 to 65 and in Binoy Viswam v. Union of India
[Binoy Viswam v. Union of India, (2017) 7 SCC 59], SCC at
paras 80 to 82, McDowell [State of A.P. v. McDowell and
Co., (1996) 3 SCC 709] was read as being an absolute bar
to the use of “arbitrariness” as a tool to strike down
legislation under Article 14. As has been noted by us earlier
in this judgment, McDowell [State of A.P. v. McDowell and
Co., (1996) 3 SCC 709] itself is per incuriam, not having
noticed several judgments of Benches of equal or higher
strength, its reasoning even otherwise being flawed. The
judgments, following McDowell [State of A.P. v. McDowell
and Co., (1996) 3 SCC 709] are, therefore, no longer good
law.”
78) The historical development of the doctrine of arbitrariness has
been noticed by the said Judges in Shayara Bano in detail. It
would be suffice to reproduce paragraphs 67 to 69 of the said
judgment as the discussion in these paras provide a sufficient
guide as to how a doctrine of arbitrariness is to be applied while
adjudging the constitutional validity of a legislation.
“67. We now come to the development of the doctrine of
arbitrariness and its application to State action as a distinct
doctrine on which State action may be struck down as
being violative of the rule of law contained in Article 14. In a
significant passage, Bhagwati, J., in E.P. Royappa v. State
of T.N. stated: (SCC p. 38, para 85)
Writ Petition (Civil) No. 494 of 2012 connected matters Page 120 of 567
“85. The last two grounds of challenge may be taken
up together for consideration. Though we have
formulated the third ground of challenge as a distinct
and separate ground, it is really in substance and
effect merely an aspect of the second ground based
on violation of Articles 14 and 16. Article 16 embodies
the fundamental guarantee that there shall be
equality of opportunity for all citizens in matters
relating to employment or appointment to any office
under the State. Though enacted as a distinct and
independent fundamental right because of its great
importance as a principle ensuring equality of
opportunity in public employment which is so vital to
the building up of the new classless egalitarian
society envisaged in the Constitution, Article 16 is
only an instance of the application of the concept of
equality enshrined in Article 14. In other words, Article
14 is the genus while Article 16 is a species. Article
16 gives effect to the doctrine of equality in all matters
relating to public employment. The basic principle
which, therefore, informs both Articles 14 and 16 is
equality and inhibition against discrimination. Now,
what is the content and reach of this great equalising
principle? It is a founding faith, to use the words of
Bose, J., “a way of life”, and it must not be subjected
to a narrow pedantic or lexicographic approach. We
cannot countenance any attempt to truncate its all-
embracing scope and meaning, for to do so would be
to violate its activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it
cannot be “cribbed, cabined and confined” within
traditional and doctrinaire limits. From a positivistic
point of view, equality is antithetic to arbitrariness. In
fact equality and arbitrariness are sworn enemies;
one belongs to the rule of law in a republic while the
other, to the whim and caprice of an absolute
monarch. Where an act is arbitrary, it is implicit in it
that it is unequal both according to political logic and
constitutional law and is therefore violative of Article
14, and if it effects any matter relating to public
employment, it is also violative of Article 16. Articles
14 and 16 strike at arbitrariness in State action and
ensure fairness and equality of treatment. They
require that State action must be based on valid
relevant principles applicable alike to all similarly
situate and it must not be guided by any extraneous
Writ Petition (Civil) No. 494 of 2012 connected matters Page 121 of 567
or irrelevant considerations because that would be
denial of equality. Where the operative reason for
State action, as distinguished from motive inducing
from the antechamber of the mind, is not legitimate
and relevant but is extraneous and outside the area
of permissible considerations, it would amount to
mala fide exercise of power and that is hit by Articles
14 and 16. Mala fide exercise of power and
arbitrariness are different lethal radiations emanating
from the same vice: in fact the latter comprehends the
former. Both are inhibited by Articles 14 and 16.”
(emphasis supplied)
68. This was further fleshed out in Maneka Gandhi v.
Union of India, where, after stating that various
fundamental rights must be read together and must overlap
and fertilise each other, Bhagwati, J., further amplified this
doctrine as follows: (SCC pp. 283-84, para 7)
“The nature and requirement of the procedure under
Article 21
7. Now, the question immediately arises as to what is
the requirement of Article 14: what is the content and
reach of the great equalising principle enunciated in
this article? There can be no doubt that it is a
founding faith of the Constitution. It is indeed the pillar
on which rests securely the foundation of our
democratic republic. And, therefore, it must not be
subjected to a narrow, pedantic or lexicographic
approach. No attempt should be made to truncate its
all-embracing scope and meaning, for to do so would
be to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions
and it cannot be imprisoned within traditional and
doctrinaire limits. We must reiterate here what was
pointed out by the majority in E.P. Royappa v. State
of T.N. , namely, that: (SCC p. 38, para 85)
‘85. … From a positivistic point of view, equality is
antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies; one belongs to the
rule of law in a republic, while the other, to the whim
and caprice of an absolute monarch. Where an act is
arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and
is therefore violative of Article 14….’
Writ Petition (Civil) No. 494 of 2012 connected matters Page 122 of 567
Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The
principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or
non-arbitrariness pervades Article 14 like a brooding
omnipresence and the procedure contemplated by
Article 21 must answer the test of reasonableness in
order to be in conformity with Article 14. It must be
“right and just and fair” and not arbitrary, fanciful or
oppressive; otherwise, it would be no procedure at all
and the requirement of Article 21 would not be
satisfied.”
(emphasis supplied)
69. This was further clarified in A.L. Kalra v. Project and
Equipment Corpn., following Royappa and holding that
arbitrariness is a doctrine distinct from discrimination. It
was held: (A.L. Kalra case, SCC p. 328, para 19)
“19. … It thus appears well settled that Article 14
strikes at arbitrariness in executive/administrative
action because any action that is arbitrary must
necessarily involve the negation of equality. One need
not confine the denial of equality to a comparative
evaluation between two persons to arrive at a
conclusion of discriminatory treatment. An action per
se arbitrary itself denies equal of (sic) protection by
law. The Constitution Bench pertinently observed in
Ajay Hasia case and put the matter beyond
controversy when it said: (SCC p. 741, para 16)
‘16. … Wherever therefore, there is arbitrariness in
State action whether it be of the legislature or of the
executive or of an “authority” under Article 12, Article
14 immediately springs into action and strikes down
such State action.’
This view was further elaborated and affirmed in D.S.
Nakara v. Union of India . In Maneka Gandhi v. Union of
India it was observed that Article 14 strikes at arbitrariness
in State action and ensures fairness and equality of
treatment. It is thus too late in the day to contend that an
executive action shown to be arbitrary is not either judicially
reviewable or within the reach of Article 14.”
Writ Petition (Civil) No. 494 of 2012 connected matters Page 123 of 567
The same view was reiterated in Babita Prasad v. State of
Bihar , SCC at p. 285, para 31.”
This doctrine is, thus, treated as a facet of both Articles 14
and 21 of the Constitution.
79) We would like to record that we have proceeded on the premise
that manifest arbitrariness also furnishes a ground on the basis
on which a legislative enactment can be judicially reviewed. In
the process, even the constitutional validity of Section 139AA of
the Income Tax Act, 1961 is given a fresh look on the touchstone
of this norm.
Explaining the doctrine/principles on which the cases are to be
decided:
80) Our discussion up to this stage, which gives a glimpse of the
attack to the Aadhaar scheme and the Aadhaar Act, spearheaded
by the petitioners, would reveal that in the forefront is the right to
privacy and that forms the main pillar on which the edifice of
arguments is substantially constructed 27. Inbuilt in this right to
privacy is the right to live with dignity, which is a postulate of right
to privacy. In the process, discussion leads to the issue of
proportionality, viz. whether measures taken under the Aadhaar
Act satisfy the doctrine of proportionality. We would, therefore,
27 There are few other incidental and ancillary issues raised by the petitioners as well, which we
propose to discuss and deal with after answering these fundamental submissions.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 124 of 567
be well advised to explain these concepts, so that their
application to the fact situation is undertaken with clear and
stable norms in mind.
Contours of Right to Privacy:
81) It stands established, with conclusive determination of the nine
Judge Bench judgment of this Court in K.S. Puttaswamy that right
to privacy is a fundamental right. The majority judgment authored
by Dr. D.Y. Chandrachud, J. (on behalf of three other Judges) and
five concurring judgments of other five Judges have declared, in
no uncertain terms and most authoritatively, right to privacy to be
a fundamental right. This judgment also discusses in detail the
scope and ambit of right to privacy. The relevant passages in this
behalf have been reproduced above while taking note of the
submissions of the learned counsel for the petitioners as well as
respondents. One interesting phenomenon that is discerned from
the respective submissions on either side is that both sides have
placed strong reliance on different passages from this very
judgment to support their respective stances. A close reading of
this judgment brings about the following features:
(i) Privacy has always been a natural right: The correct
position in this behalf has been established by a number of
Writ Petition (Civil) No. 494 of 2012 connected matters Page 125 of 567
judgments starting from Gobind v. State of M.P.28 Various
opinions conclude that:
(a) privacy is a concomitant of the right of the individual to
exercise control over his or her personality.
(b) Privacy is the necessary condition precedent to the
enjoyment of any of the guarantees in Part III.
(c) The fundamental right to privacy would cover at least three
aspects – (i) intrusion with an individual’s physical body, (ii)
informational privacy, and (iii) privacy of choice.
(d) One aspect of privacy is the right to control the
dissemination of personal information. And that every individual
should have a right to be able to control exercise over his/her own
life and image as portrayed in the world and to control
commercial use of his/her identity.
Following passages from different opinions reflect the
aforesaid proposition:
Dr. D.Y. Chandrachud, J.:
42. 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 to
conceive without the existence of natural rights. In 1690,
John Lockehad in his Second Treatise of Government
observed that the lives, liberties and estates of individuals
28 (1975) 2 SCC 148
Writ Petition (Civil) No. 494 of 2012 connected matters Page 126 of 567
are as a matter of fundamental natural law, a private
preserve. The idea of a private preserve was to create
barriers from outside interference. In 1765, William
Blackstone in his Commentaries on the Laws of England
spoke of a “natural liberty”. There were, in his view,
absolute rights which were vested in the individual by the
immutable laws of nature. These absolute rights were
divided into rights of personal security, personal liberty and
property. The right of personal security involved a legal and
uninterrupted enjoyment of life, limbs, body, health and
reputation by an individual.
xx xx xx
46. Natural rights are not bestowed by the State. They
inhere in human beings because they are human. They
exist equally in the individual irrespective of class or strata,
gender or orientation.
xx xx xx
318. Life and personal liberty are inalienable rights. These
are rights which are inseparable from a dignified human
existence. The dignity of the individual, equality between
human beings and the quest for liberty are the foundational
pillars of the Indian Constitution.
S.A. Bobde, J. :
415. Therefore, privacy is the necessary condition
precedent to the enjoyment of any of the guarantees in
Part III. As a result, when it is claimed by rights bearers
before constitutional courts, a right to privacy may be
situated not only in Article 21, but also simultaneously in
any of the other guarantees in Part III. In the current state
of things, Articles 19(1), 20(3), 25, 28 and 29 are all rights
helped up and made meaningful by the exercise of privacy.
This is not an exhaustive list. Future developments in
technology and social ordering may well reveal that there
are yet more constitutional sites in which a privacy right
inheres that are not at present evident to us.
R.F. Nariman, J. :
Writ Petition (Civil) No. 494 of 2012 connected matters Page 127 of 567
521. In the Indian context, a fundamental right to privacy
would cover at least the following three aspects:
Privacy that involves the person i.e. when there is
some invasion by the State of a person’s rights
relatable to his physical body, such as the right to
move freely;
Informational privacy which does not deal with a
person’s body but deals with a person’s mind, and
therefore recognises that an individual may have
control over the dissemination of material that is
personal to him. Unauthorised use of such
information may, therefore lead to infringement of
this right; and
The privacy of choice, which protects an individual’s
autonomy over fundamental personal choices.
For instance, we can ground physical privacy or privacy
relating to the body in Articles 19(1)(d) and (e) read with
Article 21; ground personal information privacy under
Article 21; and the privacy of choice in Articles 19(1)(a) to
(c), 20(3), 21 and 25. The argument based on “privacy”
being a vague and nebulous concept need not, therefore,
detain us.
xx xx xx
532. The learned counsel for the petitioners also referred to
another important aspect of the right to privacy. According
to the learned counsel for the petitioner this right is a
natural law right which is inalienable. Indeed, the reference
order itself, in para 12, refers to this aspect of the
fundamental right contained. It was, therefore, argued
before us that given the international conventions referred
to hereinabove and the fact that this right inheres in every
individual by virtue of his being a human being, such right
is not conferred by the Constitution but is only recognised
and given the status of being fundamental. There is no
doubt that the petitioners are correct in this submission.
However, one important roadblock in the way needs to be
got over.
533. In ADM, Jabalpur v. Shivakant Shukla, a Constitution
Bench of this Court arrived at the conclusion (by majority)
that Article 21 is the sole repository of all rights to life and
personal liberty, and, when suspended, takes away those
Writ Petition (Civil) No. 494 of 2012 connected matters Page 128 of 567
rights altogether. A remarkable dissent was that of Khanna,
J. [ Khanna, J. was in line to be Chief Justice of India but
was superseded because of this dissenting judgment. Nani
Palkhivala in an article written on this great Judge’s
supersession ended with a poignant sentence, “To the
stature of such a man, the Chief Justiceship of India can
add nothing.” Seervai, in his monumental treatise
Constitutional Law of India had this to say:“53. If in this
Appendix the dissenting judgment of Khanna, J. has not
been considered in detail, it is not for lack of admiration for
the judgment, or the courage which he showed in
delivering it regardless of the cost and consequences to
himself. It cost him the Chief Justiceship of India, but it
gained for him universal esteem not only for his courage
but also for his inflexible judicial independence. If his
judgment is not considered in detail it is because under the
theory of precedents which we have adopted, a dissenting
judgment, however valuable, does not lay down the law
and the object of a critical examination of the majority
judgments in this Appendix was to show that those
judgments are untenable in law, productive of grave public
mischief and ought to be overruled at the earliest
opportunity. The conclusion which Justice Khanna has
reached on the effect of the suspension of Article 21 is
correct. His reminder that the rule of law did not merely
mean giving effect to an enacted law was timely, and was
reinforced by his reference to the mass murders of millions
of Jews in Nazi concentration camps under an enacted law.
However, the legal analysis in this Chapter confirms his
conclusion though on different grounds from those which
he has given.” (at Appendix p. 2229).] The learned Judge
held: (SCC pp. 747 751, paras 525 531)
“525. The effect of the suspension of the right to
move any court for the enforcement of the right
conferred by Article 21, in my opinion, is that when a
petition is filed in a court, the court would have to
proceed upon the basis that no reliance can be
placed upon that article for obtaining relief from the
court during the period of emergency. Question then
arises as to whether the rule that no one shall be
deprived of his life or personal liberty without the
authority of law still survives during the period of
emergency despite the Presidential Order suspending
the right to move any court for the enforcement of the
right contained in Article 21. The answer to this
question is linked with the answer to the question as
Writ Petition (Civil) No. 494 of 2012 connected matters Page 129 of 567
to whether Article 21 is the sole repository of the right
to life and personal liberty. After giving the matter my
earnest consideration, I am of the opinion that Article
21 cannot be considered to be the sole repository of
the right to life and personal liberty. The right to life
and personal liberty is the most precious right of
human beings in civilised societies governed by the
rule of law. Many modern Constitutions incorporate
certain fundamental rights, including the one relating
to personal freedom. According to Blackstone, the
absolute rights of Englishmen were the rights of
personal security, personal liberty and private
property. The American Declaration of Independence
(1776) states that all men are created equal, and
among their inalienable rights are life, liberty, and the
pursuit of happiness. The Second Amendment to the
US Constitution refers inter alia to security of person,
while the Fifth Amendment prohibits inter alia
deprivation of life and liberty without due process, of
law. The different Declarations of Human Rights and
fundamental freedoms have all laid stress upon the
sanctity of life and liberty. They have also given
expression in varying words to the principle that no
one shall be derived of his life or liberty without the
authority of law. The International Commission of
Jurists, which is affiliated to UNESCO, has been
attempting with, considerable success to give
material content to “the rule of law”, an expression
used in the Universal Declaration of Human Rights.
One of its most notable achievements was the
Declaration of Delhi, 1959. This resulted from a
Congress held in New Delhi attended by jurists from
more than 50 countries, and was based on a
questionnaire circulated to 75,000 lawyers. “Respect
for the supreme value of human personality” was
stated to be the basis of all law (see p. 21 of the
Constitutional and Administrative Law by O. Hood
Phillips, 3rd Edn.).
xx xx xx
531. I am unable to subscribe to the view that when
right to enforce the right under Article 21 is
suspended, the result would be that there would be
no remedy against deprivation of a person’s life or
liberty by the State even though such deprivation is
without the authority of law or even in flagrant
Writ Petition (Civil) No. 494 of 2012 connected matters Page 130 of 567
violation of the provisions of law. The right not to be
deprived of one’s life or liberty without the authority of
law was not the creation of the Constitution. Such
right existed before the Constitution came into force.
The fact that the Framers of the Constitution made an
aspect of such right a part of the fundamental rights
did not have the effect of exterminating the
independent identity of such right and of making
Article 21 to be the sole repository of that right. Its
real effect was to ensure that a law under which a
person can be deprived of his life or personal liberty
should prescribe a procedure for such deprivation or,
according to the dictum laid down by Mukherjea, J. in
Gopalan case [A.K. Gopalan v. State of Madras, AIR
1950 SC 27 : 1950 SCR 88] , such law should be a
valid law not violative of fundamental rights
guaranteed by Part III of the Constitution. Recognition
as fundamental right of one aspect of the pre-
constitutional right cannot have the effect of making
things less favourable so far as the sanctity of life and
personal liberty is concerned compared to the
position if an aspect of such right had not been
recognised as fundamental right because of the
vulnerability of fundamental rights accruing from
Article 359. I am also unable to agree that in view of
the Presidential Order in the matter of sanctity of life
and liberty, things would be worse off compared to the
state of law as it existed before the coming into force
of the Constitution.”
(emphasis in original)
S.K. Kaul, J.:
574. I have had the benefit of reading the exhaustive and
erudite opinions of Rohinton F. Nariman and Dr D.Y.
Chandrachud, JJ. The conclusion is the same, answering
the reference that privacy is not just a common law right,
but a fundamental right falling in Part III of the Constitution
of India. I agree with this conclusion as privacy is a primal,
natural right which is inherent to an individual. However, I
am tempted to set out my perspective on the issue of
privacy as a right, which to my mind, is an important core of
any individual existence.
xx xx xx
Writ Petition (Civil) No. 494 of 2012 connected matters Page 131 of 567
620. I had earlier adverted to an aspect of privacy — the
right to control dissemination of personal information. The
boundaries that people establish from others in society are
not only physical but also informational. There are different
kinds of boundaries in respect to different relations. Privacy
assists in preventing awkward social situations and
reducing social frictions. Most of the information about
individuals can fall under the phrase “none of your
business”. On information being shared voluntarily, the
same may be said to be in confidence and any breach of
confidentiality is a breach of the trust. This is more so in the
professional relationships such as with doctors and lawyers
which requires an element of candour in disclosure of
information. An individual has the right to control one’s life
while submitting personal data for various facilities and
services. It is but essential that the individual knows as to
what the data is being used for with the ability to correct
and amend it. The hallmark of freedom in a democracy is
having the autonomy and control over our lives which
becomes impossible, if important decisions are made in
secret without our awareness or participation. [ Daniel
Solove, “10 Reasons Why Privacy Matters” published on
20-1-2014
privacy-matters/.]xx xx xx
625. Every individual should have a right to be able to
exercise control over his/her own life and image as
portrayed to the world and to control commercial use of
his/her identity. This also means that an individual may be
permitted to prevent others from using his image, name
and other aspects of his/her personal life and identity for
commercial purposes without his/her consent. [ The
Second Circuit's decision in Haelan Laboratories Inc. v.
Topps Chewing Gum Inc., 202 F 2d 866 (2d Cir 1953)
penned by Jerome Frank, J. defined the right to publicity as
“the right to grant the exclusive privilege of publishing his
picture”.]”xx xx xx
646. If the individual permits someone to enter the house it
does not mean that others can enter the house. The only
check and balance is that it should not harm the other
individual or affect his or her rights. This applies both to the
physical form and to technology. In an era where there are
Writ Petition (Civil) No. 494 of 2012 connected matters Page 132 of 567
wide, varied, social and cultural norms and more so in a
country like ours which prides itself on its diversity, privacy
is one of the most important rights to be protected both
against State and non-State actors and be recognised as a
fundamental right. How it thereafter works out in its inter-
play with other fundamental rights and when such
restrictions would become necessary would depend on the
factual matrix of each case. That it may give rise to more
litigation can hardly be the reason not to recognise this
important, natural, primordial right as a fundamental right.”(ii) The sanctity of privacy lies in its functional relationship with
dignity: Privacy ensures that a human being can lead a life of
dignity by securing the inner recesses of the human personality
from unwanted intrusions. While the legitimate expectation of
privacy may vary from intimate zone to the private zone and from
the private to the public arena, it is important to underscore that
privacy is not lost or surrendered merely because the individual is
in a public place. Further, privacy is a postulate of dignity itself.
Also, privacy concerns arise when the State seeks to intrude into
the body and the mind of the citizen. This aspect is discussed in
the following manner:
Dr. D.Y. Chandrachud, J. :
127. The submission that recognising the right to privacy is
an exercise which would require a constitutional
amendment and cannot be a matter of judicial
interpretation is not an acceptable doctrinal position. The
argument assumes that the right to privacy is independent
of the liberties guaranteed by Part III of the Constitution.There lies the error. The right to privacy is an element of
human dignity. The sanctity of privacy lies in its functional
relationship with dignity. Privacy ensures that a human
Writ Petition (Civil) No. 494 of 2012 connected matters Page 133 of 567
being can lead a life of dignity by securing the inner
recesses of the human personality from unwanted
intrusion. Privacy recognises the autonomy of the individual
and the right of every person to make essential choices
which affect the course of life. In doing so privacy
recognises that living a life of dignity is essential for a
human being to fulfill the liberties and freedoms which are
the cornerstone of the Constitution. To recognise the value
of privacy as a constitutional entitlement and interest is not
to fashion a new fundamental right by a process of
amendment through judicial fiat. Neither are the Judges nor
is the process of judicial review entrusted with the
constitutional responsibility to amend the Constitution. But
judicial review certainly has the task before it of
determining the nature and extent of the freedoms
available to each person under the fabric of those
constitutional guarantees which are protected. Courts have
traditionally discharged that function and in the context of
Article 21 itself, as we have already noted, a panoply of
protections governing different facets of a dignified
existence has been held to fall within the protection of
Article 21.xx xx xx
297. What, then, does privacy postulate? Privacy
postulates the reservation of a private space for the
individual, described as the right to be let alone. The
concept is founded on the autonomy of the individual. The
ability of an individual to make choices lies at the core of
the human personality. The notion of privacy enables the
individual to assert and control the human element which is
inseparable from the personality of the individual. The
inviolable nature of the human personality is manifested in
the ability to make decisions on matters intimate to human
life. The autonomy of the individual is associated over
matters which can be kept private. These are concerns
over which there is a legitimate expectation of privacy. The
body and the mind are inseparable elements of the human
personality. The integrity of the body and the sanctity of the
mind can exist on the foundation that each individual
possesses an inalienable ability and right to preserve a
private space in which the human personality can develop.
Without the ability to make choices, the inviolability of the
personality would be in doubt. Recognising a zone of
privacy is but an acknowledgment that each individual must
be entitled to chart and pursue the course of development
Writ Petition (Civil) No. 494 of 2012 connected matters Page 134 of 567
of personality. Hence privacy is a postulate of human
dignity itself. Thoughts and behavioural patterns which are
intimate to an individual are entitled to a zone of privacy
where one is free of social expectations. In that zone of
privacy, an individual is not judged by others. Privacy
enables each individual to take crucial decisions which find
expression in the human personality. It enables individuals
to preserve their beliefs, thoughts, expressions, ideas,
ideologies, preferences and choices against societal
demands of homogeneity. Privacy is an intrinsic recognition
of heterogeneity, of the right of the individual to be different
and to stand against the tide of conformity in creating a
zone of solitude. Privacy protects the individual from the
searching glare of publicity in matters which are personal to
his or her life. Privacy attaches to the person and not to the
place where it is associated. Privacy constitutes the
foundation of all liberty because it is in privacy that the
individual can decide how liberty is best exercised.
Individual dignity and privacy are inextricably linked in a
pattern woven out of a thread of diversity into the fabric of a
plural culture.xx xx xx
322. Privacy is the constitutional core of human dignity.
Privacy has both a normative and descriptive function. At a
normative level privacy subserves 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.323. Privacy includes at its core the preservation of
personal intimacies, the sanctity of family life, marriage,
procreation, the home and sexual orientation. Privacy also
connotes a right to be left alone. Privacy safeguards
individual autonomy and recognises 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 recognises the plurality
and diversity of our culture. While 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.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 135 of 567
S.A. Bobde, J. :407. Undoubtedly, privacy exists, as the foregoing
demonstrates, as a verifiable fact in all civilised societies.
But privacy does not stop at being merely a descriptive
claim. It also embodies a normative one. The normative
case for privacy is intuitively simple. Nature has clothed
man, amongst other things, with dignity and liberty so that
he may be free to do what he will consistent with the
freedom of another and to develop his faculties to the
fullest measure necessary to live in happiness and peace.
The Constitution, through its Part III, enumerates many of
these freedoms and their corresponding rights as
fundamental rights. Privacy is an essential condition for the
exercise of most of these freedoms. Ex facie, every right
which is integral to the constitutional rights to dignity, life,
personal liberty and freedom, as indeed the right to privacy
is, must itself be regarded as a fundamental right.408. Though he did not use the name of “privacy”, it is
clear that it is what J.S. Mill took to be indispensable to the
existence of the general reservoir of liberty that
democracies are expected to reserve to their citizens. In
the introduction to his seminal On Liberty (1859), he
characterised freedom in the following way:“This, then, is the appropriate region of human liberty.
It comprises, first, the inward domain of
consciousness; demanding liberty of conscience, in
the most comprehensive sense; liberty of thought and
feeling; absolute freedom of opinion and sentiment on
all subjects, practical or speculative, scientific, moral,
or theological. The liberty of expressing and
publishing opinions may seem to fall under a different
principle, since it belongs to that part of the conduct
of an individual which concerns other people; but,
being almost of as much importance as the liberty of
thought itself, and resting in great part on the same
reasons, is practically inseparable from it. Secondly,
the principle requires liberty of tastes and pursuits; of
framing the plan of our life to suit our own character;of doing as we like, subject to such consequences as
may follow: without impediment from our fellow
creatures, so long as what we do does not harm
them, even though they should think our conduct
foolish, perverse, or wrong. Thirdly, from this liberty of
Writ Petition (Civil) No. 494 of 2012 connected matters Page 136 of 567
each individual, follows the liberty, within the same
limits, of combination among individuals; freedom to
unite, for any purpose not involving harm to others:
the persons combining being supposed to be of full
age, and not forced or deceived.No society in which these liberties are not, on the
whole, respected, is free, whatever may be its form of
Government; and none is completely free in which
they do not exist absolute and unqualified. The only
freedom which deserves the name, is that of pursuing
our own good in our own way, so long as we do not
attempt to deprive others of theirs, or impede their
efforts to obtain it. Each is the proper guardian of his
own health, whether bodily, or mental and spiritual.
Mankind are greater gainers by suffering each other
to live as seems good to themselves, than by
compelling each to live as seems good to the rest.Though this doctrine is anything but new, and, to
some persons, may have the air of a truism, there is
no doctrine which stands more directly opposed to
the general tendency of existing opinion and practice.
Society has expended fully as much effort in the
attempt (according to its lights) to compel people to
conform to its notions of personal, as of social
excellence.” [John Stuart Mill, On Liberty and Other
Essays (Stefan Collini Edition, 1989) (1859)]
(emphasis supplied)409. The first and natural home for a right to privacy is in
Article 21 at the very heart of “personal liberty” and life
itself. Liberty and privacy are integrally connected in a way
that privacy is often the basic condition necessary for
exercise of the right of personal liberty. There are
innumerable activities which are virtually incapable of being
performed at all and in many cases with dignity unless an
individual is left alone or is otherwise empowered to ensure
his or her privacy. Birth and death are events when privacy
is required for ensuring dignity amongst all civilised people.
Privacy is thus one of those rights “instrumentally required
if one is to enjoy” [ Laurence H. Tribe and Michael C. Dorf,
“Levels of Generality in the Definition of Rights”, 57 U CHI L
REV 1057 (1990) at p. 1068.] rights specified and
enumerated in the constitutional text.Writ Petition (Civil) No. 494 of 2012 connected matters Page 137 of 567
410. This Court has endorsed the view that “life” must
mean “something more than mere animal existence” [Munn
v. Illinois, 1876 SCC OnLine US SC 4 : 24 L Ed 77 : 94 US
113 (1877) (Per Field, J.) as cited in Kharak Singh, (1964)
1 SCR 332 at pp. 347-48] on a number of occasions,
beginning with the Constitution Bench in Sunil Batra (1) v.
Delhi Admn. [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494
: 1979 SCC (Cri) 155] Sunil Batra [Sunil Batra v. Delhi
Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] connected
this view of Article 21 to the constitutional value of dignity.
In numerous cases, including Francis Coralie Mullin v. UT
of Delhi [Francis Coralie Mullin v. UT of Delhi, (1981) 1
SCC 608 : 1981 SCC (Cri) 212] , this Court has viewed
liberty as closely linked to dignity. Their relationship to the
effect of taking into the protection of “life” the protection of
“faculties of thinking and feeling”, and of temporary and
permanent impairments to those faculties. In Francis
Coralie Mullin[Francis Coralie Mullin v. UT of Delhi, (1981)
1 SCC 608 : 1981 SCC (Cri) 212] , Bhagwati, J. opined as
follows: (SCC p. 618, para 7)“7. Now obviously, the right to life enshrined in Article
21 cannot be restricted to mere animal existence. It
means something much more than just physical
survival. In Kharak Singh v. State of U.P. [Kharak
Singh v. State of U.P., AIR 1963 SC 1295 : (1963) 2
Cri LJ 329 : (1964) 1 SCR 332], Subba Rao, J.quoted with approval the following passage from the
judgment of Field, J. in Munn v. Illinois [Munn v.
Illinois, 1876 SCC OnLine US SC 4 : 24 L Ed 77 : 94
US 113 (1877)] to emphasise the quality of life
covered by Article 21: (Kharak Singh case [Kharak
Singh v. State of U.P., AIR 1963 SC 1295 : (1963) 2
Cri LJ 329 : (1964) 1 SCR 332] , AIR p. 1301, para15)
15. … “By the term “life” as here used something
more is meant than mere animal existence. The
inhibition against its deprivation extends to all those
limbs and faculties by which life is enjoyed. The
provision equally prohibits the mutilation of the body
or amputation of an arm or leg or the putting out of an
eye or the destruction of any other organ of the body
through which the soul communicates with the outer
world.” ’Writ Petition (Civil) No. 494 of 2012 connected matters Page 138 of 567
and this passage was again accepted as laying down
the correct law by the Constitution Bench of this Court
in the first Sunil Batra case [Sunil Batra v. Delhi
Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155].
Every limb or faculty through which life is enjoyed is
thus protected by Article 21 and a fortiori, this would
include the faculties of thinking and feeling. Now
deprivation which is inhibited by Article 21 may be
total or partial, neither any limb or faculty can be
totally destroyed nor can it be partially damaged.
Moreover it is every kind of deprivation that is hit by
Article 21, whether such deprivation be permanent or
temporary and, furthermore, deprivation is not an act
which is complete once and for all: it is a continuing
act and so long as it lasts, it must be in accordance
with procedure established by law. It is therefore clear
that any act which damages or injures or interferes
with the use of, any limb or faculty of a person, either
permanently or even temporarily, would be within the
inhibition of Article 21.”
(emphasis supplied)Privacy is, therefore, necessary in both its mental and
physical aspects as an enabler of guaranteed freedoms.411. It is difficult to see how dignity—whose constitutional
significance is acknowledged both by the Preamble and by
this Court in its exposition of Article 21, among other rights
—can be assured to the individual without privacy. Both
dignity and privacy are intimately intertwined and are
natural conditions for the birth and death of individuals, and
for many significant events in life between these events.
Necessarily, then, the right to privacy is an integral part of
both “life” and “personal liberty” under Article 21, and is
intended to enable the rights bearer to develop her
potential to the fullest extent made possible only in
consonance with the constitutional values expressed in the
Preamble as well as across Part III.R.F. Nariman, J:
525. But most important of all is the cardinal value of
fraternity which assures the dignity of the individual. [ In
1834, Jacques-Charles Dupont de l'Eure associated the
three terms liberty, equality and fraternity together in the
Revue Républicaine, which he edited, as follows:“Any man
aspires to liberty, to equality, but he cannot achieve it
Writ Petition (Civil) No. 494 of 2012 connected matters Page 139 of 567
without the assistance of other men, without
fraternity.”Many of our decisions recognise human dignity
as being an essential part of the fundamental rights
chapter. For example, see Prem Shankar Shukla v. Delhi
Admn., (1980) 3 SCC 526 at para 21, Francis Coralie
Mullin v. UT of Delhi, (1981) 1 SCC 608 at paras 6, 7 and
8, Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC
161 at para 10, Maharashtra University of Health Sciences
v. Satchikitsa Prasarak Mandal, (2010) 3 SCC 786 at para
37, Shabnam v. Union of India, (2015) 6 SCC 702 at paras
12.4 and 14 and Jeeja Ghosh v. Union of India, (2016) 7
SCC 761 at para 37.] The dignity of the individual
encompasses the right of the individual to develop to the
full extent of his potential. And this development can only
be if an individual has autonomy over fundamental
personal choices and control over dissemination of
personal information which may be infringed through an
unauthorised use of such information. It is clear that Article
21, more than any of the other articles in the fundamental
rights chapter, reflects each of these constitutional values
in full, and is to be read in consonance with these values
and with the international covenants that we have referred
to. In the ultimate analysis, the fundamental right to privacy,
which has so many developing facets, can only be
developed on a case-to-case basis. Depending upon the
particular facet that is relied upon, either Article 21 by itself
or in conjunction with other fundamental rights would get
attracted.S.K. Kaul, J. :
618. Rohinton F. Nariman, and Dr D.Y. Chandrachud, JJ.,
have emphasised the importance of the protection of
privacy to ensure protection of liberty and dignity. I agree
with them and seek to refer to some legal observations in
this regard:618.1. In Robertson and Nicol on Media Law [ Geoffrey
Robertson, QC and Andrew Nicol, QC, Media Law, 5th
Edn., p. 265.] it was observed:“Individuals have a psychological need to preserve an
intrusion-free zone for their personality and family and
suffer anguish and stress when that zone is violated.
Democratic societies must protect privacy as part of
their facilitation of individual freedom, and offer some
legal support for the individual choice as to what
Writ Petition (Civil) No. 494 of 2012 connected matters Page 140 of 567
aspects of intimate personal life the citizen is
prepared to share with others. This freedom in other
words springs from the same source as freedom of
expression: a liberty that enhances individual life in a
democratic community.”618.2. Lord Nicholls and Lord Hoffmann in their opinion in
Naomi Campbell case[Campbell v. MGN Ltd., (2004) 2 AC
457 : (2004) 2 WLR 1232 : (2004) UKHL 22 (HL)]
recognised the importance of the protection of privacy. Lord
Hoffman opined as under: (AC p. 472 H 473 A-D, paras
50-51)“50. What human rights law has done is to identify
private information as something worth protecting as
an aspect of human autonomy and dignity. And this
recognition has raised inescapably the question of
why it should be worth protecting against the state but
not against a private person. There may of course be
justifications for the publication of private information
by private persons which would not be available to
the state — I have particularly in mind the position of
the media, to which I shall return in a moment — but I
can see no logical ground for saying that a person
should have less protection against a private
individual than he would have against the state for the
publication of personal information for which there is
no justification. Nor, it appears, have any of the other
Judges who have considered the matter.51. The result of these developments has been a shift
in the centre of gravity of the action for breach of
confidence when it is used as a remedy for the
unjustified publication of personal information. …
Instead of the cause of action being based upon the
duty of good faith applicable to confidential personal
information and trade secrets alike, it focuses upon
the protection of human autonomy and dignity — the
right to control the dissemination of information about
one's private life and the right to the esteem and
respect of other people.”618.3. Lord Nicholls opined as under: (Naomi Campbell
case [Campbell v. MGN Ltd., (2004) 2 AC 457 : (2004) 2
WLR 1232 : (2004) UKHL 22 (HL)] , AC p. 464 D-F, para12)
Writ Petition (Civil) No. 494 of 2012 connected matters Page 141 of 567
“12. The present case concerns one aspect of
invasion of privacy: wrongful disclosure of private
information. The case involves the familiar
competition between freedom of expression and
respect for an individual's privacy. Both are vitally
important rights. Neither has precedence over the
other. The importance of freedom of expression has
been stressed often and eloquently, the importance of
privacy less so. But it, too, lies at the heart of liberty in
a modern state. A proper degree of privacy is
essential for the well-being and development of an
individual. And restraints imposed on government to
pry into the lives of the citizen go to the essence of a
democratic state: see La Forest J. in R. v. Dyment [R.
v. Dyment, 1988 SCC OnLine Can SC 86 : (1988) 2
SCR 417] , SCC OnLine Can SC para 17 : SCR p.426.”
619. Privacy is also the key to freedom of thought. A
person has a right to think. The thoughts are sometimes
translated into speech but confined to the person to whom
it is made. For example, one may want to criticise someone
but not share the criticism with the world.Chelameswar, J.:
372. History abounds with examples of attempts by
Governments to shape the minds of subjects. In other
words, conditioning the thought process by prescribing
what to read or not to read; what forms of art alone are
required to be appreciated leading to the conditioning of
beliefs; interfering with the choice of people regarding the
kind of literature, music or art which an individual would
prefer to enjoy. [Stanleyv. Georgia, 1969 SCC OnLine US
SC 78 : 22 L Ed 2d 542 : 394 US 557 (1969)“3. … that the
mere private possession of obscene matter cannot
constitutionally be made a crime.***9. … State has no
business telling a man, sitting alone in his own house, what
books he may read or what films he may watch. Our whole
constitutional heritage rebels at the thought of giving
Government the power to control men's minds.” (SCC
OnLine US SC paras 3 9)] Such conditioning is sought to
be achieved by screening the source of information or
prescribing penalties for making choices which
Governments do not approve. [Bijoe Emmanuel v. State of
Kerala, (1986) 3 SCC 615] Insofar as religious beliefs are
concerned, a good deal of the misery our species suffer
Writ Petition (Civil) No. 494 of 2012 connected matters Page 142 of 567
owes its existence to and centres around competing claims
of the right to propagate religion. Constitution of India
protects the liberty of all subjects guaranteeing [“25.
Freedom of conscience and free profession, practice
and propagation of religion.—(1) Subject to public order,
morality and health and to the other provisions of this Part,
all persons are equally entitled to freedom of conscience
and the right freely to profess, practice and propagate
religion.(2) Nothing in this article shall affect the operation
of any existing law or prevent the State from making any
law—(a) regulating or restricting any economic, financial,
political or other secular activity which may be associated
with religious practice;(b) providing for social welfare and
reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of
Hindus.Explanation I.—The wearing and carrying of
kirpans shall be deemed to be included in the profession of
the Sikh religion. Explanation II.—In sub-clause (b) of
clause (2), the reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jaina
or Buddhist religion, and the reference to Hindu religious
institutions shall be construed accordingly.”] the freedom of
conscience and right to freely profess, practice and
propagate religion. While the right to freely “profess,
practice and propagate religion” may be a facet of free
speech guaranteed under Article 19(1)(a), the freedom of
the belief or faith in any religion is a matter of conscience
falling within the zone of purely private thought process and
is an aspect of liberty. There are areas other than religious
beliefs which form part of the individual's freedom of
conscience such as political belief, etc. which form part of
the liberty under Article 21.373. Concerns of privacy arise when the State seeks to
intrude into the body of subjects. [Skinner v. Oklahoma,
1942 SCC OnLine US SC 125 : 86 L Ed 1655 : 316 US 535
(1942)“20. There are limits to the extent to which a
legislatively represented majority may conduct biological
experiments at the expense of the dignity and personality
and natural powers of a minority—even those who have
been guilty of what the majority defines as crimes.” (SCC
OnLine US SC para 20)—Jackson, J.] Corporeal
punishments were not unknown to India, their abolition is of
a recent vintage. Forced feeding of certain persons by the
State raises concerns of privacy. An individual's rights to
refuse life prolonging medical treatment or terminate his life
is another freedom which falls within the zone of the right to
Writ Petition (Civil) No. 494 of 2012 connected matters Page 143 of 567
privacy. I am conscious of the fact that the issue is pending
before this Court. But in various other jurisdictions, there is
a huge debate on those issues though it is still a grey area.
[ For the legal debate in this area in US, See Chapter 15.11
of American Constitutional Law by Laurence H. Tribe, 2nd
Edn.] A woman's freedom of choice whether to bear a child
or abort her pregnancy are areas which fall in the realm of
privacy. Similarly, the freedom to choose either to work or
not and the freedom to choose the nature of the work are
areas of private decision-making process. The right to
travel freely within the country or go abroad is an area
falling within the right to privacy. The text of our
Constitution recognised the freedom to travel throughout
the country under Article 19(1)(d). This Court has already
recognised that such a right takes within its sweep the right
to travel abroad. [Maneka Gandhi v. Union of India, (1978)
1 SCC 248] A person's freedom to choose the place of his
residence once again is a part of his right to privacy
[Williams v. Fears, 1900 SCC OnLine US SC 211 : 45 L Ed
186 : 179 US 270 (1900)—“8. Undoubtedly the right of
locomotion, the right to remove from one place to another
according to inclination, is an attribute of personal
liberty….” (SCC OnLine US SC para 8)] recognised by the
Constitution of India under Article 19(1)(e) though the
predominant purpose of enumerating the abovementioned
two freedoms in Article 19(1) is to disable both the federal
and State Governments from creating barriers which are
incompatible with the federal nature of our country and its
Constitution. The choice of appearance and apparel are
also aspects of the right to privacy. The freedom of certain
groups of subjects to determine their appearance and
apparel (such as keeping long hair and wearing a turban)
are protected not as a part of the right to privacy but as a
part of their religious belief. Such a freedom need not
necessarily be based on religious beliefs falling under
Article 25. Informational traces are also an area which is
the subject-matter of huge debate in various jurisdictions
falling within the realm of the right to privacy, such data is
as personal as that of the choice of appearance and
apparel. Telephone tappings and internet hacking by State,
of personal data is another area which falls within the realm
of privacy. The instant reference arises out of such an
attempt by the Union of India to collect biometric data
regarding all the residents of this country. The
abovementioned are some of the areas where some
interest of privacy exists. The examples given aboveWrit Petition (Civil) No. 494 of 2012 connected matters Page 144 of 567
indicate to some extent the nature and scope of the right to
privacy.374. I do not think that anybody in this country would like to
have the officers of the State intruding into their homes or
private property at will or soldiers quartered in their houses
without their consent. I do not think that anybody would like
to be told by the State as to what they should eat or how
they should dress or whom they should be associated with
either in their personal, social or political life. Freedom of
social and political association is guaranteed to citizens
under Article 19(1)(c). Personal association is still a
doubtful area. [The High Court of A.P. held that Article 19(1)(c) would take within its sweep the matrimonial association
in T. Sareetha v. T. Venkata Subbaiah, 1983 SCC OnLine
AP 90 : AIR 1983 AP 356. However, this case was later
overruled by this Court in Saroj Rani v. Sudarshan Kumar
Chadha, (1984) 4 SCC 90 : AIR 1984 SC 1562.] The
decision-making process regarding the freedom of
association, freedoms of travel and residence are purely
private and fall within the realm of the right to privacy. It is
one of the most intimate decisions.375. All liberal democracies believe that the State should
not have unqualified authority to intrude into certain
aspects of human life and that the authority should be
limited by parameters constitutionally fixed. Fundamental
rights are the only constitutional firewall to prevent State's
interference with those core freedoms constituting liberty of
a human being. The right to privacy is certainly one of the
core freedoms which is to be defended. It is part of liberty
within the meaning of that expression in Article 21.376. I am in complete agreement with the conclusions
recorded by my learned Brothers in this regard.”(iii) Privacy is intrinsic to freedom, liberty and dignity: The right
to privacy is inherent to the liberties guaranteed by Part-III of the
Constitution and privacy is an element of human dignity. The
fundamental right to privacy derives from Part-III of the
Constitution and recognition of this right does not require a
Writ Petition (Civil) No. 494 of 2012 connected matters Page 145 of 567
constitutional amendment. Privacy is more than merely aderivative constitutional right. It is the necessary basis of rights
guaranteed in the text of the Constitution. Discussion in this
behalf is captured in the following passages:
Dr. D.Y. Chandrachud, J. :
127. The submission that recognising the right to privacy is
an exercise which would require a constitutional
amendment and cannot be a matter of judicial
interpretation is not an acceptable doctrinal position. The
argument assumes that the right to privacy is independent
of the liberties guaranteed by Part III of the Constitution.
There lies the error. The right to privacy is an element of
human dignity. The sanctity of privacy lies in its functional
relationship with dignity. Privacy ensures that a human
being can lead a life of dignity by securing the inner
recesses of the human personality from unwanted
intrusion. Privacy recognises the autonomy of the individual
and the right of every person to make essential choices
which affect the course of life. In doing so privacy
recognises that living a life of dignity is essential for a
human being to fulfill the liberties and freedoms which are
the cornerstone of the Constitution. To recognise the value
of privacy as a constitutional entitlement and interest is not
to fashion a new fundamental right by a process of
amendment through judicial fiat. Neither are the Judges nor
is the process of judicial review entrusted with the
constitutional responsibility to amend the Constitution. But
judicial review certainly has the task before it of
determining the nature and extent of the freedoms
available to each person under the fabric of those
constitutional guarantees which are protected. Courts have
traditionally discharged that function and in the context of
Article 21 itself, as we have already noted, a panoply of
protections governing different facets of a dignified
existence has been held to fall within the protection of
Article 21.S.A. Bobde, J. :
416. There is nothing unusual in the judicial enumeration of
one right on the basis of another under the Constitution. In
Writ Petition (Civil) No. 494 of 2012 connected matters Page 146 of 567
the case of Article 21's guarantee of “personal liberty”, this
practice is only natural if Salmond's formulation of liberty as
“incipient rights” [ P.J. Fitzgerald, Salmond on
Jurisprudence at p. 228.] is correct. By the process of
enumeration, constitutional courts merely give a name and
specify the core of guarantees already present in the
residue of constitutional liberty. Over time, the Supreme
Court has been able to imply by its interpretative process
that several fundamental rights including the right to
privacy emerge out of expressly stated fundamental rights.
In Unni Krishnan, J.P. v. State of A.P. [Unni Krishnan, J.P. v.
State of A.P., (1993) 1 SCC 645] , a Constitution Bench of
this Court held that “several unenumerated rights fall within
Article 21 since personal liberty is of widest amplitude”
[Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645 at p.
669, para 29] on the way to affirming the existence of a
right to education. It went on to supply the following
indicative list of such rights, which included the right to
privacy: (SCC pp. 669-70, para 30)“30. The following rights are held to be covered under
Article 21:1. The right to go abroad. Satwant Singh v. D.
Ramarathnam [Satwant Singh Sawhney v. D.Ramarathnam, (1967) 3 SCR 525 : AIR 1967 SC
1836] .2. The right to privacy. Gobind v. State of M.P.
[Gobind v. State of M.P., (1975) 2 SCC 148 : 1975
SCC (Cri) 468] In this case reliance was placed on
the American decision in Griswold v. Connecticut
[Griswold v. Connecticut, 1965 SCC OnLine US SC
124 : 14 L Ed 2d 510 : 85 S Ct 1678 : 381 US 479
(1965)] , US at p. 510.3. The right against solitary confinement. Sunil Batra
(1) v. Delhi Admn. [Sunil Batra v. Delhi Admn., (1978)
4 SCC 494 : 1979 SCC (Cri) 155] , SCC at p. 545.4. The right against bar fetters. Charles Sobhraj v.
Supt., Central Jail [Charles Sobraj v. Supt., Central
Jail, (1978) 4 SCC 104 : 1978 SCC (Cri) 542].5. The right to legal aid. M.H. Hoskot v. State of
Maharashtra [M.H. Hoskot v. State of Maharashtra,
(1978) 3 SCC 544 : 1978 SCC (Cri) 468].Writ Petition (Civil) No. 494 of 2012 connected matters Page 147 of 567
6. The right to speedy trial. Hussainara Khatoon (1)
v. State of Bihar[Hussainara Khatoon (1) v. State of
Bihar, (1980) 1 SCC 81 : 1980 SCC (Cri) 23] .7. The right against handcuffing. Prem Shankar v.
Delhi Admn. [Prem Shankar Shukla v. Delhi Admn.,
(1980) 3 SCC 526 : 1980 SCC (Cri) 815]8. The right against delayed execution. T.V.
Vatheeswaran v. State of T.N. [T.V. Vatheeswaran v.
State of T.N., (1983) 2 SCC 68 : 1983 SCC (Cri) 342]9. The right against custodial violence. Sheela Barse
v. State of Maharashtra [Sheela Barse v. State of
Maharashtra, (1983) 2 SCC 96 : 1983 SCC (Cri) 353].10. The right against public hanging. Attorney
General of India v. Lachma Devi [Attorney General of
India v. Lachma Devi, 1989 Supp (1) SCC 264 : 1989
SCC (Cri) 413].11. Doctor's assistance. Paramananda Katara v.
Union of India [Parmanand Katara v. Union of India,
(1989) 4 SCC 286 : 1989 SCC (Cri) 721].12. Shelter. Santistar Builders v. Narayan Khimalal
Totame [Shantistar Builders v. Narayan Khimalal
Totame, (1990) 1 SCC 520] .”In the case of privacy, the case for judicial enumeration is
especially strong. It is no doubt a fair implication from
Article 21, but also more. Privacy is a right or condition,
“logically presupposed” [ Laurence H. Tribe And Michael C.
Dorf, “Levels Of Generality in the Definition of Rights”, 57 U
CHI L REV 1057 (1990) at p. 1068.] by rights expressly
recorded in the constitutional text, if they are to make
sense. As a result, privacy is more than merely a derivative
constitutional right. It is the necessary and unavoidable
logical entailment of rights guaranteed in the text of the
Constitution.R.F. Nariman, J:
482. Shri Sundaram has argued that rights have to be
traced directly to those expressly stated in the fundamental
rights chapter of the Constitution for such rights to receive
Writ Petition (Civil) No. 494 of 2012 connected matters Page 148 of 567
protection, and privacy is not one of them. It will be noticed
that the dignity of the individual is a cardinal value, which is
expressed in the Preamble to the Constitution. Such dignity
is not expressly stated as a right in the fundamental rights
chapter, but has been read into the right to life and
personal liberty. The right to live with dignity is expressly
read into Article 21 by the judgment in Jolly George
Varghesev. Bank of Cochin [Jolly George Varghese v.
Bank of Cochin, (1980) 2 SCC 360] , at para 10. Similarly,
the right against bar fetters and handcuffing being integral
to an individual's dignity was read into Article 21 by the
judgment in Sunil Batra v. Delhi Admn. [Sunil Batra v. Delhi
Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] , at paras
192, 197-B, 234 and 241 and Prem Shankar Shukla v.
Delhi Admn. [Prem Shankar Shukla v. Delhi Admn., (1980)
3 SCC 526 : 1980 SCC (Cri) 815] , at paras 21 and 22. It is
too late in the day to canvas that a fundamental right must
be traceable to express language in Part III of the
Constitution. As will be pointed out later in this judgment, a
Constitution has to be read in such a way that words
deliver up principles that are to be followed and if this is
kept in mind, it is clear that the concept of privacy is
contained not merely in personal liberty, but also in the
dignity of the individual.”(iv) Privacy has both positive and negative content: The
negative content restrains the State from committing an intrusion
upon the life and personal liberty of a citizen. Its positive content
imposes an obligation on the State to take all necessary
measures to protect the privacy of the individual.
Dr. D.Y. Chandrachud, J.:
326. Privacy has both positive and negative content. The
negative content restrains the State from committing an
intrusion upon the life and personal liberty of a citizen. Its
positive content imposes an obligation on the State to take
all necessary measures to protect the privacy of the
individual.”Writ Petition (Civil) No. 494 of 2012 connected matters Page 149 of 567
(v) Informational Privacy is a facet of right to privacy: The old
adage that ‘knowledge is power’ has stark implications for the
position of individual where data is ubiquitous, an all-
encompassing presence. Every transaction of an individual user
leaves electronic tracks without her knowledge. Individually these
information silos may seem inconsequential. In aggregation,
information provides a picture of the beings. The challenges
which big data poses to privacy emanate from both State and
non-State entities. This proposition is described in the following
manner:
Dr. D.Y. Chandrachud, J.:
300. Ours is an age of information. Information is
knowledge. The old adage that “knowledge is power” has
stark implications for the position of the individual where
data is ubiquitous, an all-encompassing presence.
Technology has made life fundamentally interconnected.
The internet has become all-pervasive as individuals spend
more and more time online each day of their lives.
Individuals connect with others and use the internet as a
means of communication. The internet is used to carry on
business and to buy goods and services. Individuals
browse the web in search of information, to send e-mails,
use instant messaging services and to download movies.
Online purchases have become an efficient substitute for
the daily visit to the neighbouring store. Online banking has
redefined relationships between bankers and customers.
Online trading has created a new platform for the market in
securities. Online music has refashioned the radio. Online
books have opened up a new universe for the bibliophile.
The old-fashioned travel agent has been rendered
redundant by web portals which provide everything from
restaurants to rest houses, airline tickets to art galleries,
museum tickets to music shows. These are but a few of the
reasons people access the internet each day of their lives.Writ Petition (Civil) No. 494 of 2012 connected matters Page 150 of 567
Yet every transaction of an individual user and every site
that she visits, leaves electronic tracks generally without
her knowledge. These electronic tracks contain powerful
means of information which provide knowledge of the sort
of person that the user is and her interests [See Francois
Nawrot, Katarzyna Syska and Przemyslaw Switalski,
“Horizontal Application of Fundamental Rights — Right to
Privacy on the Internet”, 9th Annual European
Constitutionalism Seminar (May 2010), University of
Warsaw, available at
content/uploads/2010/04/9_Horizontal_Application_of_Fun
damental_Rights.pdf.] . Individually, these information
silos may seem inconsequential. In aggregation, they
disclose the nature of the personality: food habits,
language, health, hobbies, sexual preferences, friendships,
ways of dress and political affiliation. In aggregation,
information provides a picture of the being: of things which
matter and those that do not, of things to be disclosed and
those best hidden.xx xx xx
304. Data mining processes together with knowledge
discovery can be combined to create facts about
individuals. Metadata and the internet of things have the
ability to redefine human existence in ways which are yet
fully to be perceived. This, as Christina Moniodis states in
her illuminating article, results in the creation of new
knowledge about individuals; something which even she or
he did not possess. This poses serious issues for the
Court. In an age of rapidly evolving technology it is
impossible for a Judge to conceive of all the possible uses
of information or its consequences:“… The creation of new knowledge complicates data
privacy law as it involves information the individual
did not possess and could not disclose, knowingly or
otherwise. In addition, as our State becomes an
“information State” through increasing reliance on
information—such that information is described as the
“lifeblood that sustains political, social, and business
decisions. It becomes impossible to conceptualize all
of the possible uses of information and resulting
harms. Such a situation poses a challenge for courts
who are effectively asked to anticipate and remedy
invisible, evolving harms.” [ Christina P. Moniodis,
“Moving from Nixon to NASA: Privacy's Second
Writ Petition (Civil) No. 494 of 2012 connected matters Page 151 of 567
Strand — A Right to Informational Privacy”, Yale
Journal of Law and Technology (2012), Vol. 15 (1), at
p. 154.]The contemporary age has been aptly regarded as “an era
of ubiquitous dataveillance, or the systematic monitoring of
citizen's communications or actions through the use of
information technology” [Yvonne McDermott,
“Conceptualizing the Right to Data Protection in an Era of
Big Data”, Big Data and Society (2017), at p. 1.] . It is also
an age of “big data” or the collection of data sets. These
data sets are capable of being searched; they have
linkages with other data sets; and are marked by their
exhaustive scope and the permanency of collection. [Id, at
pp. 1 and 4.] The challenges which big data poses to
privacy interests emanate from State and non-State
entities. Users of wearable devices and social media
networks may not conceive of themselves as having
volunteered data but their activities of use and engagement
result in the generation of vast amounts of data about
individual lifestyles, choices and preferences. Yvonne
McDermott speaks about the quantified self in eloquent
terms:“… The rise in the so-called ‘quantified self’, or the
self-tracking of biological, environmental, physical, or
behavioural information through tracking devices,
Internet-of-things devices, social network data and
other means (?Swan.2013) may result in information
being gathered not just about the individual user, but
about people around them as well. Thus, a solely
consent-based model does not entirely ensure the
protection of one's data, especially when data
collected for one purpose can be repurposed for
another.” [Id, at p. 4.]xx xx xx
328. Informational privacy is a facet of the right to privacy.
The dangers to privacy in an age of information can
originate not only from the State but from non-State actors
as well. We commend to the Union Government the need
to examine and put into place a robust regime for data
protection. The creation of such a regime requires a careful
and sensitive balance between individual interests and
legitimate concerns of the State. The legitimate aims of the
State would include for instance protecting national
Writ Petition (Civil) No. 494 of 2012 connected matters Page 152 of 567
security, preventing and investigating crime, encouraging
innovation and the spread of knowledge, and preventing
the dissipation of social welfare benefits. These are matters
of policy to be considered by the Union Government while
designing a carefully structured regime for the protection of
the data. Since the Union Government has informed the
Court that it has constituted a Committee chaired by
Hon'ble Shri Justice B.N. Srikrishna, former Judge of this
Court, for that purpose, the matter shall be dealt with
appropriately by the Union Government having due regard
to what has been set out in this judgment.S.K. Kaul, J.:
585. The growth and development of technology has
created new instruments for the possible invasion of
privacy by the State, including through surveillance,
profiling and data collection and processing. Surveillance is
not new, but technology has permitted surveillance in ways
that are unimaginable. Edward Snowden shocked the
world with his disclosures about global surveillance. States
are utilising technology in the most imaginative ways
particularly in view of increasing global terrorist attacks and
heightened public safety concerns. One such technique
being adopted by the States is “profiling”. The European
Union Regulation of 2016 [ Regulation No. (EU) 2016/679
of the European Parliament and of the Council of 27-4-
2016 on the protection of natural persons with regard to the
processing of personal data and on the free movement of
such data, and repealing Directive No. 95/46/EC (General
Data Protection Regulation).] on data privacy defines
“profiling” as any form of automated processing of personal
data consisting of the use of personal data to evaluate
certain personal aspects relating to a natural person, in
particular to analyse or predict aspects concerning that
natural person's performance at work, economic situation,
health, personal preferences, interests, reliability,
behaviour, location or movements [ Regulation No. (EU)
2016/679 of the European Parliament and of the Council of
27-4-2016 on the protection of natural persons with regard
to the processing of personal data and on the free
movement of such data, and repealing Directive No.
95/46/EC (General Data Protection Regulation).] . Such
profiling can result in discrimination based on religion,
ethnicity and caste. However, “profiling” can also be used
to further public interest and for the benefit of national
security.Writ Petition (Civil) No. 494 of 2012 connected matters Page 153 of 567
586. The security environment, not only in our country, but
throughout the world makes the safety of persons and the
State a matter to be balanced against this right to privacy.587. The capacity of non-State actors to invade the home
and privacy has also been enhanced. Technological
development has facilitated journalism that is more
intrusive than ever before.588. Further, in this digital age, individuals are constantly
generating valuable data which can be used by non-State
actors to track their moves, choices and preferences. Data
is generated not just by active sharing of information, but
also passively, with every click on the “world wide web”.
We are stated to be creating an equal amount of
information every other day, as humanity created from the
beginning of recorded history to the year 2003 — enabled
by the “world wide web”. [ Michael L. Rustad,
SannaKulevska, “Reconceptualizing the right to be
forgotten to enable transatlantic data flow”, (2015) 28 Harv
JL Tech 349.]589. Recently, it was pointed out that “ “Uber”, the world's
largest taxi company, owns no vehicles. “Facebook”, the
world's most popular media owner, creates no content.
“Alibaba”, the most valuable retailer, has no inventory. And
“Airbnb”, the world's largest accommodation provider, owns
no real estate. Something interesting is happening.” [ Tom
Goodwin “The Battle is for Customer Interface”,
https://techcrunch.com/2015/03/03/in-the-age-of-
disintermediation-the-battle-is-all-for-the-customer-
interface/.] “Uber” knows our whereabouts and the places
we frequent. “Facebook” at the least, knows who we are
friends with. “Alibaba” knows our shopping habits. “Airbnb”
knows where we are travelling to. Social network providers,
search engines, e-mail service providers, messaging
applications are all further examples of non-State actors
that have extensive knowledge of our movements, financial
transactions, conversations — both personal and
professional, health, mental state, interest, travel locations,
fares and shopping habits. As we move towards becoming
a digital economy and increase our reliance on internet-
based services, we are creating deeper and deeper digital
footprints — passively and actively.Writ Petition (Civil) No. 494 of 2012 connected matters Page 154 of 567
590. These digital footprints and extensive data can be
analysed computationally to reveal patterns, trends, and
associations, especially relating to human behaviour and
interactions and hence, is valuable information. This is the
age of “big data”. The advancement in technology has
created not just new forms of data, but also new methods
of analysing the data and has led to the discovery of new
uses for data. The algorithms are more effective and the
computational power has magnified exponentially. A large
number of people would like to keep such search history
private, but it rarely remains private, and is collected, sold
and analysed for purposes such as targeted advertising. Of
course, “big data” can also be used to further public
interest. There may be cases where collection and
processing of big data is legitimate and proportionate,
despite being invasive of privacy otherwise.591. Knowledge about a person gives a power over that
person. The personal data collected is capable of effecting
representations, influencing decision-making processes
and shaping behaviour. It can be used as a tool to exercise
control over us like the “big brother” State exercised. This
can have a stultifying effect on the expression of dissent
and difference of opinion, which no democracy can afford.592. Thus, there is an unprecedented need for regulation
regarding the extent to which such information can be
stored, processed and used by non-State actors. There is
also a need for protection of such information from the
State. Our Government was successful in compelling
Blackberry to give to it the ability to intercept data sent over
Blackberry devices. While such interception may be
desirable and permissible in order to ensure national
security, it cannot be unregulated. [ Kadhim Shubber,
“Blackberry gives Indian Government ability to intercept
messages” published by Wired on 11-7-2013
http://www.wired.co.uk/article/blackberry-india.]593. The concept of “invasion of privacy” is not the early
conventional thought process of “poking ones nose in
another person's affairs”. It is not so simplistic. In today's
world, privacy is a limit on the Government's power as well
as the power of private sector entities. [ Daniel Solove, “10
Reasons Why Privacy Matters” published on 20-1-2014matters/.]
Writ Petition (Civil) No. 494 of 2012 connected matters Page 155 of 567
594. George Orwell created a fictional State in Nineteen
Eighty-Four. Today, it can be a reality. The technological
development today can enable not only the State, but also
big corporations and private entities to be the “big brother”.xx xx xx
629. The right of an individual to exercise control over his
personal data and to be able to control his/her own life
would also encompass his right to control his existence on
the internet. Needless to say that this would not be an
absolute right. The existence of such a right does not imply
that a criminal can obliterate his past, but that there are
variant degrees of mistakes, small and big, and it cannot
be said that a person should be profiled to the nth extent
for all and sundry to know.630. A high school teacher was fired after posting on her
Facebook page that she was “so not looking forward to
another [school] year” since the school district's residents
were “arrogant and snobby”. A flight attendant was fired for
posting suggestive photos of herself in the company's
uniform. [ Patricia Sánchez Abril, “Blurred Boundaries:
Social Media Privacy and the Twenty-First-Century
Employee”, 49 Am Bus LJ 63 at p. 69 (2012).] In the pre-
digital era, such incidents would have never occurred.
People could then make mistakes and embarrass
themselves, with the comfort that the information will be
typically forgotten over time.631. The impact of the digital age results in information on
the internet being permanent. Humans forget, but the
internet does not forget and does not let humans forget.
Any endeavour to remove information from the internet
does not result in its absolute obliteration. The footprints
remain. It is thus, said that in the digital world preservation
is the norm and forgetting a struggle [ Ravi Antani, “ THE
RESISTANCE OF MEMORY : COULD THE EUROPEAN UNION'S
RIGHT TO BE FORGOTTEN EXIST IN THE UNITED STATES?”, 30
Berkeley Tech LJ 1173 (2015).] .632. The technology results almost in a sort of a
permanent storage in some way or the other making it
difficult to begin life again giving up past mistakes. People
are not static, they change and grow through their lives.
They evolve. They make mistakes. But they are entitled to
re-invent themselves and reform and correct their
Writ Petition (Civil) No. 494 of 2012 connected matters Page 156 of 567
mistakes. It is privacy which nurtures this ability and
removes the shackles of unadvisable things which may
have been done in the past.633. Children around the world create perpetual digital
footprints on social network websites on a 24/7 basis as
they learn their “ABCs”: Apple, Bluetooth and chat followed
by download, e-mail, Facebook, Google, Hotmail and
Instagram. [ Michael L. Rustad, SannaKulevska,
“Reconceptualizing the right to be forgotten to enable
transatlantic data flow”, (2015) 28 Harv JL Tech 349.]
They should not be subjected to the consequences of their
childish mistakes and naivety, their entire life. Privacy of
children will require special protection not just in the
context of the virtual world, but also the real world.634. People change and an individual should be able to
determine the path of his life and not be stuck only on a
path of which he/she treaded initially. An individual should
have the capacity to change his/her beliefs and evolve as a
person. Individuals should not live in fear that the views
they expressed will forever be associated with them and
thus refrain from expressing themselves.635. Whereas this right to control dissemination of personal
information in the physical and virtual space should not
amount to a right of total eraser of history, this right, as a
part of the larger right to privacy, has to be balanced
against other fundamental rights like the freedom of
expression, or freedom of media, fundamental to a
democratic society.636. Thus, the European Union Regulation of 2016
[Regulation No. (EU) 2016/679 of the European Parliament
and of the Council of 27-4-2016 on the protection of natural
persons with regard to the processing of personal data and
on the free movement of such data, and repealing Directive
No. 95/46/EC (General Data Protection Regulation).] has
recognised what has been termed as “the right to be
forgotten”. This does not mean that all aspects of earlier
existence are to be obliterated, as some may have a social
ramification. If we were to recognise a similar right, it would
only mean that an individual who is no longer desirous of
his personal data to be processed or stored, should be
able to remove it from the system where the personal
data/information is no longer necessary, relevant, or is
incorrect and serves no legitimate interest. Such a right
Writ Petition (Civil) No. 494 of 2012 connected matters Page 157 of 567
cannot be exercised where the information/data is
necessary, for exercising the right of freedom of expression
and information, for compliance with legal obligations, for
the performance of a task carried out in public interest, on
the grounds of public interest in the area of public health,
for archiving purposes in the public interest, scientific or
historical research purposes or statistical purposes, or for
the establishment, exercise or defence of legal claims.
Such justifications would be valid in all cases of breach of
privacy, including breaches of data privacy.”(vi) Right to privacy cannot be impinged without a just, fair and
reasonable law: It has to fulfill the test of proportionality i.e. (i)
existence of a law; (ii) must serve a legitimate State aim; and (iii)
proportionality.
“Dr. D.Y. Chandrachud, J. :
310. While it intervenes to protect legitimate State
interests, the State must nevertheless put into place a
robust regime that ensures the fulfilment of a threefold
requirement. These three requirements apply to all
restraints on privacy (not just informational privacy). They
emanate from the procedural and content-based mandate
of Article 21. The first requirement that there must be a law
in existence to justify an encroachment on privacy is an
express requirement of Article 21. For, no person can be
deprived of his life or personal liberty except in accordance
with the procedure established by law. The existence of law
is an essential requirement. Second, the requirement of a
need, in terms of a legitimate State aim, ensures that the
nature and content of the law which imposes the restriction
falls within the zone of reasonableness mandated by Article
14, which is a guarantee against arbitrary State action. The
pursuit of a legitimate State aim ensures that the law does
not suffer from manifest arbitrariness. Legitimacy, as a
postulate, involves a value judgment. Judicial review does
not reappreciate or second guess the value judgment of
the legislature but is for deciding whether the aim which is
sought to be pursued suffers from palpable or manifest
arbitrariness. The third requirement ensures that the
means which are adopted by the legislature are
Writ Petition (Civil) No. 494 of 2012 connected matters Page 158 of 567
proportional to the object and needs sought to be fulfilled
by the law. Proportionality is an essential facet of the
guarantee against arbitrary State action because it ensures
that the nature and quality of the encroachment on the right
is not disproportionate to the purpose of the law. Hence,
the threefold requirement for a valid law arises out of the
mutual interdependence between the fundamental
guarantees against arbitrariness on the one hand and the
protection of life and personal liberty, on the other. The
right to privacy, which is an intrinsic part of the right to life
and liberty, and the freedoms embodied in Part III is subject
to the same restraints which apply to those freedoms.311. Apart from national security, the State may have
justifiable reasons for the collection and storage of data. In
a social welfare State, the Government embarks upon
programmes which provide benefits to impoverished and
marginalised sections of society. There is a vital State
interest in ensuring that scarce public resources are not
dissipated by the diversion of resources to persons who do
not qualify as recipients. Allocation of resources for human
development is coupled with a legitimate concern that the
utilisation of resources should not be siphoned away for
extraneous purposes. 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 utilised for legitimate purposes of
the State and ought not to be utilised unauthorisedly for
extraneous purposes. This will ensure that the legitimate
concerns of the State are duly safeguarded while, at the
same time, protecting privacy concerns. Prevention and
investigation of crime and protection of the revenue are
among the legitimate aims of the State. Digital platforms
are a vital tool of ensuring good governance in a social
welfare State. Information technology—legitimately
deployed is a powerful enabler in the spread of innovation
and knowledge.312. A distinction has been made in contemporary
literature between anonymity on one hand and privacy on
the other. [See in this connection, Jeffrey M. Skopek,
“Reasonable Expectations of Anonymity”, Virginia Law
Review (2015), Vol. 101, at pp. 691-762.] Both anonymity
and privacy prevent others from gaining access to pieces
of personal information yet they do so in opposite ways.
Privacy involves hiding information whereas anonymity
Writ Petition (Civil) No. 494 of 2012 connected matters Page 159 of 567
involves hiding what makes it personal. An unauthorised
parting of the medical records of an individual which have
been furnished to a hospital will amount to an invasion of
privacy. On the other hand, the State may assert a
legitimate interest in analysing data borne from hospital
records to understand and deal with a public health
epidemic such as malaria or dengue to obviate a serious
impact on the population. If the State preserves the
anonymity of the individual it could legitimately assert a
valid State interest in the preservation of public health to
design appropriate policy interventions on the basis of the
data available to it.313. Privacy has been held to be an intrinsic element of the
right to life and personal liberty under Article 21 and as a
constitutional value which is embodied in the fundamental
freedoms embedded in Part III of the Constitution. Like the
right to life and liberty, privacy is not absolute. The
limitations which operate on the right to life and personal
liberty would operate on the right to privacy. Any
curtailment or deprivation of that right would have to take
place under a regime of law. The procedure established by
law must be fair, just and reasonable. The law which
provides for the curtailment of the right must also be
subject to constitutional safeguards.xx xx xx
325. Like other rights which form part of the fundamental
freedoms protected by Part III, including the right to life and
personal liberty under Article 21, privacy is not an absolute
right. A law which encroaches upon privacy will have to
withstand the touchstone of permissible restrictions on
fundamental rights. In the context of Article 21 an invasion
of privacy must be justified on the basis of a law which
stipulates a procedure which is fair, just and reasonable.
The law must also be valid with reference to the
encroachment on life and personal liberty under Article 21.
An invasion of life or personal liberty must meet the
threefold requirement of (i) legality, which postulates the
existence of law; (ii) need, defined in terms of a legitimate
State aim; and (iii) proportionality which ensures a rational
nexus between the objects and the means adopted to
achieve them.S.A. Bobde, J. :
Writ Petition (Civil) No. 494 of 2012 connected matters Page 160 of 567
426. There is no doubt that privacy is integral to the several
fundamental rights recognised by Part III of the Constitution
and must be regarded as a fundamental right itself. The
relationship between the right to privacy and the particular
fundamental right (or rights) involved would depend on the
action interdicted by a particular law. At a minimum, since
privacy is always integrated with personal liberty, the
constitutionality of the law which is alleged to have invaded
into a rights bearer's privacy must be tested by the same
standards by which a law which invades personal liberty
under Article 21 is liable to be tested. Under Article 21, the
standard test at present is the rationality review expressed
in Maneka Gandhi case [Maneka Gandhi v. Union of India,
(1978) 1 SCC 248] . This requires that any procedure by
which the State interferes with an Article 21 right to be “fair,
just and reasonable, not fanciful, oppressive or arbitrary”
[Maneka Gandhi v. Union of India, (1978) 1 SCC 248 at p.
323, para 48].R.F. Nariman, J. :
526. But this is not to say that such a right is absolute. This
right is subject to reasonable regulations made by the State
to protect legitimate State interests or public interest.
However, when it comes to restrictions on this right, the drill
of various articles to which the right relates must be
scrupulously followed. For example, if the restraint on
privacy is over fundamental personal choices that an
individual is to make, State action can be restrained under
Article 21 read with Article 14 if it is arbitrary and
unreasonable; and under Article 21 read with Article 19(1)(a) only if it relates to the subjects mentioned in Article
19(2) and the tests laid down by this Court for such
legislation or subordinate legislation to pass muster under
the said article. Each of the tests evolved by this Court, qua
legislation or executive action, under Article 21 read with
Article 14; or Article 21 read with Article 19(1)(a) in the
aforesaid examples must be met in order that State action
pass muster. In the ultimate analysis, the balancing act that
is to be carried out between individual, societal and State
interests must be left to the training and expertise of the
judicial mind.S.K. Kaul, J. :
638. The concerns expressed on behalf of the petitioners
arising from the possibility of the State infringing the right to
Writ Petition (Civil) No. 494 of 2012 connected matters Page 161 of 567
privacy can be met by the test suggested for limiting the
discretion of the State:“(i) The action must be sanctioned by law;
(ii) The proposed action must be necessary in a democratic
society for a legitimate aim;(iii) The extent of such interference must be proportionate
to the need for such interference;(iv) There must be procedural guarantees against abuse of
such interference.”Chelameswar, J.:
377. It goes without saying that no legal right can be
absolute. Every right has limitations. This aspect of the
matter is conceded at the Bar. Therefore, even a
fundamental right to privacy has limitations. The limitations
are to be identified on case-to-case basis depending upon
the nature of the privacy interest claimed. There are
different standards of review to test infractions of
fundamental rights. While the concept of reasonableness
overarches Part III, it operates differently across Articles
(even if only slightly differently across some of them).
Having emphatically interpreted the Constitution's liberty
guarantee to contain a fundamental right to privacy, it is
necessary for me to outline the manner in which such a
right to privacy can be limited. I only do this to indicate the
direction of the debate as the nature of limitation is not at
issue here.378. To begin with, the options canvassed for limiting the
right to privacy include an Article 14 type reasonableness
enquiry [A challenge under Article 14 can be made if there
is an unreasonable classification and/or if the impugned
measure is arbitrary. The classification is unreasonable if
there is no intelligible differentia justifying the classification
and if the classification has no rational nexus with the
objective sought to be achieved. Arbitrariness, which was
first explained at para 85 of E.P. Royappa v. State of T.N.,
(1974) 4 SCC 3 : 1974 SCC (LS) 165 : AIR 1974 SC 555,
is very simply the lack of any reasoning.] ; limitation as per
the express provisions of Article 19; a just, fair and
reasonable basis (that is, substantive due process) for
limitation per Article 21; and finally, a just, fair and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 162 of 567
reasonable standard per Article 21 plus the amorphous
standard of “compelling State interest”. The last of these
four options is the highest standard of scrutiny [ A tiered
level of scrutiny was indicated in what came to be known
as the most famous footnote in constitutional law, that is, fn
4 in United States v. Carolene Products Co., 1938 SCC
OnLine US SC 93 : 82 L Ed 1234 : 304 US 144 (1938).
Depending on the graveness of the right at stake, the court
adopts a correspondingly rigorous standard of scrutiny.]
that a court can adopt. It is from this menu that a standard
of review for limiting the right to privacy needs to be
chosen.379. At the very outset, if a privacy claim specifically flows
only from one of the expressly enumerated provisions
under Article 19, then the standard of review would be as
expressly provided under Article 19. However, the
possibility of a privacy claim being entirely traceable to
rights other than Article 21 is bleak. Without discounting
that possibility, it needs to be noted that Article 21 is the
bedrock of the privacy guarantee. If the spirit of liberty
permeates every claim of privacy, it is difficult, if not
impossible, to imagine that any standard of limitation other
than the one under Article 21 applies. It is for this reason
that I will restrict the available options to the latter two from
the above described four.380. The just, fair and reasonable standard of review under
Article 21 needs no elaboration. It has also most commonly
been used in cases dealing with a privacy claim hitherto.
[District Registrar and Collector v. Canara Bank, (2005) 1
SCC 496 : AIR 2005 SC 186] , [State of Maharashtra v.
Bharat Shanti Lal Shah, (2008) 13 SCC 5] Gobind [Gobind
v. State of M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468]
resorted to the compelling State interest standard in
addition to the Article 21 reasonableness enquiry. From the
United States, where the terminology of “compelling State
interest” originated, a strict standard of scrutiny comprises
two things—a “compelling State interest” and a
requirement of “narrow tailoring” (narrow tailoring means
that the law must be narrowly framed to achieve the
objective). As a term, “compelling State interest” does not
have definite contours in the US. Hence, it is critical that
this standard be adopted with some clarity as to when and
in what types of privacy claimsit is to be used. Only in
privacy claims which deserve the strictest scrutiny is the
standard of compelling State interest to be used. As for
Writ Petition (Civil) No. 494 of 2012 connected matters Page 163 of 567
others, the just, fair and reasonable standard under Article
21 will apply. When the compelling State interest standard
is to be employed, must depend upon the context of
concrete cases. However, this discussion sets the ground
rules within which a limitation for the right to privacy is to be
found.”82) In view of the aforesaid detailed discussion in all the opinions
penned by six Hon’ble Judges, it stands established, without any
pale of doubt, that privacy has now been treated as part of
fundamental rights. The Court has held, in no uncertain terms,
that privacy has always been a natural right which gives an
individual freedom to exercise control over his or her personality.
The judgment further affirms three aspects of the fundamental
right to privacy, namely:
(i) intrusion with an individual’s physical body;
(ii) informational privacy; and
(iii) privacy of choice.
83) As succinctly put by Nariman, J. first aspect involves the person
himself/herself and guards a person’s rights relatable to his/her
physical body thereby controlling the uncalled invasion by the
State. Insofar as the second aspect, namely, informational
privacy is concerned, it does not deal with a person’s body but
deals with a person’s mind. In this manner, it protects a person
by giving her control over the dissemination of material that is
Writ Petition (Civil) No. 494 of 2012 connected matters Page 164 of 567
personal to her and disallowing unauthorised use of suchinformation by the State. Third aspect of privacy relates to
individual’s autonomy by protecting her fundamental personal
choices. These aspects have functional connection and
relationship with dignity. In this sense, privacy is a postulate of
human dignity itself. Human dignity has a constitutional value
and its significance is acknowledged by the Preamble. Further,
by catena of judgments, human dignity is treated as a
fundamental right and as a facet not only of Article 21 but that of
right to equality (Article 14) and also part of bouquet of freedoms
stipulated in Article 19. Therefore, privacy as a right is intrinsic of
freedom, liberty and dignity. Viewed in this manner, one can
trace positive and negative contents of privacy. The negative
content restricts the State from committing an intrusion upon the
life and personal liberty of a citizen. Its positive content imposes
an obligation on the State to take all necessary measures to
protect the privacy of the individual.
84) A brief summation of the judgment on privacy would indicate that
privacy is treated as fundamental right. It is predicated on the
basis that privacy is a postulate of dignity and the concept of
dignity can be traced to the preamble of the Constitution as well
as Article 21 thereof. Further, privacy is considered as a subset
Writ Petition (Civil) No. 494 of 2012 connected matters Page 165 of 567
of personal liberty thereby accepting the minority opinion inKharak Singh v. State of U.P. Ors.29 Another significant
jurisprudential development of this judgment is that right to
privacy as a fundamental right is not limited to Article 21. On the
contrary, privacy resonates through the entirety of Part III of the
Constitution which pertains to fundamental rights and, in
particular, Articles 14, 19 and 21. Privacy is also recognised as a
natural right which inheres in individuals and is, thus, inalienable.
In developing the aforesaid concepts, the Court has been
receptive to the principles in international law and international
instruments. It is a recognition of the fact that certain human
rights cannot be confined within the bounds of geographical
location of a nation but have universal application. In the
process, the Court accepts the concept of universalisation of
human rights, including the right to privacy as a human right and
the good practices in developing and understanding such rights in
other countries have been welcomed. In this hue, it can also be
remarked that comparative law has played a very significant role
in shaping the aforesaid judgment on privacy in Indian context,
notwithstanding the fact that such comparative law has only a
persuasive value.
29 AIR 1963 SC 1295
Writ Petition (Civil) No. 494 of 2012 connected matters Page 166 of 56785) The whole process of reasoning contained in different opinions of
the Hon’ble Judges would, thus, reflect that the argument that it is
difficult to precisely define the common denominator of privacy,
was rejected. While doing so, the Court referred to various
approaches in formulating privacy30. An astute and sagacious
analysis of the judgment by the Centre for Internet and Society
brings about the following approaches which contributed to
formulating the following right to privacy:
(a) Classifying privacy on the basis of ‘harms’, thereby adopting
the approach conceptualised by Daniel Solove. In his book,
Understanding Privacy31, Daniel Solove makes a case for privacy
being a family resemblance concept.
(b) Classifying privacy on the basis of ‘interests’: Gary
Bostwick’s taxonomy of privacy is among the most prominent
amongst the scholarship that sub-areas within the right to privacy
protect different ‘interests’ or ‘justifications’. This taxonomy is
adopted in Chelameswar, J.’s definition of ‘privacy’ and includes
the three interests of privacy of repose, privacy of sanctuary and
privacy of intimate decision. Repose is the ‘right to be let alone’,
sanctuary is the interest which prevents others from knowing,
30 See the analysis of this judgment by the Centre for Internet and Society, https://cis-
india.org/internet-governance/blog/the-fundamental-right-to-privacy-an-analysis
31 Daniel Solove, Understanding Privacy, Cambridge, Massachusetts: Harvard University Press,
2008.Writ Petition (Civil) No. 494 of 2012 connected matters Page 167 of 567
seeing and hearing thus keeping information within the private
zone, and finally, privacy of intimate decision protects the
freedom to act autonomously.
(c) Classifying privacy as an ‘aggregation of rights’: This
approach in classifying privacy as a right, as highlighted above, is
not limited to one particular provision in the Chapter of
Fundamental Rights under the Constitution but is associated with
amalgam of different but connected rights. In formulating this
principle, the Court has referred to scholars like Roger Clarke,
Anita Allen etc. It has led to the recognition of private spaces or
zones as protected under the right to privacy (thereby extending
the ambit and scope of spatial privacy), informational privacy and
decisional autonomy.
86) The important question that arises, which is directly involved in
these cases, is:
What is the scope of the right to privacy and in what
circumstances such a right can be limited?
87) Concededly, fundamental rights are not absolute. The
Constitution itself permits State to impose reasonable restrictions
on these rights under certain circumstances. Thus, extent and
scope of the right to privacy and how and when it can be limited
Writ Petition (Civil) No. 494 of 2012 connected matters Page 168 of 567
by the State actions is also to be discerned. As noted above,Nariman, J. has led the path by observing that “when it comes to
restrictions on this right, the drill of various Articles to which the
right relates must be scrupulously followed”. Therefore,
examination has to be from the point of view of Articles 14, 19
and 21 for the reason that right to privacy is treated as having
intimate connection to various rights in Part III and is not merely
related to Article 21. Looked from this angle, the action of the
State will have to be tested on the touchstone of Article 14. This
judgment clarifies that the ‘classification’ test adopted earlier has
to be expanded and instead the law/action is to be tested on the
ground of ‘manifest arbitrariness’. This aspect has already been
discussed in detail under the caption ‘Scope of Judicial Review’
above. When it comes to examining the ‘restrictions’ as per the
provisions of Article 19 of the Constitution, the judgment proceeds
to clarify that a law which impacts dignity and liberty under Article
21, as well as having chilling effects on free speech which is
protected by Article 19(1)(a), must satisfy the standards of judicial
review under both provisions. Therefore, such restriction must
satisfy the test of judicial review under: (i) one of the eight
grounds mentioned under Article 19(2); and (ii) the restriction
should be reasonable. This Court has applied multiple standards
Writ Petition (Civil) No. 494 of 2012 connected matters Page 169 of 567
to determine reasonableness, including proximity, arbitrariness,and proportionality. Further, the reasonable restrictions must be
in the interests of: (i) the sovereignty and integrity of India, (ii) the
security of the State, (iii) friendly relations with foreign States, (iv)
public order, (v) decency or morality or (vi) in relation to contempt
of court, (vii) defamation or (viii) incitement to an offence.
88) The judgment further lays down that in the context of Article 21,
the test to be applied while examining a particular provision is the
‘just, fair and reasonable test’ thereby bringing notion of
proportionality.
89) The petitioners have sought to build their case on the aforesaid
parameters of privacy and have submitted that this right of
privacy, which is now recognised as a fundamental right, stands
violated by the very fabric contained in the scheme of Aadhaar. It
is sought to be highlighted that the data which is collected by the
State, particularly with the authentication of each transaction
entered into by an individual, can be assimilated to construct a
profile of such an individual and it particularly violates
informational privacy. No doubt, there can be reasonable
restrictions on this right, which is conceded by the petitioners. It
is, however, argued that right to privacy cannot be impinged
Writ Petition (Civil) No. 494 of 2012 connected matters Page 170 of 567
without a just, fair and reasonable law. Therefore, in the firstinstance, any intrusion into the privacy of a person has to be
backed by a law. Further, such a law, to be valid, has to pass the
test of legitimate aim which it should serve and also
proportionality i.e. proportionate to the need for such interference.
Not only this, the law in question must also provide procedural
guarantees against abuse of such interference.
90) At the same time, it can also be deduced from the reading of the
aforesaid judgment that the reasonable expectation of privacy
may vary from the intimate zone to the private zone and from the
private zone to the public arena. Further, privacy is not lost or
surrendered merely because the individual is in a public place.
For example, if a person was to post on Facebook vital
information about himself, the same being in public domain, he
would not be entitled to claim privacy right. This aspect is
highlighted by some of the Hon’ble Judges as under:
Dr. D.Y. Chandrachud, J.:
“297. What, then, does privacy postulate? Privacy
postulates the reservation of a private space for the
individual, described as the right to be let alone. The
concept is founded on the autonomy of the individual. The
ability of an individual to make choices lies at the core of
the human personality. The notion of privacy enables the
individual to assert and control the human element which is
inseparable from the personality of the individual. The
inviolable nature of the human personality is manifested inWrit Petition (Civil) No. 494 of 2012 connected matters Page 171 of 567
the ability to make decisions on matters intimate to human
life. The autonomy of the individual is associated over
matters which can be kept private. These are concerns
over which there is a legitimate expectation of privacy. The
body and the mind are inseparable elements of the human
personality. The integrity of the body and the sanctity of the
mind can exist on the foundation that each individual
possesses an inalienable ability and right to preserve a
private space in which the human personality can develop.
Without the ability to make choices, the inviolability of the
personality would be in doubt. Recognising a zone of
privacy is but an acknowledgment that each individual must
be entitled to chart and pursue the course of development
of personality. Hence privacy is a postulate of human
dignity itself. Thoughts and behavioural patterns which are
intimate to an individual are entitled to a zone of privacy
where one is free of social expectations. In that zone of
privacy, an individual is not judged by others. Privacy
enables each individual to take crucial decisions which find
expression in the human personality. It enables individuals
to preserve their beliefs, thoughts, expressions, ideas,
ideologies, preferences and choices against societal
demands of homogeneity. Privacy is an intrinsic recognition
of heterogeneity, of the right of the individual to be different
and to stand against the tide of conformity in creating a
zone of solitude. Privacy protects the individual from the
searching glare of publicity in matters which are personal to
his or her life. Privacy attaches to the person and not to the
place where it is associated. Privacy constitutes the
foundation of all liberty because it is in privacy that the
individual can decide how liberty is best exercised.
Individual dignity and privacy are inextricably linked in a
pattern woven out of a thread of diversity into the fabric of a
plural culture.xx xx xx
299. Privacy represents the core of the human personality
and recognises the ability of each individual to make
choices and to take decisions governing matters intimate
and personal. Yet, it is necessary to acknowledge that
individuals live in communities and work in communities.
Their personalities affect and, in turn are shaped by their
social environment. The individual is not a hermit. The lives
of individuals are as much a social phenomenon. In their
interactions with others, individuals are constantly engaged
in behavioural patterns and in relationships impacting on
Writ Petition (Civil) No. 494 of 2012 connected matters Page 172 of 567
the rest of society. Equally, the life of the individual is being
consistently shaped by cultural and social values imbibed
from living in the community. This state of flux which
represents a constant evolution of individual personhood in
the relationship with the rest of society provides the
rationale for reserving to the individual a zone of repose.
The lives which individuals lead as members of society
engender a reasonable expectation of privacy. The notion
of a reasonable expectation of privacy has elements both
of a subjective and objective nature. Privacy at a subjective
level is a reflection of those areas where an individual
desires to be left alone. On an objective plane, privacy is
defined by those constitutional values which shape the
content of the protected zone where the individual ought to
be left alone. The notion that there must exist a reasonable
expectation of privacy ensures that while on the one hand,
the individual has a protected zone of privacy, yet on the
other, the exercise of individual choices is subject to the
rights of others to lead orderly lives. For instance, an
individual who possesses a plot of land may decide to build
upon it subject to zoning regulations. If the building bye-
laws define the area upon which construction can be raised
or the height of the boundary wall around the property, the
right to privacy of the individual is conditioned by
regulations designed to protect the interests of the
community in planned spaces. Hence while the individual is
entitled to a zone of privacy, its extent is based not only on
the subjective expectation of the individual but on an
objective principle which defines a reasonable expectation.xx xx xx
307. The sphere of privacy stretches at one end to those
intimate matters to which a reasonable expectation of
privacy may attach. It expresses a right to be left alone. A
broader connotation which has emerged in academic
literature of a comparatively recent origin is related to the
protection of one's identity. Data protection relates closely
with the latter sphere. Data such as medical information
would be a category to which a reasonable expectation of
privacy attaches. There may be other data which falls
outside the reasonable expectation paradigm. Apart from
safeguarding privacy, data protection regimes seek to
protect the autonomy of the individual. This is evident from
the emphasis in the European data protection regime on
the centrality of consent. Related to the issue of consent is
the requirement of transparency which requires a
Writ Petition (Civil) No. 494 of 2012 connected matters Page 173 of 567
disclosure by the data recipient of information pertaining to
data transfer and use.”S.A. Bobde, J:
“421. Shri Rakesh Dwivedi, appearing for the State of
Gujarat, while referring to several judgments of the
Supreme Court of the United States, submitted that only
those privacy claims which involve a “reasonable
expectation of privacy” be recognised as protected by the
fundamental right. It is not necessary for the purpose of this
case to deal with the particular instances of privacy claims
which are to be recognised as implicating a fundamental
right. Indeed, it would be premature to do so. The scope
and ambit of a constitutional protection of privacy can only
be revealed to us on a case-by-case basis.”91) Though Nariman, J. did not subscribe to the aforesaid view in
totality, however, His Lordship has also given an example that if a
person has to post on Facebook vital information, the same being
in public domain, she would not be entitled to the claim of privacy
right.
92) We would also like to reproduce following discussion, in the
opinion authored by Nariman, J., giving the guidance as to how a
law has to be tested when it is challenged on the ground that it
violates the fundamental right to privacy:
“...Statutory provisions that deal with aspects of privacy would
continue to be tested on the ground that they would violate the
fundamental right to privacy, and would not be struck down, if it
is found on a balancing test that the social or public interest and
the reasonableness of the restrictions would outweigh the
particular aspect of privacy claimed. If this is so, then statutes
which would enable the State to contractually obtain information
about persons would pass muster in given circumstances,
provided they safeguard the individual right to privacy as well. A
Writ Petition (Civil) No. 494 of 2012 connected matters Page 174 of 567
simple example would suffice. If a person was to paste on
Facebook vital information about himself/herself, such
information, being in the public domain, could not possibly be
claimed as a privacy right after such disclosure. But, in
pursuance of a statutory requirement, if certain details need to
be given for the statutory purpose concerned, then such details
would certainly affect the right to privacy, but would on a
balance, pass muster as the State action concerned has
sufficient inbuilt safeguards to protect this right—viz. the fact
that such information cannot be disseminated to anyone else,
save on compelling grounds of public interest.”93) One important comment which needs to be made at this stage
relates to the standard of judicial review while examining the
validity of a particular law that allegedly infringes right to privacy.
The question is as to whether the Court is to apply ‘strict scrutiny’
standard or the ‘just, fair and reasonableness’ standard. In the
privacy judgment, different observations are made by different
Hon’ble Judges and the aforesaid aspect is not determined
authoritatively, may be for the reason that the Bench was
deciding the reference on the issue as to whether right to privacy
is a fundamental right or not and, in the process, it was called
upon to decide the specific questions referred to it. We have
dealt with this aspect at the appropriate stage.
Principles of Human Dignity:
94) While undertaking the analysis of the judgment in K.S.
Puttaswamy, we have mentioned that one of the attributes laid
down therein is that the sanctity of privacy lies in its functional
Writ Petition (Civil) No. 494 of 2012 connected matters Page 175 of 567
relationship with dignity. Privacy is the constitutional core ofhuman dignity. In the context of Aadhaar scheme how the
concept of human dignity is to be applied assumes significance.
95) In Common Cause v. Union of India32, the concept of human
dignity has been explained in much detail 33. The concept of
human dignity developed in the said judgment was general in
nature which is based on right to autonomy and right of choice
and it has become a constitutional value. In the last 40 years or
so, this Court has given many landmark judgments wherein
concept of human dignity is recognised as an attribute of
fundamental rights. In the earlier years, though the meaning and
scope of human dignity by itself was not expanded, this exercise
has been undertaken in last few years. Earlier judgments have
mentioned that human dignity is the intrinsic value of every
human being and, in the process, a person’s autonomy as an
attribute of dignity stands recognised. The judgments rendered in
the last few years have attempted to provide jurisprudential basis
to the concept of human dignity itself.
96) In National Legal Services Authority v. Union of India Ors. 34
while recognising the right of transgenders of self determination
32 (2018) 5 SCC 1
33 See paras 72-79 of the judgment
34 (2014) 5 SCC 438
Writ Petition (Civil) No. 494 of 2012 connected matters Page 176 of 567
of their sex, the Court explained the contours of human dignity inthe following words:
“106. The basic principle of the dignity and freedom of the
individual is common to all nations, particularly those
having democratic set up. Democracy requires us to
respect and develop the free spirit of human being which is
responsible for all progress in human history. Democracy
is also a method by which we attempt to raise the living
standard of the people and to give opportunities to every
person to develop his/her personality. It is founded on
peaceful co-existence and cooperative living. If democracy
is based on the recognition of the individuality and dignity
of man, as a fortiori we have to recognize the right of a
human being to choose his sex/gender identity which is
integral to his/her personality and is one of the most basic
aspect of self-determination, dignity and freedom. In fact,
there is a growing recognition that the true measure of
development of a nation is not economic growth; it is
human dignity.107. More than 225 years ago, Immanuel Kant
propounded the doctrine of free will, namely, the free willing
individual as a natural law ideal. Without going into the
detailed analysis of his aforesaid theory of justice (as we
are not concerned with the analysis of his jurisprudence)
what we want to point out is his emphasis on the “freedom”
of human volition. The concepts of volition and freedom are
“pure”, that is not drawn from experience. They are
independent of any particular body of moral or legal rules.
They are presuppositions of all such rules, valid and
necessary for all of them.108. Over a period of time, two divergent interpretations of
the Kantian criterion of justice came to be discussed. One
trend was an increasing stress on the maximum of
individual freedom of action as the end of law. This may not
be accepted and was criticised by the protagonist of
“hedonist utilitarianism”, notably Bentham. This school of
thought laid emphasis on the welfare of the society rather
than an individual by propounding the principle of
maximum of happiness to most of the people. Fortunately,
in the instant case, there is no such dichotomy between the
individual freedom/liberty we are discussing, as against
public good. On the contrary, granting the right to choose
gender leads to public good. The second tendency of the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 177 of 567
Kantian criterion of justice was found in reinterpreting
“freedom” in terms not merely of absence of restraint
but in terms of attainment of individual perfection. It is
this latter trend with which we are concerned in the present
case and this holds good even today. As pointed out
above, after the Second World War, in the form of the UN
Charter and thereafter there is more emphasis on the
attainment of individual perfection. In that united sense at
least there is a revival of the natural law theory of justice.
Blackstone, in the opening pages in his “Vattelian Fashion”
said that the principal aim of society “is to protect
individuals in the enjoyment of those absolute rights which
were vested in them by the immutable laws of nature….”97) Thus, right of choice and right of self determination were
accepted as facets of human dignity. It was also emphasised that
in certain cases, like the case at hand (that of transgenders),
recognition of this aspect of human dignity would yield happiness
to the individuals and, at the same time, also be in public good.
98) Advancement in conceptualising the doctrine of human dignity
took place in the case of Shabnam v. Union of India Ors. 35
wherein this Court has gone to the extent of protecting certain
rights of death convicts by holding that they cannot be executed
till they exhaust all available constitutional and statutory
remedies. In the process, the Court held as under:
““15. This right to human dignity has many elements. First
and foremost, human dignity is the dignity of each human
being 'as a human being'. Another element, which needs
to be highlighted, in the context of the present case, is that
human dignity is infringed if a person's life, physical or
mental welfare is harmed. It is in this sense torture,35 (2015) 6 SCC 702
Writ Petition (Civil) No. 494 of 2012 connected matters Page 178 of 567
humiliation, forced labour, etc. all infringe on human dignity.It is in this context many rights of the accused derive from
his dignity as a human being. These may include the
presumption that every person is innocent until proven
guilty; the right of the accused to a fair trial as well as
speedy trial; right of legal aid, all part of human dignity.
Even after conviction, when a person is spending prison
life, allowing humane conditions in jail is part of human
dignity. Prisons reforms or Jail reforms measures to make
convicts a reformed person so that they are able to lead
normal life and assimilate in the society, after serving the
jail term, are motivated by human dignity jurisprudence.16. In fact, this principle of human dignity has been used
frequently by Courts in the context of considering the death
penalty itself. Way back in the year 1972, the United States
Supreme Court kept in mind this aspect in the case of
Furman v. Georgia 408 US 238 (1972). The Court,
speaking through Brennan, J., while considering the
application of Eighth Amendment's prohibition on cruel and
unusual punishments, summed up the previous
jurisprudence on the Amendment as 'prohibit(ing) the
infliction of uncivilized and inhuman punishments. The
State, even as it punishes, must treat its members with
respect for their intrinsic worth as human beings. A
punishment is 'cruel and unusual', therefore, if it does not
comport with human dignity'. In Gregg v. Georgia 428 US
153 (1976), that very Court, again through Brennan, J.,
considered that 'the fatal constitutional infirmity in the
punishment of death is that it treats “members of the
human race as non-humans, as objects to be toyed with an
discarded. (It is), thus, inconsistent with the fundamental
premise of the clause that even the vilest criminal remains
a human being possessed of common human dignity'. The
Canadian Supreme Court, the Hungarian Constitutional
Court and the South African Supreme Court have gone to
the extent of holding that capital punishment constitutes a
serious impairment of human dignity and imposes a
limitation on the essential content of the fundamental rights
to life and human dignity and on that touchstone declaring
that dignity as unconstitutional.”99) Next judgment in this line of cases would be that of Jeeja Ghosh
Writ Petition (Civil) No. 494 of 2012 connected matters Page 179 of 567
Another v. Union of India Ors.36 wherein the Court, whileexpanding the jurisprudential basis, outlined three models of
dignity which have been discussed by us above. These were
referred to while explaining the normative role of human dignity,
alongside, in the following manner:
“37. The rights that are guaranteed to differently-abled
persons under the 1995 Act, are founded on the sound
principle of human dignity which is the core value of human
right and is treated as a significant facet of right to life and
liberty. Such a right, now treated as human right of the
persons who are disabled, has it roots in Article 21 of the
Constitution. Jurisprudentially, three types of models for
determining the content of the constitutional value of
human dignity are recognised. These are: (i) Theological
Models, (ii) Philosophical Models, and (iii) Constitutional
Models. Legal scholars were called upon to determine the
theological basis of human dignity as a constitutional value
and as a constitutional right. Philosophers also came out
with their views justifying human dignity as core human
value. Legal understanding is influenced by theological and
philosophical views, though these two are not identical.Aquinas and Kant discussed the jurisprudential aspects of
human dignity based on the aforesaid philosophies. Over a
period of time, human dignity has found its way through
constitutionalism, whether written or unwritten. Even right
to equality is interpreted based on the value of human
dignity. Insofar as India is concerned, we are not even
required to take shelter under theological or philosophical
theories. We have a written Constitution which guarantees
human rights that are contained in Part III with the caption
“Fundamental Rights”. One such right enshrined in Article
21 is right to life and liberty. Right to life is given a
purposeful meaning by this Court to include right to live
with dignity. It is the purposive interpretation which has
been adopted by this Court to give a content of the right to
human dignity as the fulfilment of the constitutional value
enshrined in Article 21. Thus, human dignity is a
constitutional value and a constitutional goal. What are the
dimensions of constitutional value of human dignity? It is36 (2016) 7 SCC 761
Writ Petition (Civil) No. 494 of 2012 connected matters Page 180 of 567
beautifully illustrated by Aharon Barak (former Chief Justice
of the Supreme Court of Israel) in the following manner:“The constitutional value of human dignity has a
central normative role. Human dignity as a
constitutional value is the factor that unites the human
rights into one whole. It ensures the normative unity
of human rights. This normative unity is expressed in
the three ways: first, the value of human dignity
serves as a normative basis for constitutional rights
set out in the Constitution; second, it serves as an
interpretative principle for determining the scope of
constitutional rights, including the right to human
dignity; third, the value of human dignity has an
important role in determining the proportionality of a
statute limiting a constitutional right.”38. All the three goals of human dignity as a constitutional
value are expanded by the author in a scholarly manner.
Some of the excerpts thereof, are reproduced below which
give a glimpse of these goals:“The first role of human dignity as a constitutional
value is expressed in the approach that it comprises
the foundation for all of the constitutional rights.
Human dignity is the central argument for the
existence of human rights. It is the rationale for them
all. It is the justification for the existence of rights.
According to Christoph Enders, it is the constitutional
value that determines that every person has the right
to have rights…The second role of human dignity as a constitutional
value is to provide meaning to the norms of the legal
system. According to purposive interpretation, all of
the provisions of the Constitution, and particularly all
of the rights in the constitutional bill of rights, are
interpreted in light of human dignity…Lastly, human dignity as a constitutional value
influences the development of the common law.
Indeed, where common law is recognised, Judges
have the duty to develop it, and if necessary, modify
it, so that it expresses constitutional values, including
the constitutional value of human dignity. To the
extent that common law determines rights and duties
between individuals, it might limit the human dignity of
Writ Petition (Civil) No. 494 of 2012 connected matters Page 181 of 567
one individual and protect the human dignity of the
other.”100) The concept was developed and expanded further in K.S.
Puttaswamy. The Court held that privacy postulates the
reservation of a private space for an individual, described as the
right to be let alone, as a concept founded on autonomy of the
individual. In this way, right to privacy has been treated as a
postulate of human dignity itself. While defining so, the Court
also remarked as under:
“298. Privacy of the individual is an essential aspect of
dignity. Dignity has both an intrinsic and instrumental value.
As an intrinsic value, human dignity is an entitlement or a
constitutionally protected interest in itself. In its
instrumental facet, dignity and freedom are inseparably
intertwined, each being a facilitative tool to achieve the
other. The ability of the individual to protect a zone of
privacy enables the realisation of the full value of life and
liberty... The family, marriage, procreation and sexual
orientation are all integral to the dignity of the individual.Above all, the privacy of the individual recognises an
inviolable right to determine how freedom shall be
exercised...”101) This concept of dignity took a leap forwarded in the case of
Common Cause v. Union of India37 pertaining to passive
euthanasia. Though this right was earlier recognised in Aruna
Ramachandra Shanbaug v. Union of India Ors.38, a totally new
dimension was given to this right, based on freedom of choice
37 (2018) 5 SCC 1
38 (2011) 4 SCC 454
Writ Petition (Civil) No. 494 of 2012 connected matters Page 182 of 567
which is to be given to an individual accepting his dignity. Therewere four concurring opinions. In one of the opinions 39, the
aspects of dignity are succinctly brought out in the following
manner:
“154. Dignity of an individual has been internationally
recognised as an important facet of human rights in the
year 1948 itself with the enactment of the Universal
Declaration of Human Rights. Human dignity not only finds
place in the Preamble of this important document but also
in Article 1 of the same. It is well known that the principles
set out in UDHR are of paramount importance and are
given utmost weightage while interpreting human rights all
over the world. The first and foremost responsibility fixed
upon the State is the protection of human dignity without
which any other right would fall apart. Justice Brennan in
his book The Constitution of the United States:
Contemporary Ratification has referred to the Constitution
as “a sparkling vision of the supremacy of the human
dignity of every individual”.155. In fact, in Christine Goodwin v. United Kingdom the
European Court of Human Rights, speaking in the context
of the Convention for the Protection of Human Rights and
Fundamental Freedoms, has gone to the extent of stating
that “the very essence of the Convention is respect for
human dignity and human freedom”. In the South African
case of S. v. Makwanyane, O’Regan, J. stated in the
Constitutional Court that “without dignity, human life is
substantially diminished”.xx xx xx
157. The concept and value of dignity requires further
elaboration since we are treating it as an inextricable facet
of right to life that respects all human rights that a person
enjoys. Life is basically self-assertion. In the life of a
person, conflict and dilemma are expected to be normal
phenomena. Oliver Wendell Holmes, in one of his
addresses, quoted a line from a Latin poet who had uttered
the message, “Death plucks my ear and says, Live—I am
coming”. That is the significance of living. But when a
39 Rendered by Dipak Misra, CJI
Writ Petition (Civil) No. 494 of 2012 connected matters Page 183 of 567
patient really does not know if he/she is living till death
visits him/her and there is constant suffering without any
hope of living, should one be allowed to wait? Should
she/he be cursed to die as life gradually ebbs out from
her/his being? Should she/he live because of innovative
medical technology or, for that matter, should he/she
continue to live with the support system as people around
him/her think that science in its progressive invention may
bring about an innovative method of cure? To put it
differently, should he/she be “Guinea pig” for some kind of
experiment? The answer has to be an emphatic “No”
because such futile waiting mars the pristine concept of
life, corrodes the essence of dignity and erodes the fact of
eventual choice which is pivotal to privacy.xx xx xx
159. In Mehmood Nayyar Azam v. State of Chhattisgarh, a
two-Judge Bench held thus: (SCC p. 6, para 1)“1. … Albert Schweitzer, highlighting on Glory of Life,
pronounced with conviction and humility, “the
reverence of life offers me my fundamental principle
on morality”. The aforesaid expression may appear to
be an individualistic expression of a great personality,
but, when it is understood in the complete sense, it
really denotes, in its conceptual essentiality, and
connotes, in its macrocosm, the fundamental
perception of a thinker about the respect that life
commands. The reverence of life is insegregably
associated with the dignity of a human being who is
basically divine, not servile. A human personality is
endowed with potential infinity and it blossoms when
dignity is sustained. The sustenance of such dignity
has to be the superlative concern of every sensitive
soul. The essence of dignity can never be treated as
a momentary spark of light or, for that matter, “a brief
candle”, or “a hollow bubble”. The spark of life gets
more resplendent when man is treated with dignity
sans humiliation, for every man is expected to lead an
honourable life which is a splendid gift of “creative
intelligence”.”xx xx xx
166. The purpose of saying so is only to highlight that the
law must take cognizance of the changing society and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 184 of 567
march in consonance with the developing concepts. The
need of the present has to be served with the interpretative
process of law. However, it is to be seen how much
strength and sanction can be drawn from the Constitution
to consummate the changing ideology and convert it into a
reality. The immediate needs are required to be addressed
through the process of interpretation by the Court unless
the same totally falls outside the constitutional framework
or the constitutional interpretation fails to recognise such
dynamism. The Constitution Bench in Gian Kaur [Gian
Kaur v. State of Punjab, (1996) 2 SCC 648 : 1996 SCC
(Cri) 374] , as stated earlier, distinguishes attempt to
suicide and abetment of suicide from acceleration of the
process of natural death which has commenced. The
authorities, we have noted from other jurisdictions, have
observed the distinctions between the administration of
lethal injection or certain medicines to cause painless
death and non-administration of certain treatment which
can prolong the life in cases where the process of dying
that has commenced is not reversible or withdrawal of the
treatment that has been given to the patient because of the
absolute absence of possibility of saving the life. To
explicate, the first part relates to an overt act whereas the
second one would come within the sphere of informed
consent and authorised omission. The omission of such a
nature will not invite any criminal liability if such action is
guided by certain safeguards. The concept is based on
non-prolongation of life where there is no cure for the state
the patient is in and he, under no circumstances, would
have liked to have such a degrading state. The words “no
cure” have to be understood to convey that the patient
remains in the same state of pain and suffering or the dying
process is delayed by means of taking recourse to modern
medical technology. It is a state where the treating
physicians and the family members know fully well that the
treatment is administered only to procrastinate the
continuum of breath of the individual and the patient is not
even aware that he is breathing. Life is measured by
artificial heartbeats and the patient has to go through this
undignified state which is imposed on him. The dignity of
life is denied to him as there is no other choice but to suffer
an avoidable protracted treatment thereby thus indubitably
casting a cloud and creating a dent in his right to live with
dignity and face death with dignity, which is a preserved
concept of bodily autonomy and right to privacy. In such a
stage, he has no old memories or any future hopes but he
is in a state of misery which nobody ever desires to have.Writ Petition (Civil) No. 494 of 2012 connected matters Page 185 of 567
Some may also silently think that death, the inevitable
factum of life, cannot be invited. To meet such situations,
the Court has a duty to interpret Article 21 in a further
dynamic manner and it has to be stated without any trace
of doubt that the right to life with dignity has to include the
smoothening of the process of dying when the person is in
a vegetative state or is living exclusively by the
administration of artificial aid that prolongs the life by
arresting the dignified and inevitable process of dying.
Here, the issue of choice also comes in. Thus analysed, we
are disposed to think that such a right would come within
the ambit of Article 21 of the Constitution.”102) In the other opinion40, four facets of euthanasia were discussed,
namely: (i) philosophy of euthanasia, (ii) morality of euthanasia,
(iii) dignity in euthanasia, and (iv) economics of euthanasia.
While discussing dignity in euthanasia, the three models of
dignity, namely, theological, philosophical and constitutional
model, were highlighted. Thereafter, postulates of dignity have
been explained in the following manner:
“292. Aharon Barak, former Chief Justice of the Supreme
Court of Israel, attributes two roles to the concept of human
dignity as a constitutional value, which are:292.1. Human dignity lays a foundation for all the human
rights as it is the central argument for the existence of
human rights.292.2. Human dignity as a constitutional value provides
meaning to the norms of the legal system. In the process,
one can discern that the principle of purposive
interpretation exhorts us to interpret all the rights given by
the Constitution, in the light of the human dignity. In this
sense, human dignity influences the purposive
interpretation of the Constitution. Not only this, it also
influences the interpretation of every sub-constitutional
norm in the legal system. Moreover, human dignity as a
40 Rendered by A.K. Sikri, J.Writ Petition (Civil) No. 494 of 2012 connected matters Page 186 of 567
constitutional value also influences the development of the
common law.xx xx xx
295. Dworkin, being a philosopher-jurist, was aware of the
idea of a Constitution and of a constitutional right to human
dignity. In his book, Taking Rights Seriously, he noted that
everyone who takes rights seriously must give an answer
to the question why human rights vis-à-vis the State exist.
According to him, in order to give such an answer one must
accept, as a minimum, the idea of human dignity. As he
writes:“Human dignity … associated with Kant, but defended
by philosophers of different schools, supposes that
there are ways of treating a man that are inconsistent
with recognising him as a full member of the human
community, and holds that such treatment is
profoundly unjust.”41296. In his Book, Is Democracy Possible Here?42 Dworkin
develops two principles about the concept of human
dignity. First principle regards the intrinsic value of every
person viz. every person has a special objective value
which value is not only important to that person alone but
success or failure of the lives of every person is important
to all of us. The second principle, according to Dworkin, is
that of personal responsibility. According to this principle,
every person has the responsibility for success in his own
life and, therefore, he must use his discretion regarding the
way of life that will be successful from his point of view.
Thus, Dworkin's jurisprudence of human dignity is founded
on the aforesaid two principles which, together, not only
define the basis but the conditions for human dignity.
Dworkin went on to develop and expand these principles in
his book, Justice for Hedgehogs (2011)43.297. When speaking of rights, it is impossible to envisage
it without dignity. In his pioneering and all-inclusive Justice
for Hedgehogs, he proffered an approach where respect
for human dignity, entails two requirements; first, self-
respect i.e. taking the objective importance of one's own41 Ronald Dworkin, Taking Rights Seriously (AC Black, 2013) 239.
42 Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate (Princeton
University Press, 2006)
43 Harvard University Press, 2011.Writ Petition (Civil) No. 494 of 2012 connected matters Page 187 of 567
life seriously; this represents the free will of the person, his
capacity to think for himself and to control his own life and
second, authenticity i.e. accepting a “special, personal
responsibility for identifying what counts as success” in
one's own life and for creating that life “through a coherent
narrative” that one has chosen44. According to Dworkin,
these principles form the fundamental criteria supervising
what we should do in order to live well.45 They further
explicate the rights that individuals have against their
political community,46 and they provide a rationale for the
moral duties we owe to others. This notion of dignity, which
Dworkin gives utmost importance to, is indispensable to
any civilised society. It is what is constitutionally recognised
in our country and for good reason. Living well is a moral
responsibility of individuals; it is a continuing process that is
not a static condition of character but a mode that an
individual constantly endeavours to imbibe. A life lived
without dignity, is not a life lived at all for living well implies
a conception of human dignity which Dworkin interprets
includes ideals of self-respect and authenticity.”103) In summation, it can be said that the concept of human dignity
dates back to thousands of years. Historically, human dignity, as
a concept, found its origin in different religions which is held to be
an important component of their theological approach. Jurists
have given this approach as ‘theological model’ of dignity. It is
primarily based on the premise that human beings are the
creation of God and cannot be treated as mere material beings.
Human identity is more ethical than spiritual because man is
creation of God; harm to a human being is harm to God. God,
thus, wishes to grant human being recognition, dignity and
44 Kenneth W. Simons, “Dworkin's Two Principle of Dignity: An Unsatisfactory Non-
Consequentialist Account of Interpersonal Moral Duties”, 90 Boston Law Rev. 715 (2010)]
45 Footnote 33 above.46 Footnote 32 above.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 188 of 567
authority. It is also religious belief that God is rational and
determines his goals for himself. Likewise, human being created
by God too is rational and determines his own goal. Therefore,
man has freedom of will. A couple of centuries ago, philosophical
approach was given to the conception of human dignity. This
sphere was headed by German Philosopher Immanuel Kant
whose moral theory is divided into two parts: ethics and right.
According to Kant, a person acts ethically when he acts by force
of a duty that a rational agent self-legislates onto his own will.
Thus, he talked of free will of the human being. For Kant, ethics
include duties of oneself (for example - to develop one's talents)
and to others (for example - to contribute to their happiness).
This ability is the human dignity of man. Philosophical approach,
thus, is metaethical one, which is a journey from ‘human being’
and ‘remaining human’. This is explained by Professor Upendra
Baxi as the relationship between ‘self’, ‘others’ and ‘society’. In
this philosophical sense, dignity is ‘respect’ for an individual
person based on the principle of freedom and capacity of making
choices and a good or just social order is one which respects
dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source of
free and informed choice’. To put it philosophically, each
individual has a right to live her life the way she wants, without
Writ Petition (Civil) No. 494 of 2012 connected matters Page 189 of 567
any subjugation. One can rule others, but then it is never noble.It is immoral because the other is not a means to you, the other is
an end to herself. Kant also maintains that to use the other as a
means is the basic immoral act. Everything else that is immoral
is immoral because of this, so this should be the criterion: Are
you using the other as a means? Someone has put this
remarkably in the following words:
“Alexander the Great is not noble, only Gautam the Buddha
is noble, for the simple reason that Buddha has no rule
over others but he is a matter of himself.There is no part of his being which is not in tune with him.
He has come to attain absolute harmony. There is no
conflict in him, there is a reign of absolute peace. And his
consciousness is supreme, nothing is above it – no instinct,
no intellect, nothing is higher than his consciousness.”104) Historically, a transition has taken place into the idea of dignity by
transforming the amalgam of theological approach (man as
creation of God deserving dignity) and philosophical approach
based on morality, by elevating human dignity as a constitutional
norm attaching constitutional value to it. It is a transition from
‘respect’ to ‘right’ by making respect as enforceable right. The
manner in which it has happened in India has been traced above.
105) From the aforesaid discussion, it follows that dignity as a
jurisprudential concept has now been well defined by this Court.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 190 of 567
Its essential ingredients can be summarised as under:The basic principle of dignity and freedom of the individual
is an attribute of natural law which becomes the right of all
individuals in a constitutional democracy. Dignity has a central
normative role as well as constitutional value. This normative role
is performed in three ways:
First, it becomes basis for constitutional rights;
Second, it serves as an interpretative principle for
determining the scope of constitutional rights; and,
Third, it determines the proportionality of a statute limiting a
constitutional right. Thus, if an enactment puts limitation on a
constitutional right and such limitation is disproportionate, such a
statute can be held to be unconstitutional by applying the doctrine
of proportionality.
106) As per Dworkin, there are two principles about the concept of
human dignity. First principle regards an ‘intrinsic value’ of every
person, namely, every person has a special objective value,
which value is not only important to that person alone but
success or failure of the lives of every person is important to all of
us. It can also be described as self respect which represents the
free will of the person, her capacity to think for herself and to
control her own life. The second principle is that of ‘personal
Writ Petition (Civil) No. 494 of 2012 connected matters Page 191 of 567
responsibility’, which means every person has the responsibilityfor success in her own life and, therefore, she must use her
discretion regarding the way of life that will be successful from
her point of view.
107) Sum total of this exposition is well defined by Professor Baxi by
explaining that as per the aforesaid view, dignity is to be treated
as ‘empowerment’ which makes a triple demand in the name of
‘respect’ for human dignity, namely:
(i) respect for one's capacity as an agent to make one's own free
choices;
(ii) respect for the choices so made; and
(iii) respect for one's need to have a context and conditions in
which one can operate as a source of free and informed choice.
108) In this entire formulation, ‘respect’ for an individual is the fulcrum,
which is based on the principle of freedom and capacity to make
choices and a good or just social order is one which respects
dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source of
free and informed choice’.
109) The aforesaid discourse on the concept of human dignity is from
an individual point of view. That is the emphasis of the petitioners
as well. That would be one side of the coin. A very important
Writ Petition (Civil) No. 494 of 2012 connected matters Page 192 of 567
feature which the present case has brought into focus is anotherdimension of human dignity, namely, in the form of ‘common
good’ or ‘public good’. Thus, our endeavour here is to give richer
and more nuanced understanding to the concept of human
dignity. Here, dignity is not limited to an individual and is to be
seen in an individualistic way. A reflection on this facet of human
dignity was stated in National Legal Services Authority
(Transgenders’ case), which can be discerned from the following
discussion:
“103. A corollary of this development is that while so long
the negative language of Article 21 and use of the word
“deprived” was supposed to impose upon the State the
negative duty not to interfere with the life or liberty of an
individual without the sanction of law, the width and
amplitude of this provision has now imposed a positive
obligation (Vincent Panikurlangara v. Union of India) upon
the State to take steps for ensuring to the individual a
better enjoyment of his life and dignity e.g.:(i) Maintenance and improvement of public health (Vincent
Panikurlangara v. Union of India).(ii) Elimination of water and air pollution (M.C. Mehta v.
Union of India).(iii) Improvement of means of communication (State of H.P.
v. Umed Ram Sharma).(iv) Rehabilitation of bonded labourers (Bandhua Mukti
Morcha v. Union of India).(v) Providing human conditions in prisons (Sher Singh v.
State of Punjab) and protective homes (Sheela Barse v.
Union of India).Writ Petition (Civil) No. 494 of 2012 connected matters Page 193 of 567
(vi) Providing hygienic condition in a slaughterhouse
(Buffalo Traders Welfare Assn. v. Maneka Gandhi).104. The common golden thread which passes through all
these pronouncements is that Article 21 guarantees
enjoyment of life by all citizens of this country with dignity,
viewing this human right in terms of human development.105. The concepts of justice social, economic and political,
equality of status and of opportunity and of assuring dignity
of the individual incorporated in the Preamble, clearly
recognise the right of one and all amongst the citizens of
these basic essentials designed to flower the citizen's
personality to its fullest. The concept of equality helps the
citizens in reaching their highest potential. Thus, the
emphasis is on the development of an individual in all
respects.”110) Christopher McCrudden, an Oxford Academic, in his article
‘Human Dignity and Judicial Interpretation of Human Rights’ 47
published in the European Journal of International Law on
September 01, 2008 traces the evolution of concept of human
dignity. In substance, his analysis is that in the early stages of
social evolution, human dignity was understood as a concept
associated with ‘status’. Only those individuals were considered
worthy of respect who enjoyed a certain status within the social
construct. Though one finds statements about dignity of humans
as human beings on account of the human being the highest
creation of God and his possession of mind and the power of
reason in the Oration of Marcus Tullius Cicero, a Roman
Politician and Philosopher (63 BC), and in the works of Pico della
47 Published in the European Journal of International Law on September 01, 2008
Writ Petition (Civil) No. 494 of 2012 connected matters Page 194 of 567
Mirandola, a Reformation Humanist (1486) ‘On the dignity ofman’, yet there existed human beings who were not considered
as human beings. There were slaves who were treated at par
with animals.
111) Kant expounded the theory that humans should be treated as an
end in themselves and not merely as a means to an end with
ability to choose their destiny. Emphasis was laid on the intrinsic
worth of the human being. Based on this philosophy emerged
the initial declaration of rights. Kant wrote thus:
“Humanity itself is a dignity; for a human being cannot be
used merely as a means by any human being (...) but must
always be used at the same time as an end. It is just in this
that his dignity (personality) consists, by which he raises
himself above all other beings in the world that are not
human beings and yet can be used, and so overall things.”112) Charles Bernard Renouvier, a French Philosopher, said:
“Republic is a State which best reconciles dignity of
individual with dignity of everyone.”113) Dignity extended to all citizens involves the idea of
communitarism. A little earlier in 1798, Friedrich Schiller, a
German poet of freedom and philosophy, brought out the
connection between dignity and social condition in his work
“Wurde des Menschen”. He said “(g)ive him food and shelter;
Writ Petition (Civil) No. 494 of 2012 connected matters Page 195 of 567
when you have covered his nakedness, dignity will follow by
itself.” It was during the period that abolition of slavery became
an important political agenda. Slavery was considered as an
affront to human dignity.
114) The Universal Declaration of Human Rights (UDHR) recorded in
the Preamble recognition of the inherent dignity and of the equal
and inalienable rights of all members of the human family as the
foundation of freedom, justice and peace. It included freedom
from fear and want as amongst the highest aspirations of the
common people. This is of course subject to resources of each
State. But the realisation is contemplated through national effort
and international cooperation. Evidently, the UDHR adopts a
substantive or communitarian concept of human dignity. The
realisation of intrinsic worth of every human being, as a member
of society through national efforts as an indispensable condition
has been recognised as an important human right. Truly
speaking, this is directed towards the deprived, downtrodden and
have nots.
115) We, therefore, have to keep in mind humanistic concept of
human dignity which is to be accorded to a particular segment of
the society and, in fact, a large segment. Their human dignity is
Writ Petition (Civil) No. 494 of 2012 connected matters Page 196 of 567
based on the socio-economic rights that are read in to thefundamental rights, as already discussed above.
116) When we read socio-economic rights into human dignity, the
community approach also assumes importance along with
individualistic approach to human dignity. It has now been well
recognised that at its core, human dignity contains three
elements, namely, intrinsic value, autonomy and community
value. These are known as core values of human dignity. These
three elements can assist in structuring legal reasoning and
justifying judicial choices in ‘hard cases’. It has to be borne in
mind that human dignity is a constitutional principle, rather than
free standing fundamental rights. Insofar as intrinsic value is
concerned, here human dignity is linked to the nature of being.
We may give brief description of these three contents of the idea
of human dignity as below:
(I) Intrinsic Value:
The uniqueness of human kind is the product of a
combination of inherent traits and features – including
intelligence, sensibility, and the ability to communicate – that give
humans a special status in the world, distinct from other
species.48 The intrinsic value of all individuals results in two
48 See George Kateb, Human Dignity 5 (2011) (“[W]e can distinguish between the dignity of every
Writ Petition (Civil) No. 494 of 2012 connected matters Page 197 of 567
basic postulates: anti-utilitarian and anti-authoritarian. The formerconsists of the formulation of Kant’s categorical imperative that
every individual is an end in him or herself, not a means for
collective goals or the purposes of others. The latter is
synthesized in the idea that the State exists for the individual, not
the other way around. As for its legal implications, intrinsic value
is the origin of a set of fundamental rights. The first of these
rights is the right to life, a basic precondition for the enjoyment of
any other right. A second right directly related to the intrinsic
value of each and every individual is equality before and under
the law. All individuals are of equal value and, therefore, deserve
equal respect and concern. This means not being discriminated
against due to race, colour, ethnic or national origin, sex, age or
mental capacity (the right to non-discrimination), as well as
respect for cultural, religious, or linguistic diversity (the right to
recognition). Human dignity fulfills only part of the content of the
idea of equality, and in many situations it may be acceptable to
differentiate among people. In the contemporary world, this is
particularly at issue in cases involving affirmative action and the
rights of religious minorities. Intrinsic value also leads to the right
to integrity, both physical and mental. The right to physical
human individual and the dignity of the human species as a whole.”).
Writ Petition (Civil) No. 494 of 2012 connected matters Page 198 of 567
integrity includes the prohibition of torture, slave labour, anddegrading treatment or punishment. Discussions on life
imprisonment, interrogation techniques, and prison conditions
take place within the scope of this right. The right to mental
integrity comprises the right to personal honour and image and
includes the right to privacy.
(II) Autonomy:
Autonomy is the ethical element of human dignity. It is the
foundation of the free will of individuals, which entitles them to
pursue the ideals of living well and having a good life in their own
ways. The central notion is that of self-determination: An
autonomous person establishes the rules that will govern his or
her life. Kantian conception of autonomy is the will governed by
the moral law (moral autonomy). Here, we are concerned with
personal autonomy, which is value neutral and means the free
exercise of the will according to one’s own values, interests, and
desires. Autonomy requires the fulfillment of certain conditions,
such as reason (the mental capacity to make informed decisions),
independence (the absence of coercion, manipulation and severe
want), and choice (the actual existence of alternatives).
Autonomy, thus, is the ability to make personal decisions and
choices in life based on one’s conception of the good, without
Writ Petition (Civil) No. 494 of 2012 connected matters Page 199 of 567
undue external influences. As for its legal implications, autonomyunderlies a set of fundamental rights associated with democratic
constitutionalism, including basic freedoms (private autonomy)
and the right of political participation (public autonomy).
It would be pertinent to emphasise here that with the rise of
the welfare state, many countries in the world (and that includes
India) also consider a fundamental right to minimum living
conditions (the existential minimum) in the balancing that results
into effective autonomy. Thus, there are three facets of
autonomy, namely: private autonomy, public autonomy and the
existential minimum. Insofar as the last component is concerned,
it is also referred to as social minimum or the basic right to the
provision of adequate living conditions has its roots in right to
equality as well. In fact, equality, in a substantive sense, and
especially autonomy (both private and public), are dependent on
the fact that individuals are “free from want,” meaning that their
essential needs are satisfied. To be free, equal, and capable of
exercising responsible citizenship, individuals must pass
minimum thresholds of well-being, without which autonomy is a
mere fiction. This requires access to some essential utilities,
such as basic education and health care services, as well as
some elementary necessities, such as food, water, clothing, and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 200 of 567
shelter. The existential minimum, therefore, is the core content ofsocial and economic rights. This concept of minimum social right
is protected by the Court, time and again.
(III) Community Value:
This element of human dignity as community value relates
to the social dimension of dignity. The contours of human dignity
are shaped by the relationship of the individual with others, as
well as with the world around him. English poet John Donne
expresses the same sentiments when he says ‘no man is an
island, entire of itself’ 49. The individual, thus, lives within himself,
within a community, and within a state. His personal autonomy is
constrained by the values, rights, and morals of people who are
just as free and equal as him, as well as by coercive regulation.
Robert Post identified three distinct forms of social order:
community (a “shared world of common faith and fate”),
management (the instrumental organization of social life through
law to achieve specific objectives), and democracy (an
arrangement that embodies the purpose of individual and
collective self-determination. These three forms of social order
presuppose and depend on each other, but are also in constant
tension.
49 See John Donne, XVII. Mediation, in Devotions upon Emergent Occasions 107, 108-09 (Uyniv.
Of Mich. Press 1959) (1624)
Writ Petition (Civil) No. 494 of 2012 connected matters Page 201 of 567
Dignity as a community value, therefore, emphasises therole of the state and community in establishing collective goals
and restrictions on individual freedoms and rights on behalf of a
certain idea of the good life. The relevant question here is in
what circumstances and to what degree should these actions be
regarded as legitimate in a constitutional democracy? The liberal
predicament that the state must be neutral with regard to different
conceptions of the good in a plural society is not incompatible, of
course, with limitation resulting from the necessary coexistence of
different views and potentially conflicting rights. Such
interferences, however, must be justified on grounds of a
legitimate idea of justice, an “overlapping consensus” 50 that can
be shared by most individuals and groups. Whenever such
tension arises, the task of balancing is to be achieved by the
Courts.
We would like to highlight one more significant feature
which the issues involved in the present case bring about. It is
the balancing of two facets of dignity of the same individual.
Whereas, on the one hand, right of personal autonomy is a part
of dignity (and right to privacy), another part of dignity of the
same individual is to lead a dignified life as well (which is again a
50 “Overlapping consensus” is a term coined by John Rawls that identifies basic ideas of justice
that can be shared by supporters of different religious, political, and moral comprehensive
doctrines.Writ Petition (Civil) No. 494 of 2012 connected matters Page 202 of 567
facet of Article 21 of the Constitution). Therefore, in a scenario
where the State is coming out with welfare schemes, which strive
at giving dignified life in harmony with human dignity and in the
process some aspect of autonomy is sacrificed, the balancing of
the two becomes an important task which is to be achieved by
the Courts. For, there cannot be undue intrusion into the
autonomy on the pretext of conferment of economic benefits.
Precisely, this very exercise of balancing is undertaken by the
Court in resolving the complex issues raised in the petitions.
Doctrine of Proportionality:
117) As noted above, whenever challenge is laid to an action of the
State on the ground that it violates the right to privacy, the action
of the State is to be tested on the following parameters:
(a) the action must be sanctioned by law;(b) the proposed action must be necessary in a democratic
society for a legitimate aim; and
(c) the extent of such interference must be proportionate to the
need for such interference.
118) Doctrine of proportionality was explained by the Constitution
Bench judgment of this Court in Modern Dental College and
Research Centre Ors. v. State of Madhya Pradesh Ors. 51. In
51 (2016) 7 SCC 353
Writ Petition (Civil) No. 494 of 2012 connected matters Page 203 of 567
the first instance, therefore, it would be apt to reproduce the saiddiscussion:
“60. ...Thus, while examining as to whether the impugned
provisions of the statute and rules amount to reasonable
restrictions and are brought out in the interest of the
general public, the exercise that is required to be
undertaken is the balancing of fundamental right to carry
on occupation on the one hand and the restrictions
imposed on the other hand. This is what is known as
“doctrine of proportionality”. Jurisprudentially,
“proportionality” can be defined as the set of rules
determining the necessary and sufficient conditions for
limitation of a constitutionally protected right by a law to be
constitutionally permissible. According to Aharon Barak
(former Chief Justice, Supreme Court of Israel), there are
four sub-components of proportionality which need to be
satisfied [Aharon Barak, Proportionality: Constitutional
Rights and Their Limitation (Cambridge University Press
2012)], a limitation of a constitutional right will be
constitutionally permissible if:(i) it is designated for a proper purpose;(ii) the measures undertaken to effectuate such a
limitation are rationally connected to the fulfilment of that
purpose;(iii) the measures undertaken are necessary in that there
are no alternative measures that may similarly achieve that
same purpose with a lesser degree of limitation; and finally(iv) there needs to be a proper relation (“proportionality
stricto sensu” or “balancing”) between the importance of
achieving the proper purpose and the social importance of
preventing the limitation on the constitutional right.61. Modern theory of constitutional rights draws a
fundamental distinction between the scope of the
constitutional rights, and the extent of its protection. Insofar
as the scope of constitutional rights is concerned, it marks
the outer boundaries of the said rights and defines its
contents. The extent of its protection prescribes the
limitations on the exercises of the rights within its scope. InWrit Petition (Civil) No. 494 of 2012 connected matters Page 204 of 567
that sense, it defines the justification for limitations that can
be imposed on such a right.62. It is now almost accepted that there are no absolute
constitutional rights [ Though, debate on this vexed issue
still continues and some constitutional experts claim that
there are certain rights, albeit very few, which can still be
treated as “absolute”. Examples given are:(a) Right to
human dignity which is inviolable,(b) Right not to be
subjected to torture or to inhuman or degrading treatment
or punishment. Even in respect of such rights, there is a
thinking that in larger public interest, the extent of their
protection can be diminished. However, so far such
attempts of the States have been thwarted by the judiciary.]
and all such rights are related. As per the analysis of
Aharon Barak [Aharon Barak, Proportionality:
Constitutional Rights and Their Limitation (Cambridge
University Press 2012).] , two key elements in developing
the modern constitutional theory of recognising positive
constitutional rights along with its limitations are the notions
of democracy and the rule of law. Thus, the requirement of
proportional limitations of constitutional rights by a sub-
constitutional law i.e. the statute, is derived from an
interpretation of the notion of democracy itself. Insofar as
the Indian Constitution is concerned, democracy is treated
as the basic feature of the Constitution and is specifically
accorded a constitutional status that is recognised in the
Preamble of the Constitution itself. It is also unerringly
accepted that this notion of democracy includes human
rights which is the cornerstone of Indian democracy. Once
we accept the aforesaid theory (and there cannot be any
denial thereof), as a fortiori, it has also to be accepted that
democracy is based on a balance between constitutional
rights and the public interests. In fact, such a provision in
Article 19 itself on the one hand guarantees some certain
freedoms in clause (1) of Article 19 and at the same time
empowers the State to impose reasonable restrictions on
those freedoms in public interest. This notion accepts the
modern constitutional theory that the constitutional rights
are related. This relativity means that a constitutional
licence to limit those rights is granted where such a
limitation will be justified to protect public interest or the
rights of others. This phenomenon—of both the right and
its limitation in the Constitution—exemplifies the inherent
tension between democracy's two fundamental elements.
On the one hand is the right's element, which constitutes a
fundamental component of substantive democracy; on the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 205 of 567
other hand is the people element, limiting those very rights
through their representatives. These two constitute a
fundamental component of the notion of democracy,
though this time in its formal aspect. How can this tension
be resolved? The answer is that this tension is not resolved
by eliminating the “losing” facet from the Constitution.
Rather, the tension is resolved by way of a proper
balancing of the competing principles. This is one of the
expressions of the multi-faceted nature of democracy.
Indeed, the inherent tension between democracy's different
facets is a “constructive tension”. It enables each facet to
develop while harmoniously coexisting with the others. The
best way to achieve this peaceful coexistence is through
balancing between the competing interests. Such
balancing enables each facet to develop alongside the
other facets, not in their place. This tension between the
two fundamental aspects—rights on the one hand and its
limitation on the other hand—is to be resolved by balancing
the two so that they harmoniously coexist with each other.
This balancing is to be done keeping in mind the relative
social values of each competitive aspects when considered
in proper context.63. In this direction, the next question that arises is as to
what criteria is to be adopted for a proper balance between
the two facets viz. the rights and limitations imposed upon
it by a statute. Here comes the concept of “proportionality”,
which is a proper criterion. To put it pithily, when a law
limits a constitutional right, such a limitation is constitutional
if it is proportional. The law imposing restrictions will be
treated as proportional if it is meant to achieve a proper
purpose, and if the measures taken to achieve such a
purpose are rationally connected to the purpose, and such
measures are necessary. This essence of doctrine of
proportionality is beautifully captured by Dickson, C.J. of
Canada in R. v. Oakes [R. v. Oakes, (1986) 1 SCR 103
(Can SC)] , in the following words (at p. 138):‘To establish that a limit is reasonable and
demonstrably justified in a free and democratic
society, two central criteria must be satisfied. First,
the objective, which the measures, responsible for a
limit on a Charter right or freedom are designed to
serve, must be “of” sufficient importance to warrant
overriding a constitutional protected right or freedom
… Second … the party invoking Section 1 must show
that the means chosen are reasonable and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 206 of 567
demonstrably justified. This involves “a form of
proportionality test…” Although the nature of the
proportionality test will vary depending on the
circumstances, in each case courts will be required to
balance the interests of society with those of
individuals and groups. There are, in my view, three
important components of a proportionality test. First,
the measures adopted must be … rationally
connected to the objective. Second, the means …
should impair “as little as possible” the right or
freedom in question … Third, there must be a
proportionality between the effects of the measures
which are responsible for limiting the Charter right or
freedom, and the objective which has been identified
as of “sufficient importance”. The more severe the
deleterious effects of a measure, the more important
the objective must be if the measure is to be
reasonable and demonstrably justified in a free and
democratic society.’64. The exercise which, therefore, is to be taken is to find
out as to whether the limitation of constitutional rights is for
a purpose that is reasonable and necessary in a
democratic society and such an exercise involves the
weighing up of competitive values, and ultimately an
assessment based on proportionality i.e. balancing of
different interests.65. We may unhesitatingly remark that this doctrine of
proportionality, explained hereinabove in brief, is enshrined
in Article 19 itself when we read clause (1) along with
clause (6) thereof. While defining as to what constitutes a
reasonable restriction, this Court in a plethora of judgments
has held that the expression “reasonable restriction” seeks
to strike a balance between the freedom guaranteed by
any of the sub-clauses of clause (1) of Article 19 and the
social control permitted by any of the clauses (2) to (6). It is
held that the expression “reasonable” connotes that the
limitation imposed on a person in the enjoyment of the right
should not be arbitrary or of an excessive nature beyond
what is required in the interests of public. Further, in order
to be reasonable, the restriction must have a reasonable
relation to the object which the legislation seeks to achieve,
and must not go in excess of that object (see P.P.
Enterprises v. Union of India). At the same time,
reasonableness of a restriction has to be determined in an
objective manner and from the standpoint of the interests
Writ Petition (Civil) No. 494 of 2012 connected matters Page 207 of 567
of the general public and not from the point of view of the
persons upon whom the restrictions are imposed or upon
abstract considerations (see Mohd. Hanif Quareshi v. State
of Bihar). In M.R.F. Ltd. v. State of Kerala, this Court held
that in examining the reasonableness of a statutory
provision one has to keep in mind the following factors:(1) The directive principles of State policy.
(2) Restrictions must not be arbitrary or of an excessive
nature so as to go beyond the requirement of the interest of
the general public.(3) In order to judge the reasonableness of the restrictions,
no abstract or general pattern or a fixed principle can be
laid down so as to be of universal application and the same
will vary from case to case as also with regard to changing
conditions, values of human life, social philosophy of the
Constitution, prevailing conditions and the surrounding
circumstances.(4) A just balance has to be struck between the restrictions
imposed and the social control envisaged by Article 19(6).(5) Prevailing social values as also social needs which are
intended to be satisfied by the restrictions.(6) There must be a direct and proximate nexus or
reasonable connection between the restrictions imposed
and the object sought to be achieved. If there is a direct
nexus between the restrictions, and the object of the Act,
then a strong presumption in favour of the constitutionality
of the Act will naturally arise.”
(emphasis in original)119) We may note at this stage that there is a growing awareness of
the practical importance of the principle of proportionality for
rights adjudication and it has sparked a wave of academic
scholarship as well. The first integrates the doctrine of
proportionality into a broader theoretical framework. It is
Writ Petition (Civil) No. 494 of 2012 connected matters Page 208 of 567
propounded by Robert Alexy, premised on the theory of rights asprinciples and optimisation requirements52. For Alexy, all norms
are either rules or principles. Constitutional rights are principles,
which means that they must be realised to the greatest extent
factually and legally possible. For Alexy, the principle of
proportionality follows logically from the nature of constitutional
rights as principles. On the other hand, Mattias Kumm presented
his theory of rights adjudication as Socratic contestation, with
proportionality principle at its centre. As per Kumm,
proportionality is the doctrinal tool which allows Judges to assess
the reasonableness or plausibility, of a policy and thus to
determine whether it survives Socratic contestation 53. Recently,
Kai Moller has proposed another theory, which is an autonomy-
based theory of what he calls ‘the global model of constitutional
rights’, at the core of which lies the obligation of the State to take
the autonomy interests of every person adequately into account 54.
In this process, his understanding of autonomy leads to one
consequence, viz., there will often be conflicts of autonomy
interests, which have to be resolved in line with each agent’s
52 Robert Alexy, A Theory of Constitutional Rights, (Oxford, Oxford University Press, 2002)
53 M Kumm, ‘The Idea of Socratic Contestation and the Right to Justification: The Point and
Purpose of Rights-Based Proportionality Review’ (2010) 4 Law Ethics of Human Rights 141; M
Kumm, ‘Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm,
Legitimate Authority and the point of Judicial Review’ (2007) 1 European Journal of Legal
Studies.54 K Moller, The Global Model of Constitutional Rights (Oxford, Oxford University Press, 2012).
Writ Petition (Civil) No. 494 of 2012 connected matters Page 209 of 567
status as an equal. Here, the proportionality principle becomesthe doctrinal tool which guides Judges through the process of
resolving those conflicts.
One thing is clear from the above, i.e. jurisprudential
explanations of proportionality principle. There may be some
differences about the approach on the application of
proportionality doctrine, it is certain that proportionality has
become the lingua franca of judicial systems across borders,
concerning the circumstances under which it is appropriate to
limit fundamental rights.
120) The proportionality test which is stated in the aforesaid judgment,
accepting Justice Barak’s conceptualisation, essentially takes the
version which is used by the German Federal Constitutional
Court and is also accepted by most theorists of proportionality.
According to this test, a measure restricting a right must, first,
serve a legitimate goal (legitimate goal stage); it must, secondly,
be a suitable means of furthering this goal (suitability or rational
connection stage); thirdly, there must not be any less restrictive
but equally effective alternative (necessity stage); and fourthly,
the measure must not have a disproportionate impact on the
right-holder (balancing stage).
Writ Petition (Civil) No. 494 of 2012 connected matters Page 210 of 567
121) Many issues arise while undertaking the exercise of
proportionality inquiry. At legitimate goal stage, question arises
as to what does it mean to speak of the goal of a policy, and what
does it mean to require a goal to be legitimate? 55 With regard to
the suitability and necessity stages, some of the open issues are
how to deal with empirical uncertainty: should this lead to wide-
ranging deference to the elected branches? 56 At the balancing
stage, we have to ask the question of what it means to say that a
right is ‘balanced’ against a competing right or public interest.
One remarkable feature of the German test is that it tends to
push most of the important issues into the last stage, viz., the
balancing stage. At the legitimate goal stage, any goal that is
legitimate will be accepted. At the suitability stage, even a
marginal contribution to the achievement of the goal will suffice.
At the necessity stage, it is very rare for a policy to fail because
less restrictive alternatives normally come with some
disadvantage and cannot, therefore, be considered equally
effective. Thus, the balancing stage dominates the legal analysis
and is usually determinative of the outcome.
55 On this issue there is a detailed discussion in M Kumm, ‘Political Liberalism and the Structure of
Rights: On the Place and Limits of the Proportionality Requirement’ in Pavlakos (ed), Law,
Rights and Discourse: The Legal Philosophy of Robert Alexy (Oxford, Hart Publishing, 2007)
131; Moller, the Global Model of Constitutional Rights (Oxford, Oxford University Press, 2012) ch7.
56 As a proposal of how to deal with uncertainty, see Alexy’s ‘Second Law of Balancing’, which he
proposes in the Postscript to A Theory of Constitutional Rights (Oxford, Oxford University Press,
2002).Writ Petition (Civil) No. 494 of 2012 connected matters Page 211 of 567
122) In contrast, Canadian Supreme Court has chartered different
course while using proportionality test. R. v. Oakes57 (popularly
known as Oakes test), has held that the objective must be ‘of
sufficient importance to warrant overriding a constitutionally
protected right or freedom’; there must be a rational connection
between measure and objective; the means must ‘impair “as little
as possible” the right or freedom in question’; and finally, ‘there
must be a proportionality between the effects of the measures
which are responsible for limiting the Charter right or freedom,
and the objective which has been identified as of “sufficient
importance”’. Under this test, arguably more issues are
addressed at the earlier stages. Instead of accepting any
legitimate goal, Oakes requires a goal ‘of sufficient importance to
warrant overriding a constitutionally protected right or freedom’.
And the minimal impairment test is different from the German
necessity test both in the way in which it is formulated (there is no
requirement that the less restrictive measure be equally effective)
and in the way it is applied in practice: the Canadian Supreme
Court tends to resolve cases at that stage and not, as the
German Federal Constitutional Court, at the balancing stage.
123) There is a great debate as to which out of the aforesaid two
57 (1986) 1 SCR 103
Writ Petition (Civil) No. 494 of 2012 connected matters Page 212 of 567
approaches is a better approach. Some jurists are of the viewthat the proper application of the German test leads to a practice
of constitutional review with two connected problems: first, as
pointed about above, usually almost all the moral work is done at
the balancing stage, arguably rendering the earlier stages largely
useless and throwing doubt on the truth of the popular argument
that proportionality is a valuable doctrine partly because it
structures the analysis of rights issues in a meaningful way.
Secondly, the balancing act at the final stage is often carried out
in an impressionistic fashion which seems to be largely unguided
by principle and thus opens the door for subjective, arbitrary and
unpredictable judgments encroaching on what ought to be the
proper domain of the democratic legislature. These concerns
can, however, be addressed. According to Bilchitz 58, first concern
can be addressed by focusing on the necessity stage of the test.
He takes issue with both the German test – according to which
almost all policies are necessary because any alternative policy
will usually have some disadvantage which means that it cannot
be considered equally effective – and the Canadian minimal
impairment test – which, taken seriously, narrows down the range
of constitutionally acceptable policies far too much: ‘minimal
58 ‘Necessity and Proportionality: Towards A Balanced Approach?’, Hart Publishing, Oxford and
Portland, Oregon, 2016.Writ Petition (Civil) No. 494 of 2012 connected matters Page 213 of 567
impairment’ can be read as insisting that only one measure could
pass constitutional scrutiny, namely the measure which impairs
the right least.59 So the alternatives seem to be either to
construct the necessity (minimal impairment) test as filtering out
almost nothing or to allow only one policy, thus rendering the
elected branches partly superfluous. In order to preserve a
meaningful but not unduly strict role for the necessity stage,
Bilchitz proposes the following inquiry. First, a range of possible
alternatives to the measure employed by the Government must
be identified. Secondly, the effectiveness of these measures
must be determined individually; the test here is not whether each
respective measure realises the governmental objective to the
same extent, but rather whether it realises it in a ‘real and
substantial manner’. Thirdly, the impact of the respective
measures on the right at stake must be determined. Finally, an
overall judgment must be made as to whether in light of the
findings of the previous steps, there exists an alternative which is
preferable; and this judgment will go beyond the strict means-
ends assessment favoured by Grimm and the German version of
the proportionality test; it will also require a form of balancing to
59 On the various problems which the Canadian Supreme Court created for itself because of its
early unfortunate statements on proportionality see S Choudhry, ‘So What Is the Real Legacy of
Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1’ (2006)
34 Supreme Court Law Review 501.Writ Petition (Civil) No. 494 of 2012 connected matters Page 214 of 567
be carried out at the necessity stage.
124) Insofar as second problem in German test is concerned, it can be
taken care of by avoiding ‘ad-hoc balancing’ and instead
proceeding on some ‘bright-line rules’ i.e. by doing the act of
balancing on the basis of some established rule or by creating a
sound rule. We may point out that whereas Chandrachud, J. has
formulated the test of ‘legitimate state interest’, other two of the
Judges, namely, Chelameswar and Sapre, JJ. have used the test
of ‘compelling state interest’ and not ‘legitimate state interest’.
On the other hand, S.K. Kaul, J. has held that the test to be
applied is whether the law satisfies ‘public interest’. Nariman, J.,
on the other hand, pointed out that the Right to Information Act,
2005 has provided for personal information being disclosed to
third parties subject to ‘larger public interest’ being satisfied. If
this test is applied, the result is that one would be entitled to
invoke ‘large public interest’ in lieu of ‘legitimate state aim’ or
‘legitimate state interest’, as a permissible restriction on a claim to
privacy of an individual – a more lenient test. However, since
judgment of Chandrachud, J. is on behalf of himself and three
other Judges and S.K. Kaul, J. has also virtually adopted the
same test, we can safely adopt the test of ‘legitimate state
interest’ as the majority opinion, instead of applying the test of
Writ Petition (Civil) No. 494 of 2012 connected matters Page 215 of 567
‘compelling state interest’.125) In Modern Dental College Research Centre, four sub
components or proportionality which need to be satisfied were
taken note of. These are:
(a) A measure restricting a right must have a legitimate goal
(legitimate goal stage).
(b) It must be a suitable means of furthering this goal (suitability
or rationale connection stage).
(c) There must not be any less restrictive but equally effective
alternative (necessity stage).
(d) The measure must not have a disproportionate impact on
the right holder (balancing stage).
126) This has been approved in K.S. Puttaswamy as well. Therefore,
the aforesaid stages of proportionality can be looked into and
discussed. Of course, while undertaking this exercise it has also
to be seen that the legitimate goal must be of sufficient
importance to warrant overriding a constitutionally protected right
or freedom and also that such a right impairs freedom as little as
possible. This Court, in its earlier judgments, applied German
approach while applying proportionality test to the case at hand.
We would like to proceed on that very basis which, however, is
Writ Petition (Civil) No. 494 of 2012 connected matters Page 216 of 567
tempered with more nuanced approach as suggested by Bilchitz.This, in fact, is the amalgam of German and Canadian approach.
We feel that the stages, as mentioned in Modern Dental College
Research Centre and recapitulated above, would be the safe
method in undertaking this exercise, with focus on the
parameters as suggested by Bilchitz, as this projects an ideal
approach that need to be adopted.
Issues:
127) After setting the tone of the case, it is now time to specify the
precise issues which are involved that need to be decided in
these matters:
(1) Whether the Aadhaar Project creates or has tendency to
create surveillance state and is, thus, unconstitutional on
this ground?(a) What is the magnitude of protection that needs to be
accorded to collection, storage and usage of
biometric data?(b) Whether the Aadhaar Act and Rules provide such
protection, including in respect of data minimisation,
purpose limitation, time period for data retention and
data protection and security?(2) Whether the Aadhaar Act violates right to privacy and is
unconstitutional on this ground?{This issue is considered in the context of Sections 7 and 8
of the Aadhaar Act. Incidental issue of ‘Exclusion’ is also
considered here}(3) Whether children can be brought within the sweep of
Sections 7 and 8 of the Aadhaar Act?Writ Petition (Civil) No. 494 of 2012 connected matters Page 217 of 567
(4) Whether the following provisions of the Aadhaar Act and
Regulations suffer from the vice of unconstitutionality:(i) Sections 2(c) and 2(d) read with Section 32
(ii) Section 2(h) read with Section 10 of CIDR
(iii) Section 2(l) read with Regulation 23
(iv) Section 2(v)
(v) Section 3
(vi) Section 5
(vii) Section 6
(viii) Section 8
(ix) Section 9
(x) Sections 11 to 23
(xi) Sections 23 and 54
(xii) Section 23(2)(g) read with Chapter VI VII –
Regulations 27 to 32(xiii) Section 29
(xiv) Section 33
(xv) Section 47
(xvi) Section 48
(xvii) Section 57
(xviii) Section 59(5) Whether the Aadhaar Act defies the concept of Limited
Government, Good Governance and Constitutional Trust?(6) Whether the Aadhaar Act could be passed as ‘Money Bill’
within the meaning of Article 110 of the Constitution?(7) Whether Section 139AA of the Income Tax Act, 1961 is
violative of right to privacy and is, therefore,
unconstitutional?(8) Whether Rule 9(a)(17) of the Prevention of Money
Laundering (Maintenance of Records) Rules, 2005 and the
notifications issued thereunder, which mandate linking of
Aadhaar with bank accounts, are unconstitutional?(9) Whether Circular dated March 23, 2017 issued by the
Department of Telecommunications mandating linking of
mobile number with Aadhaar is illegal and unconstitutional?Writ Petition (Civil) No. 494 of 2012 connected matters Page 218 of 567
(10) Whether certain actions of the respondents are in
contravention of the interim orders passed by the Court, if
so, the effect thereof?128) We now proceed to discuss the arguments on these grounds, as
advanced by the petitioners, reply thereto and our conclusions
thereupon.
Surveillance:
Whether the Aadhaar Project creates or has tendency to create
surveillance state and is, thus, unconstitutional on this ground?Education took us from thumb impression to signature
Technology has taken us from signature to thumb impression, again129) It may be remarked at the outset that the argument of
surveillance draws sustenance, to a larger extent, from privacy
rights as well. Therefore, the arguments which were addressed
under this caption have traces of privacy also. However, these
are discussed in the context of surveillance state argument.
130) It was submitted that Aadhaar project creates the architecture of
a ‘cradle to grave’ surveillance state and society. This means that
it enables the State to profile citizens, track their movements,
assess their habits and silently influence their behaviour
throughout their lives. Over time, the profiling enables the State to
stifle dissent and influence political decision making. The
Writ Petition (Civil) No. 494 of 2012 connected matters Page 219 of 567
architecture of the project comprises a Central Identities DataRepository which stores and maintains authentication transaction
data. The authentication record comprises the time of
authentication and the identity of the requesting entity. The UIDAI
and the Authentication Service Agency (ASA) is permitted to store
this authentication record for 2 + 5 years (as per Regulations 20
and 26/27 of the Authentication Regulations). Based on this
architecture it is possible for the State to track down the location
of the person seeking authentication. Since the requesting entity
is also identified, the activity that the citizen is engaging in is also
known. (Sections 2(d), 2(h), 8, 10, 32 of the Act read with
Regulations 18, 20, 26 of the Aadhaar (Authentication)
Regulation, 2016).
131) According to the petitioners, the Authority has the following
information (according to the document on technical specification
of Aadhaar registered devices published by the Authority in
February 2017) – Aadhaar number, name of Aadhaar holder,
whether authentication failed or was successful, reason for such
failure, requesting entities’ Internet Protocol (IP) address, date
and time of authentication, device ID and its unique ID of
authentication device which can be used to locate the individual.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 220 of 567
132) Authentication of Aadhaar number enables tracking, tagging and
profiling of individuals as the IP Address of the authentication
device gives an idea of its geographical location (determinable
within the range of 2 kilometres), country, city, region, pin
code/zip code). Mr. Divan submits that an individual is on an
electronic leash, tethered to a central data repository that has the
architecture to track all activities of an individual. The Aadhaar
Act creates a database of all Indian residents and citizens with
their core biometric information, demographic information and
meta data. In light of the enormous potential of information,
concentration of information in a single entity, i.e., the Authority,
enabling easier access to aggregated information puts the State
in a position to wield enormous power. Given that with
advancements in technology, such information can affect every
aspect of an individual’s personal, professional, religious and
social life, such power is a threat to individual freedoms
guaranteed under Articles 19(1)(a) to 19(1)(g) of the Constitution
and other fundamental rights guaranteed under Article 21 (Right
to informational privacy) and Article 25 of the Constitution. It was
submitted that the Aadhaar Act treats the entire populace of the
country as potential criminals ignoring the necessity to balance
the State’s mandate of protection against crime with the right to
Writ Petition (Civil) No. 494 of 2012 connected matters Page 221 of 567
personal bodily integrity which is envisaged under Article 21 readwith Article 20(3) of the Constitution. It does not require the
collection of data to have a nexus with a crime. Mr. Sibal submits
that in the decision in Selvi Ors. v. State of Karnataka60, this
Court has held:
“The theory of interrelationship of rights mandates that the
right against self-incrimination should also be read as a
component of “personal liberty” under Article 21. Hence,
our understanding of the “right to privacy” should account
for its intersection with Article 20(3)”133) It is argued that the Aadhaar Act, therefore, violates the right to
protection from self-incrimination, and the right to privacy and
personal dignity/bodily integrity under Article 20(3) and Article 21.
134) It was argued that the Constitution of India repudiates mass
surveillance as enabled by Aadhaar and the project ought to be
struck down on this ground alone. There is no question of
balancing or justification in case of a surveillance architecture.
135) Passages from various judgments were quoted in an attempt to
establish that surveillance causes interference with right to
privacy, life and liberty. From Kharak Singh v. State of U.P. 61,
dissenting opinion of Subba Rao, J. (which has been upheld in
K.S. Puttaswamy) was relied upon. With respect to how
60 (2010) 7 SCC 263
61 (1964) 1 SCR 332
Writ Petition (Civil) No. 494 of 2012 connected matters Page 222 of 567
surveillance constricts right to life and liberty, His Lordship heldthat:
“Now let us consider the scope of Article 21. The
expression "life" used in that Article cannot be confined
only to the taking away of life, i.e., causing death. In Munn
v. Illinois (1), Field, J., defined "life" in the following words:“Something more than mere animal existence. The
inhibition against its deprivation extends to all those
limbs and faculties by which life is enjoyed. The
provision equally prohibits the mutilation of the body
by the amputation of an arm or leg, or the putting out
of an eye, or the destruction of any other organ of the
body through which the soul communicates with the
outer world. The expression "'liberty" is given a very
wide meaning in America. It takes in all the freedoms.
In Bolling v. Sharpe (2), the Supreme Court of
America observed that the said expression was not
confined to mere freedom from bodily restraint and
that liberty under law extended to the full range of
conduct which the individual was free to pursue. But
this absolute right to liberty was regulated to protect
other social interests by the State exercising its
powers such as police power, the power of eminent
domain, the power of taxation etc. The proper
exercise of the power which is called the due process
of law is controlled by the Supreme Court of America.
In India the word "liberty" has been qualified by the
word "Personal", indicating thereby that it is confined
only to the liberty of the person. The other aspects of
the liberty have been provided for in other Articles of
the Constitutionxx xx xx
It is true our Constitution does not expressly declare a
right to privacy as a fundamental right, but the said
right is an essential ingredient of personal liberty.Every democratic country sanctifies domestic life; it is
expected to give him rest, physical happiness, peace
of mind and security. In the last resort, a person's
house, where he lives with his family, is his “castle”; it
is his rampart against encroachment on his personal
liberty. The pregnant words of that famous Judge,Writ Petition (Civil) No. 494 of 2012 connected matters Page 223 of 567
Frankfurter J., in Wolf v. Colorado [[1949] 238 US 25]
pointing out the importance of the security of one's
privacy against arbitrary intrusion by the police, could
have no less application to an Indian home as to an
American one. If physical restraints on a person's
movements affect his personal liberty, physical
encroachments on his private life would affect it in a
larger degree. Indeed, nothing is more deleterious to
a man's physical happiness and health than a
calculated interference with his privacy. We would,
therefore, define the right of personal liberty in Article
21 as a right of an individual to be free from
restrictions or encroachments on his person, whether
those restrictions or encroachments are directly
imposed or indirectly brought about by calculated
measures.xx xx xx
The freedom of movement in clause (d) of Article 19
therefore must be a movement in a free country i.e. in
a country where he can do whatever he likes, speak
to whomsoever he wants, meet people of his own
choice without any apprehension, subject of course to
the law of social control. The petitioner under the
shadow of surveillance is certainly deprived of this
freedom. He can move physically, but he cannot do
so freely, for all his activities are watched and noted.
The shroud of surveillance cast upon him perforce
engender inhibitions in him and he cannot act freely
as he would like to do. ”136) In the case of District Registrar and Collector, Hyderabad and
Anr. v. Canara Bank and Ors.62, this Court struck down provisions
of a legislation on grounds that it was too intrusive of citizens’
right to privacy. The case involved an evaluation of the Andhra
Pradesh Stamp Act which authorized the collector to delegate
“any person” to enter any premises in order to search for and
62 (2005) 1 SCC 496
Writ Petition (Civil) No. 494 of 2012 connected matters Page 224 of 567
impound any document that was found to be improperly stamped.After an exhaustive analysis of privacy laws across the world, and
in India, the Court held that in the absence of any safeguards as
to probable or reasonable cause or reasonable basis, this
provision was violative of the constitutionally guaranteed right to
privacy “both of the house and of the person”. The Court held:
“The A.P. amendment permits inspection being carried out
by the Collector by having access to the documents which
are in private custody i.e. custody other than that of a
public officer. It is clear that this provision empowers
invasion of the home of the person in whose possession
the documents 'tending' to or leading to the various facts
stated in sec. 73 are in existence and sec. 73 being one
without any safeguards as to probable or reasonable cause
or reasonable basis or materials violates the right to
privacy both of the house and of the person. We have
already referred to R. Rajagopal's case wherein the
learned judges have held that the right to personal liberty
also means the life free from encroachments unsustainable
in law and such right flowing from Article 21 of the
Constitution.”137) Reference was made to the U.S Supreme Court case of U.S. v.
Jones63 where the court held that installing a Global Positioning
System (GPS) tracking device on a vehicle and using the device
to monitor the vehicle's movements constitutes an unlawful
search under the Fourth Amendment. Sotomayor, J. in her
concurring judgment observed that Fourth Amendment search
and seizure is not only concerned with physical trespassory
intrusions on property but also non-physical violation of privacy
63 132 S.Ct. 945 (2012)
Writ Petition (Civil) No. 494 of 2012 connected matters Page 225 of 567
that society recognizes as reasonable. She notes that GPS datacan reveal an entire profile of a person simply by knowing the
places she visits and that the Government can mine this data in
the future:
“With increasing regularity, the Government will be capable
of duplicating the monitoring undertaken in this case by
enlisting factory or owner-installed vehicle tracking devises
or GPS enabled smart-phones … In cases of electronic or
other novel modes of surveillance that do not depend upon
a physical invasion on property, the trespassory test may
provide little guidance.xx xx xx
GPS monitoring generates a precise, comprehensive
record of a person’s public movements that reflects a
wealth of detail about her familial, political, professional,
religious, and sexual associations … disclosed GPS data
will be trips to the psychiatrist, plastic surgeon, abortion
clinic, AIDS treatment centre, strip club, criminal defence
attorney …Government can store such records and efficiently mine
them for information years into the future… awareness that
the government may be watching chills associational and
expressive freedom … it may alter the relationship between
citizen and government in a way that is inimical to
democratic society.xx xx xx
I would not assume that all information voluntarily disclosed
to some member of the public for a limited purpose is, for
that reason alone, disentitled to Fourth Amendment
protection … (“Privacy is not a discrete commodity,
possessed absolutely or not at all. Those who disclose
certain facts to a bank or phone company for a limited
business purpose need not assume that this information
will be released to other persons for other purposes”) ...(“[W]hat [a person] seeks to preserve as private, even in an
area accessible to the public, may be constitutionally
protected”).”
Writ Petition (Civil) No. 494 of 2012 connected matters Page 226 of 567138) The judgment of the ECtHR in Zakharov v. Russia64 was also
referred to where the ECtHR examined an application claiming
violation of Article 8 of the Convention (right to respect for private
and family life) alleging that the mobile operators had permitted
unrestricted interception of all telephone communications by the
security services without prior judicial authorisation, under the
prevailing national law. The Court observed that:
“Mr Zakharov was entitled to claim to be a victim of a
violation of the European Convention, even though he was
unable to allege that he had been the subject of a concrete
measure of surveillance. Given the secret nature of the
surveillance measures provided for by the legislation, their
broad scope (affecting all users of mobile telephone
communications) and the lack of effective means to
challenge them at national level… Russian law did not
meet the “quality of law” requirement and was incapable of
keeping the interception of communications to what was
“necessary in a democratic society”. There had accordingly
been a violation of Article 8 of the Convention… existence
of arbitrary and abusive surveillance practices, which
appear to be due to inadequate safeguards provided by
law”.139) The Court held that any interference with the right to privacy
under Article 8 can only be justified under Article 8(2) if it is in
accordance with law, pursues one or more legitimate aims and is
necessary in a democratic society to achieve such aim. “In
accordance with the law” requires the impugned measure both to
have some basis in domestic law and to be compatible with the
64 (2015) Application No. 47143/2006
Writ Petition (Civil) No. 494 of 2012 connected matters Page 227 of 567
rule of law, which is expressly mentioned in the Preamble to theConvention and inherent in the object and purpose of Article 8.
The law must, thus, meet quality requirements: it must be
accessible to the person concerned and foreseeable as to its
effects. With respect to foreseeability of surveillance, the court
held:
“Foreseeability in the special context of secret measures of
surveillance, such as the interception of communications,
cannot mean that an individual should be able to foresee
when the authorities are likely to intercept his
communications so that he can adapt his conduct
accordingly. However, especially where a power vested in
the executive is exercised in secret, the risks of
arbitrariness are evident. It is therefore essential to have
clear, detailed rules on interception of telephone
conversations, especially as the technology available for
use is continually becoming more sophisticated. The
domestic law must be sufficiently clear to give citizens an
adequate indication as to the circumstances in which and
the conditions on which public authorities are empowered
to resort to any such measures.xx xx xx
Since the implementation in practice of measures of secret
surveillance of communications is not open to scrutiny by
the individuals concerned or the public at large, it would be
contrary to the rule of law for the discretion granted to the
executive or to a judge to be expressed in terms of an
unfettered power. Consequently, the law must indicate the
scope of any such discretion conferred on the competent
authorities and the manner of its exercise with sufficient
clarity to give the individual adequate protection against
arbitrary interference.”140) The Court observed that the following minimum safeguards that
should be set out in law in order to avoid abuses of power for
Writ Petition (Civil) No. 494 of 2012 connected matters Page 228 of 567
surveillance are: the nature of offences which may give rise to aninterception order; a definition of the categories of people liable to
have their telephones tapped; a limit on the duration of telephone
tapping; the procedure to be followed for examining, using and
storing the data obtained; the precautions to be taken when
communicating the data to other parties; and the circumstances
in which recordings may or must be erased or destroyed.
141) For establishing if the measures were “necessary in a democratic
society” in pursuit of a legitimate aim, the Court observed:
“When balancing the interest of the respondent State in
protecting its national security through secret surveillance
measures against the seriousness of the interference with
an applicant’s right to respect for his or her private life, the
national authorities enjoy a certain margin of appreciation
in choosing the means for achieving the legitimate aim of
protecting national security. However, this margin is subject
to European supervision embracing both legislation and
decisions applying it. In view of the risk that a system of
secret surveillance set up to protect national security may
undermine or even destroy democracy under the cloak of
defending it, the Court must be satisfied that there are
adequate and effective guarantees against abuse. The
assessment depends on all the circumstances of the case,
such as the nature, scope and duration of the possible
measures, the grounds required for ordering them, the
authorities competent to authorise, carry out and supervise
them, and the kind of remedy provided by the national law.The Court has to determine whether the procedures for
supervising the ordering and implementation of the
restrictive measures are such as to keep the “interference”
to what is “necessary in a democratic society”.”142) Two other cases of violation of Article of the European
Writ Petition (Civil) No. 494 of 2012 connected matters Page 229 of 567
Convention of Human Rights were cited, namely Digital RightsIreland Ltd. v. Minister for Communication, Marine and Natural
Resources65 and S and Marper v. United Kingdom66. In Digital
Ireland, the European Parliament and the Council of the
European Union adopted Directive 2006/24/EC (Directive), which
regulated Internet Service Providers’ storage of
telecommunications data. It could be used to retain data
generated or processed in connection with the provision of
publicly available electronic communications services or of public
communications network for the purpose of fighting serious crime
in the European Union (EU). The data included data necessary to
trace and identify the source of communication and its
destination, to identify the date, time duration, type of
communication, IP address, telephone number and other fields.
The European Court of Justice (ECJ) evaluated the compatibility
of the Directive with Articles 7 and 8 of the Charter of
Fundamental Rights of the European Union and declared the
Directive to be invalid. According to the ECJ, the Directive
interfered with the right to respect for private life under Article 7
and with the right to the protection of personal data under Article
8. It allowed very precise conclusion to be drawn concerning the
65 [2014] All ER (D) 66 (Apr)
66 (2008) ECHR 1581
Writ Petition (Civil) No. 494 of 2012 connected matters Page 230 of 567
private lives of the persons whose data had been retained, suchas habits of everyday life, permanent or temporary places of
residence, daily and other movements, activities carried out,
social relationships and so on. The invasion of right was not
proportionate to the legitimate aim pursued.
143) In S and Marper, the storing of DNA profiles and cellular samples
of any person arrested in the United Kingdom was challenged
before the ECtHR. Even if the individual was never charged, if
criminal proceedings were discontinued, or if the person was later
acquitted of any crime, their DNA profile could nevertheless be
kept permanently on record. It held that there had been a
violation of Article 8 of the ECHR. Fingerprints, DNA profiles and
cellular samples, constituted personal data and their retention
was capable of affecting private life of an individual. Retention of
such data without consent, thus, constitutes violation of Article 8
as they relate to identified and identifiable individuals. The Court
held that invasion of privacy was not “necessary in a democratic
society as it did not fulfill any pressing social need. The blanket
and indiscriminate nature of retention of data was excessive and
did not strike a balance between private and public interest.
144) The respondents, on the other hand, rebutted the arguments of
Writ Petition (Civil) No. 494 of 2012 connected matters Page 231 of 567
the petitioners that the architecture of the Aadhaar Act enablesState surveillance. It was submitted that bare minimal information
was obtained from the individual who enrolled for Aadhaar.
Insofar as demographic information is concerned, it included
name, date of birth, address, gender, mobile number and email
address. The latter two are optional and meant for transmitting
relevant information to the AMH and for One Time Password
(OTP) based authentication. This information was in respect of
an individual and is always in public domain. Section 2(k) of the
Aadhaar Act specifically provides that regulations cannot include
race, religion, caste, tribe, ethnicity, language, records of
entitlement, income or medical history. Therefore, sensitive
information specifically stands excluded. This specific exclusion,
in the context, ensures that the scope of including additional
demographic information is very narrow and limited. It was also
argued that even the biometric information was limited to the
fingerprints and iris scan, which is considered to be the core
biometric information. Such information is, again, frequently
utilised globally to ascertain the identity of a person. The
argument was, thus, that the information gathered was non-
invasive and non-intrusive identity information.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 232 of 567
145) It was also argued that the very scheme of the Aadhaar and the
manner in which it operates excludes every possibility of data
profiling and, therefore, the question of State surveillance would
not arise. The powerpoint presentation which was given by Dr.
Pandey, as has been stated above, was referred to, on the basis
of which it was argued that the Aadhaar design takes full care of
security of persons.
146) It was also argued by the respondents that identity information
data resides in the CIDR which is not in the control of the
Government or the police force. The Authority is a body
constituted as a body corporate having perpetual succession and
a common seal. It is regulated by substantive and procedural
checks to protect the identity information and authentication
record. This information cannot be published, displayed or posted
publicly. It does not have the authority to carry out surveillance.
The State Governments and the police forces cannot obtain the
information contained in the CIDR or the authentication records
except in two situations contemplated by Section 33 – (i) When
the District Judge orders so after giving an opportunity of hearing
to the authority (even in this situation core biometric information
will not be shared; and (ii) in the interest of National Security
Writ Petition (Civil) No. 494 of 2012 connected matters Page 233 of 567
where a Joint Secretary or a superior officer of the Government ofIndia specially authorizes in this behalf, and in this case every
direction is reviewed by an oversight committee chaired by the
Cabinet Secretary. Further, this direction is limited for three
months and extendable by a further period of 3 months.
147) It was submitted that surveillance, if at all, can only be carried out
by unauthorised use of CIDR information, despite its statutory
prohibition and punitive injunctions or by other means such as
physical surveillance. That is, however, an illegal surveillance.
The architecture of the Act does not allow surveillance. It was
submitted that the petitioners have not made out a case of
surveillance by the Authority but points out a mere possibility of
surveillance.
148) We may reiterate that the argument of surveillance also has the
reflections of privacy and in fact the argument is structured on the
basis that the vital information which would be available with the
Government can be utilised to create the profiling of individuals
and retention of such information in the hands of the respondents
is a risky affair which may enable the State to do the surveillance
of any individual it wants.
149) Insofar as the aspect of privacy of individual is concerned, that
Writ Petition (Civil) No. 494 of 2012 connected matters Page 234 of 567
would be dealt with in detail while addressing that issue. Tosegregate issue of surveillance from privacy, we are focusing the
discussion to the aspect whether there is sufficient data available
with the respondents which may facilitate the profiling and misuse
thereof or whether there are sufficient safeguards to ward off the
same. In the process, we would be discussing the issues
pertaining to data protection as well. At the same time, there
would be some overlapping of discussion inasmuch as it will have
to be seen as to the collection, storage and use of biometric data
satisfies the proportionality principle.
150) It is clear that the argument of the petitioners is that on the basis
of the data available with the Authority, there can be a profiling of
an individual which may make the surveillance state. And such a
mass surveillance is not permitted by the Constitution of India.
The entire foofaraw about the Aadhaar architecture is the so-
called enormous information that would be available to the
Government on using Aadhaar card by residents. Two issues
arise from the respective arguments of the parties:
(a) whether the architecture of the Aadhaar project enables the
Sate to create a regime of surveillance?; and
(b) whether there are adequate provisions for data protection?
Writ Petition (Civil) No. 494 of 2012 connected matters Page 235 of 567
151) Insofar as issue (a) above is concerned, after going through the
various aspects of the Aadhaar project, the provisions of the
Aadhaar Act and the manner in which it operates, it is difficult to
accept the argument of the petitioners. The respondents have
explained that the enrolment and authentication processes are
strongly regulated so that data is secure. The enrolment agency,
which collects the biometric and demographic of the individuals
during enrolment, is appointed either by UIDAI or by a Registrar
[Section 2(s)]. The Registrars are appointed through MoUs or
agreements for enrolment and are to abide by a code of conduct
and processes, policies and guidelines issued by the Authority.
They are responsible for the process of enrolment. Categories of
persons eligible for appointment are limited by the Regulations.
The agency employs a certified supervisor, an operator and a
verifier under Enrolment and Update Regulations. Registrars and
the enrolling agencies are obliged to use the software provided or
authorized by UIDAI for enrolment purpose. The standard
software has security features as specified by the Authority. All
equipment used is as per the specification issued by the
Authority. The Registrars are prohibited from using the
information collected for any purpose other than uploading the
information to CIDR. Sub-contracting of enrolment function is not
Writ Petition (Civil) No. 494 of 2012 connected matters Page 236 of 567
allowed. The Code of Conduct contains specific directions forfollowing the confidentiality, privacy and security protocols and
submission of periodic reports of enrolment. Not only there are
directions prohibiting manipulation and fraudulent practices but
the Act contains penal provisions for such violations in Chapter
VII of the Regulations. The enrolment agencies are empanelled
by the Authority. They are given an enrolling agency code using
which the Registrar can onboard such agency to the CIDR. The
enrolment data is uploaded to the Central Identities Data
Repository (CIDR) certified equipment and software with a digital
signature of the Registrar/enrolling agency. The data is encrypted
immediately upon capture. The decryption key is with the UIDAI
solely. Section 2(ze) of the Information Technology Act, 2000
(hereinafter referred to as the ‘IT Act’) which defines ‘secure
systems’ and Section 2(w) of the Act, which defines
‘intermediaries’ apply to the process. Authentication only
becomes available through the Authentication Service Agency
(ASA). They are regulated by the Aadhaar (Authentication)
Regulations, 2016. Their role and responsibilities are provided by
Regulation 19 of the Authentication Regulations. They are to use
certified devices. The equipment or software has to be duly
registered with or approved or certified by the Authority/agency.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 237 of 567
The systems and operations are audited by information systemauditor. The requesting entities pass the encrypted data to the
CIDR through the ASA and the response (Yes/No authentication
or e-KYC information) also takes the same route back. The
server of the ASA has to perform basic compliance and
completeness checks on the authentication data packet before
forwarding it to the CIDR. The Act prohibits sharing and
disclosure of core biometric data under Section 8 and 29. Other
identity information is shared with requesting entity (AUAs and
KUAs) only for the limited purpose of authentication. The data is
transferred from the requesting entity to the ASA to the CIDR in
an encrypted manner through a leased line circuitry using secure
Protocols (Regulation 9 of the Authentication Regulations). The
storage of data templates is in safely located servers with no
public internet inlet/outlet, and offline storage of original
encrypted data (PID blocks). There are safety and security
provisions such as audit by Information Systems Auditor.
Requesting entities are appointed through agreement. They can
enter into agreement with sub-AUA or sub-KUA with permission
of the UIDAI. Whatever identity information is obtained by the
requesting entity is based on a specific consent of the Aadhaar
number holder. The e-KYC data shared with the requesting entity
Writ Petition (Civil) No. 494 of 2012 connected matters Page 238 of 567
can only be after prior consent of the Aadhaar holder. Such datacannot be shared and has to be stored in encrypted form. The
biometric information used is not permitted to be stored. Only the
logs of authentication transactions are maintained for a short
period. Full identity information is never transmitted back to the
requesting entity. There is a statutory bar from sharing biometric
information (Section 29(1)(a)/Section 29(4)). Data centres of
ASA, requesting entities and CIDR should be within the territory
of India. There are various other provisions for monitoring,
auditing, inspection, limits on data sharing, data protection,
punishments etc., grievance redressal mechanism, suspension
and termination of services, etc. so that all actions the entities
involved in the process are regulated. Regulation 3(i) (j) of
Aadhaar (Data Security) Regulation, 2016 enables partitioning of
CIDR network into zones based on risk and trust and other
security measures. CIDR being a computer resource is notified to
be a “Protected System” under Section 70 of the IT Act by the
Central Government on December 11, 2015. Anyone trying to
unlawfully gain access into this system is liable to be punished
with 10 years imprisonment and fine. The storage involves end to
end encryption, logical partitioning, firewalling and anonymisation
of decrypted biometric data. Breaches of penalty are made
Writ Petition (Civil) No. 494 of 2012 connected matters Page 239 of 567
punitive by Chapter VII of the Act. Biometric information isdeemed to be an “electronic record”, and “Sensitive personal data
or information” under the IT Act. There are further guards under
the Aadhaar (Data Security) Regulations, 2016.
152) That apart, we have recorded in detail the powerpoint
presentation that was given by Dr. Ajay Bhushan Pandey, CEO of
the Authority, which brings out the following salient features:
(a) During the enrolment process, minimal biometric data in the
form of iris and fingerprints is collected. The Authority does not
collect purpose, location or details of transaction. Thus, it is
purpose blind. The information collected, as aforesaid, remains
in silos. Merging of silos is prohibited. The requesting agency is
provided answer only in ‘Yes’ or ‘No’ about the authentication of
the person concerned. The authentication process is not
exposed to the Internet world. Security measures, as per the
provisions of Section 29(3) read with Section 38(g) as well as
Regulation 17(1)(d) of the Authentication Regulations are strictly
followed and adhered to.
(b) There are sufficient authentication security measures taken
as well, as demonstrated in Slides 14, 28 and 29 of the
presentation.
(c) The Authority has sufficient defence mechanism, as
Writ Petition (Civil) No. 494 of 2012 connected matters Page 240 of 567
explained in Slide 30. It has even taken appropriate protectionmeasures as demonstrated in Slide 31.
(d) There is an oversight by Technology and Architecture
Review Board (TARB) and Security Review Committee.
(e) During authentication no information about the nature of
transaction etc. is obtained.
(f) The Authority has mandated use of Registered Devices
(RD) for all authentication requests. With these, biometric data is
signed within the device/RD service using the provider key to
ensure it is indeed captured live. The device provider RD service
encrypts the PID block before returning to the host application.
This RD service encapsulates the biometric capture, signing and
encryption of biometrics all within it. Therefore, introduction of
RD in Aadhaar authentication system rules out any possibility of
use of stored biometric and replay of biometrics captured from
other source. Requesting entities are not legally allowed to store
biometrics captured for Aadhaar authentication under Regulation
17(1)(a) of the Authentication Regulations.
(g) The Authority gets the AUA code, ASA code, unique device
code, registered device code used for authentication. It does not
get any information related to the IP address or the GPS location
from where authentication is performed as these parameters are
Writ Petition (Civil) No. 494 of 2012 connected matters Page 241 of 567
not part of authentication (v2.0) and e-KYC (v2.1) API. TheAuthority would only know from which device the authentication
has happened, through which AUA/ASA etc. It does not receive
any information about at what location the authentication device
is deployed, its IP address and its operator and the purpose of
authentication. Further, the authority or any entity under its
control is statutorily barred from collecting, keeping or maintaining
any information about the purpose of authentication under
Section 32(3) of the Aadhaar Act.
153) After going through the Aadhaar structure, as demonstrated by
the respondents in the powerpoint presentation from the
provisions of the Aadhaar Act and the machinery which the
Authority has created for data protection, we are of the view that
it is very difficult to create profile of a person simply on the basis
of biometric and demographic information stored in CIDR. Insofar
as authentication is concerned, the respondents rightly pointed
out that there are sufficient safeguard mechanisms. To
recapitulate, it was specifically submitted that there were security
technologies in place (slide 28 of Dr. Pandey’s presentation), 24/7
security monitoring, data leak prevention, vulnerability
management programme and independent audits (slide 29) as
Writ Petition (Civil) No. 494 of 2012 connected matters Page 242 of 567
well as the Authority’s defence mechanism (slide 30). It wasfurther pointed out that the Authority has taken appropriate pro-
active protection measures, which included disaster recovery
plan, data backup and availability and media response plan (slide
31). The respondents also pointed out that all security principles
are followed inasmuch as: (a) there is PKI-2048 encryption from
the time of capture, meaning thereby, as soon as data is given at
the time of enrolment, there is an end to end encryption thereof
and it is transmitted to the Authority in encrypted form. The said
encryption is almost foolproof and it is virtually impossible to
decipher the same; (b) adoption of best-in-class security
standards and practices; and (c) strong audit and traceability as
well as fraud detection. Above all, there is an oversight of
Technology and Architecture Review Board (TARB) and Security
Review Committee. This Board and Committee consist of very
high profiled officers. Therefore, the Act has endeavoured to
provide safeguards67.
67 We may also take on record responsible statements of the learned Attorney General and Mr.
Dwivedi who appeared for UIDAI that no State would be interested in any mass surveillance of
1.2 Billion people of the country or even the overwhelming majority of officers and employees or
professionals. The very idea of mass surveillance by State which pursues what an ANH does all
the time and based on Aadhaar is an absurdity and an impossibility. According to them, the
petitioners submission is based on too many imaginary possibilities, viz.:(i) Aadhaar makes it possible for the State to obtain identity information of all ANH. It is
possible that UIDAI would share identity information/authentication records in CIDR
notwithstanding statutory prohibition and punitive injunctions in the Act. It is possible that the
State would unleash its investigators to surveil a sizeable section of the ANH, if not all based on
the authentication records. It is submitted that given the architecture of the Aadhaar Act, there
are no such possibilities and in any event, submission based on imaginary possibility do not
provide any basis for questioning the validity of Aadhaar Act. (ii) None of the writ petitions set
forth specific facts and even allegations that any Aadhaar number holder is being subjected to
Writ Petition (Civil) No. 494 of 2012 connected matters Page 243 of 567154) Issue (b) relates to data protection. According to the petitioners
there is no data protection and there is a likelihood of misuse of
data/personal information of the individuals.
155) The question to be determined is whether the safeguards
provided for the protection of personal biometric data in the
Aadhaar Act and Rules are sufficient. The crucial tasks that the
Court needs to undertake are – (i) to discuss the significance of
data in the world of technology and its impact; (ii) to determine
the magnitude of protection that should be accorded to collection,
storage and use of sensitive biometric data, so that they can
qualify as proportionate; and (iii) to determine whether the
Aadhaar Act and Rules provide such data protection, thereby
obviating any possibility of surveillance.
(i) Significance of Data:
156) Alvin Toffler in his illuminating article titled ‘What will our future be
like?’ has presented mind boggling ideas. Toffler traces the
transition – from agriculture society to industry society to
knowledge based society. If we go back to the beginnings of time,
surveillance by UIDAI or the Union/States. The emphasis during the argument was only on the
possibility of surveillance based on electronic track trails and authentication records. It was
asserted that there are tools in the market for track back. The entire case was speculative and
conjectural. In Clapper, Director of National Intelligence v. Amnesty International USA, the
majority judgment did not approve the submissions in the context of Foreign Intelligence
Surveillance Act and one of the reason was that the allegations were conjectural and
speculative. There were no facts pleaded on the basis of which the asserted threat could be
fairly traced to. However, we have not deliberated on this argument.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 244 of 567
agriculture was the prime source and the entire mankind wasbased on agriculture. 350 years later with the invention of steam
engines came the industrialized age and now what we are living
through is the third gigantic wave, which is way more powerful
than industrialized age. An age that is based on knowledge.
Toffler emphasises that in today’s society the only thing that leads
to creation of wealth is knowledge. Unlike the past wherein
economics was described as the science of the allocation of
scarce resources, today we are primarily dependent on
knowledge and that is not a scarce resource. Times are
changing, we can no longer trust the straight line projection. His
view is that we are going from a society which is more and more
uniform to a highly de-massified society. Knowledge is power.
We are in the era of information. Probably what Toffler is hinting
is that access to this vast reservoir of information is available in
digital world. Information is available online, at the touch of a
button. With this, however, we usher into the regime of data.
157) In a recent speech by Mr. Benjamin Netanyahu, Prime Minister of
Israel, while talking about innovation and entrepreneurship, he
brought out an interesting phenomena in the world of free market
principles, i.e. in the era of globalisation, in the following words:
Writ Petition (Civil) No. 494 of 2012 connected matters Page 245 of 567
“Look at the ten leading companies in 2006, five energy
companies, one IT company Microsoft and a mere ten
years later, in 2016, a blink of an eye, in historical terms, its
completely reversed, five IT companies one energy
company left. The true wealth is in innovation - you know
these companies - Apple, Google, Microsoft, Amazon,
Facebook.”158) He adds by making a significant statement as the reason behind
this change:
“...there is a reason something is going on, it’s a great
change - you want to hear a jargan – it’s a one sentence,
this is a terrible sentence, but I have no other way to say,
it’s a confluence of big data, connectivity and artificial
intelligence. Ok, you get that? You know what that does – it
revolutionises old industries and it creates entirely new
industries, so here is an old industry that Israel was always
great in – Agriculture. We are always good in agriculture
but now we have precision agriculture. You know what that
is? See that drone in the sky is connected to a big
database and there is sensor at the field and in the field
there is drip irrigation and drip fertilization and now we can
target with this technology the water that we give, the
fertilizer that we give down to the individual plant that
needs it. That’s precision agriculture, that’s Israel.Unbelievable.”
159) This brings us to the world of data – big data. It has its own
advantages of tremendous nature. It is making life of people
easier. People can connect with each other even when they are
located at places far away from each other. Not only they can
converse with each other but can even see each other while
talking. There is a wealth of information available on different
networks to which they can easily access and satisfy their quest
for knowledge within seconds by getting an answer. People can
Writ Petition (Civil) No. 494 of 2012 connected matters Page 246 of 567
move from one place to the other with the aid of GlobalPositioning System (GPS). They can hear music and watch
movies on their handy gadgets, including smart cellphones. We
are in the age of digital economy which has enabled multiple
avenues for a common man. Internet access is becoming
cheaper by the day, which can be accessed not only through the
medium of desktop computers or laptops and even other handy
gadgets like smart phones. Electronic transactions like online
shopping, bill payments, movie/train/air ticket bookings, funds
transfer, e-wallet payments, online banking and online insurance
etc. are happening with extreme ease at the touch of a finger.
Such tasks can be undertaken sitting in drawing rooms. Even
while travelling from one place to the other in their car, they can
indulge in all the aforesaid activities. In that sense, technology
has made their life so easy.
160) However, there is another side to do as well, like any coin which
has two sides. The use of such technologies is at the cost of
giving away personal information, which is in the realm of privacy.
In order to connect with such technologies and avail their
benefits, the users are parting with their biometric information like
fingerprints and iris as well as demographic information like their
Writ Petition (Civil) No. 494 of 2012 connected matters Page 247 of 567
names, parentage, family members, their age, even personalinformation like their sex, blood group or even the ailments they
are suffering from. Not only this, use of aforesaid facilities on net
or any portal like Apple, Google, Facebook etc. involves tracking
their movements, including the nature of activities, like the kind of
shopping, the places from where shopping is done, the actual
money spent thereon, the nature of movies watched etc. All this
data is there with the companies in respect of its users which may
even turn into metadata. In fact, cases after cases are reported
where such data of users is parted with various purposes.
Interestingly, for using such facilities, people knowingly and
willingly, are ready to part with their vital personal information.
Every transaction on a digital platform is linked with some form of
sensitive personal information. It can be an individual’s user
name, password, account number, PAN number, biometric
details, e-mail ID, debit/credit card number, CVV number and
transaction OTP etc.
161) These have raised concerns about the privacy and protection of
data, which has become a matter of great concern. Problem is
not limited to data localisation but has become extra-territorial.
There are issues of cross-border transfers of personal data,
Writ Petition (Civil) No. 494 of 2012 connected matters Page 248 of 567
regulation whereof is again a big challenge with which variousopinions are grappling. There are even talks of convergence of
regulatory regime in this behalf so that uniform approach is
adopted in providing a legal ecosystem to regulate cross-border
data transfer. Asian Business Law Institute (ABLI), in
collaboration with Singapore Academy of Law (SAL) has, after
undertaking in-depth study, compiled 14 country reports in their
respective jurisdictions on the regulation of cross-border data
transfer and data localisation in Asia.
162) In the aforesaid scenario, interesting issue is posed by the
respondents, viz., when so much personal information about
people is already available in public domain, how can there be an
expectancy of data privacy. That aspect is dealt with while
discussing the issue of privacy. Here, we are concerned with
data protection under Aadhaar that is available with the State. As
pointed out above, even in respect of private players, the data
protection has become a matter of serious concern. When it
comes to the State or the instrumentality of the State, the matter
has to be taken with all seriousness, on the touchstone of
constitutionalism and the concept of limited Government.
(ii) Law on Data Protection:
Writ Petition (Civil) No. 494 of 2012 connected matters Page 249 of 567
163) In order to determine this aspect, i.e. the nature and magnitude of
data protection that is required to enable legal collection and use
of biometric data, reliance can be placed on – (a) various existing
legislations – both in India and across the world; and (b) case law
including the judgment in K.S. Puttaswamy.
(a) Legislation in India:(i) Information Technology Act, 2000
The only existing legislation covering data protection related
to biometric information are Section 43A and Section 72A of the
IT Act and the Information Technology (Reasonable Security
Practices and Procedures and Sensitive Personal Data or
Information) Rules, 2011 (hereinafter “Sensitive Personal Data
Rules”). Although the IT Act and Rules do not determine the
constitutionality of use of biometric data and information by the
Aadhaar Act and Rules, they are instructive in determining the
safeguards that must be taken to collect biometric information 68.
164) Following are the provisions which cover biometric information
under the IT Act:
Section 43A of the IT Act attaches liability to a body
corporate, which is possessing, handling and dealing with any
68 A challenge to the Aadhaar project for violation of IT Act and Rules has been filed in the Delhi
High Court in the matter of Shamnad Basheer v UIDAI and Ors. Therefore, we are not dealing
with this aspect, nor does it arise for consideration in these proceedings.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 250 of 567
‘sensitive personal information or data’ and is negligent inimplementing and maintaining reasonable security practices
resulting in wrongful loss or wrongful gain to any person.
‘Sensitive personal information or data’ is defined under Rule 3 of
the Sensitive Personal Data Rules to include information relating
to biometric data. Section 43A reads as follows:
“43A. Compensation for failure to protect data. -Where
a body corporate, possessing, dealing or handling any
sensitive personal data or information in a computer
resource which it owns, controls or operates, is negligent in
implementing and maintaining reasonable security
practices and procedures and thereby causes wrongful
loss or wrongful gain to any person, such body corporate
shall be liable to pay damages by way of compensation to
the person so affected.Explanation. -For the purposes of this section,-
(i) "body corporate" means any company and includes
a firm, sole proprietorship or other association of
individuals engaged in commercial or professional
activities;(ii) "reasonable security practices and procedures"
means security practices and procedures designed to
protect such information from unauthorised access,
damage, use, modification, disclosure or impairment, as
may be specified in an agreement between the parties or
as may be specified in any law for the time being in force
and in the absence of such agreement or any law, such
reasonable security practices and procedures, as may be
prescribed by the Central Government in consultation with
such professional bodies or associations as it may deem
fit;(iii) "sensitive personal data or information" means such
personal information as may be prescribed by the Central
Government in consultation with such professional bodies
or associations as it may deem fit.]”Writ Petition (Civil) No. 494 of 2012 connected matters Page 251 of 567
165) Similarly, Section 72A of the IT Act makes intentional disclosure
of ‘personal information’ obtained under a contract, without
consent of the parties concerned and in breach of a lawful
contract, punishable with imprisonment and fine. Rule 2(i) of the
Sensitive Personal Data Rules define "personal information" to
mean any information that relates to a natural person, which,
either directly or indirectly, in combination with other information
available or likely to be available with a body corporate, is
capable of identifying such person. Thus, biometrics will form a
part of “personal information”. The Section reads as under-
“72A. Punishment for disclosure of information in
breach of lawful contract - Save as otherwise provided in
this Act or any other law for the time being in force, any
person including an intermediary who, while providing
services under the terms of lawful contract, has secured
access to any material containing personal information
about another person, with the intent to cause or knowing
that he is likely to cause wrongful loss or wrongful gain
discloses, without the consent of the person concerned, or
in breach of a lawful contract, such material to any other
person, shall be punished with imprisonment for a term
which may extend to three years, or with fine which may
extend to five lakh rupees, or with both.”166) The Sensitive Personal Data Rules provide for additional
requirements on commercial and business entities (body
corporates as defined under Section 43A of the IT Act) relating to
the collection and disclosure of sensitive personal data (including
biometric information). The crucial requirements, which are
Writ Petition (Civil) No. 494 of 2012 connected matters Page 252 of 567
indicative of the principles for data protection that India adheresto, inter alia include:
(i) The body corporate or any person who on behalf of body
corporate collects, receives, possesses, stores, deals or handle
information of provider of information, shall provide a privacy
policy for handling of or dealing in personal information including
sensitive personal data or information and ensure that the same
are available for view.
(ii) Body corporate or any person on its behalf shall obtain
consent in writing from the provider of the sensitive personal data
or information regarding purpose of usage before collection of
such information.
(iii) Body corporate or any person on its behalf shall not collect
sensitive personal data or information unless — (a) the
information is collected for a lawful purpose connected with a
function or activity of the body corporate or any person on its
behalf; and (b) the collection of the sensitive personal data or
information is considered necessary for that purpose
(iv) The person concerned has the knowledge of — (a) the fact
that the information is being collected; (b) the purpose for which
the information is being collected; (c) the intended recipients of
the information; and (d) name and address of the agency
Writ Petition (Civil) No. 494 of 2012 connected matters Page 253 of 567
collecting and retaining the information.(v) Body corporate or any person on its behalf holding sensitive
personal data or information shall not retain that information for
longer than is required for the purposes for which the information
may lawfully be used or is otherwise required under any other law
for the time being in force.
(vi) Information collected shall be used for the purpose for
which it has been collected.
(vii) Body corporate or any person on its behalf shall, prior to the
collection of information, including sensitive personal data or
information, provide an option to the provider of the information to
not to provide the data or information sought to be collected.
(viii) Body corporate shall address any discrepancies and
grievances of their provider of the information with respect to
processing of information in a time bound manner.
(ix) Disclosure of sensitive personal data or information by body
corporate to any third party shall require prior permission from the
provider of such information, who has provided such information
under lawful contract or otherwise, unless such disclosure has
been agreed to in the contract between the body corporate and
provider of information, or where the disclosure is necessary for
compliance of a legal obligation.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 254 of 567
(x) A body corporate or a person on its behalf shall comply with
reasonable security practices and procedure i.e. implement such
security practices and standards and have a comprehensive
documented information security programme and information
security policies that contain managerial, technical, operational
and physical security control measures that are commensurate
with the information assets being protected with the nature of
business. In the event of an information security breach, the
body corporate or a person on its behalf shall be required to
demonstrate, as and when called upon to do so by the agency
mandated under the law, that they have implemented security
control measures as per their documented information security
programme and information security policies.
The above substantive and procedural safeguards are
required for legal collection, storage and use of biometric
information under the IT Act. They indicate the rigour with which
such processes need to be carried out.
Position in other countries:
(a) EUGDPR (European Union General Data Protection
Regulation)6969 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free
movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)
Writ Petition (Civil) No. 494 of 2012 connected matters Page 255 of 567
EUGDPR which was enacted by the EU in 2016 came intoforce on May 25, 2018 replacing the Data Protection Directive of
1995. It is an exhaustive and comprehensive legal framework that
is aimed at protection of natural persons from the processing of
personal data and their right to informational privacy. It deals with
all kinds of processing of personal data while delineating rights of
data subjects and obligations of data processors in detail. The
following fundamental principles of data collection, processing,
storage and use reflect the proportionality principle underpinning
the EUGDPR -
(i) the personal data shall be processed lawfully, fairly, and in a
transparent manner in relation to the data subject (principle of
lawfulness, fairness, and transparency);
(ii) the personal data must be collected for specified, explicit,
and legitimate purposes (principle of purpose limitation);
(iii) processing must also be adequate, relevant, and limited to
what is necessary (principle of data minimization) as well as
accurate and, where necessary, kept up to date (principle of
accuracy);
(iv) data is to be kept in a form that permits identification of data
subjects for no longer than is necessary for the purposes for
Writ Petition (Civil) No. 494 of 2012 connected matters Page 256 of 567
which the personal data are processed (principle of storagelimitation);
(v) data processing must be secure (principle of integrity and
confidentiality); and
(vi) data controller is to be held responsible (principle of
accountability).
167) The EUGDPR under Article 9 prohibits the collection of biometric
data unless except in few circumstances which include (but are
not limited to) -
(a) there is an explicit consent by the party whose data is being
collected. The consent should be freely given, which is clearly
distinguishable in an intelligible and easily accessible form, using
clear and plain language. This consent can be withdrawn at any
time without affecting the actions prior to the withdrawal;
(b) processing is necessary for the purposes of carrying out the
obligations and exercising specific rights of the controller or of the
data subject in the field of employment and social security and
social protection law;
(c) processing relates to personal data which is manifestly
made public by the data subject; and
(d) processing is necessary for reasons of substantial public
Writ Petition (Civil) No. 494 of 2012 connected matters Page 257 of 567
interest, and it shall be proportionate to the aim pursued, respectthe essence of the right to data protection and provide for suitable
and specific measures to safeguard the fundamental rights and
the interests of the data subject.
168) The Regulation also institutes rights of the data subject (the
person whose data is collected), subject to exceptions, which
include the data subject’s right of access to information about the
purpose of collection of data, details of data controller and
subsequent use and transfer of data, the data subject’s right to
rectification of data, right to erasure or right to be forgotten, the
data subject’s right to restriction of processing, the right to be
informed, the right to data portability and the data subject’s right
to object to illegitimate use of data.
(b) Biometric Privacy Act in the United States of America
169) Some States in the United States of America have laws
regulating collection and use of biometric information. Illinois has
passed Biometric Information Privacy Act (740 ILCS 14/1 or
BIPA) in 2008. Texas has also codified the law for capture of use
of biometric identifier (Tex. Bus. Com. Code Ann. §503.001) in
2009. The Governor of the Washington State signed into law
House Bill 1493 (“H.B. 1493”) on May 16, 2017, which sets forth
Writ Petition (Civil) No. 494 of 2012 connected matters Page 258 of 567
requirements for businesses who collect and use biometricidentifiers for commercial purposes. BIPA, Illinois, for example
makes it unlawful for private entities to collect, store, or use
biometric information, such as retina/iris scans, voice scans, face
scans, or fingerprints, without first obtaining individual consent for
such activities. BIPA also requires that covered entities take
specific precautions to secure the information.
(b) Case Laws:
170) In K.S. Puttaswamy’s judgment, all the Judges highlighted the
importance of informational privacy in the age of easy access,
transfer, storage and mining of data. The means of aggregation
and analysis of data of individuals through various tools are
explained. Chandrachud, J. observed that with the increasing
ubiquity of electronic devices, information can be accessed,
stored and disseminated without notice to the individual.
Metadata and data mining make the individual’s personal
information subject to private companies and the state. In this
background, His Lordship discusses the necessity of a data
protection regime for safeguarding privacy and protecting the
autonomy of the individual. The following observations in the
conclusion of the judgment are worth quoting:
Writ Petition (Civil) No. 494 of 2012 connected matters Page 259 of 567
“328. Informational privacy is a facet of the right to privacy.The dangers to privacy in an age of information can
originate not only from the state but from non-state actors
as well. We commend to the Union Government the need
to examine and put into place a robust regime for data
protection. The creation of such a regime requires a careful
and sensitive balance between individual interests and
legitimate concerns of the state. The legitimate aims of the
state would include for instance protecting national
security, preventing and investigating crime, encouraging
innovation and the spread of knowledge, and preventing
the dissipation of social welfare benefits. These are matters
of policy to be considered by the Union government while
designing a carefully structured regime for the protection of
the data. Since the Union government has informed the
Court that it has constituted a Committee chaired by
Hon’ble Shri Justice B N Srikrishna, former Judge of this
Court, for that purpose, the matter shall be dealt with
appropriately by the Union government having due regard
to what has been set out in this judgment.”171) S.K. Kaul, J. cited the European Union General Data Protection
Regulations70 to highlight the importance of data protection and
the circumstances in which restrictions on the right to privacy may
be justifiable subject to the principle of proportionality. These
include balance against other fundamental rights, legitimate
national security interest, public interest including scientific or
historical research purposes or statistical purposes, criminal
offences, tax purposes, etc.
172) There are numerous case laws – both American and European –
presented by the petitioners and the respondents with respect to
70 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free
movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)
Writ Petition (Civil) No. 494 of 2012 connected matters Page 260 of 567
the collection, storage and use of biometric data which have beentaken note of above. They are illustrative of the method and
safeguards required to satisfy the proportionality principle while
dealing with biometric data. The first set of cases cited by the
petitioners are cases from European Human Rights Courts.
173) The European Human Rights legislations have both explicitly and
through case laws recognized the right to informational privacy
and data protection. The EU Charter of Fundamental Rights
states in Article 7 that ‘everyone has the right to respect for his or
her private and family life, home and communications’ and in
Article 8 it grants a fundamental right to protection of personal
data. The first article of the EU Charter affirms the right to respect
and protection of human dignity. The ECHR also recognises the
right to respect for private and family life, home and his
correspondence which have been read to include protection of
right to control over personal biometric information.
174) As pointed out above as well, a prominent case which addresses
the question of storage of biometric data, i.e. whether storage
and retention of DNA samples and fingerprints violates Article 8 of
the ECHR, is S and Marper71. In this case, the storing of DNA
71 S and Marper v. United Kingdom [2008] ECHR 1581
Writ Petition (Civil) No. 494 of 2012 connected matters Page 261 of 567
profiles and cellular samples of any person arrested in the UnitedKingdom was challenged before the ECtHR. Even if the individual
was never charged or if criminal proceedings were discontinued
or if the person was later acquitted of any crime, their DNA profile
could nevertheless be kept permanently on record without their
consent.
175) In a unanimous verdict, the seventeen-judge bench held that
there had been a violation of Article 8 of the ECHR. Fingerprints,
DNA profiles and cellular samples, constituted personal data and
their retention was capable of affecting private life of an
individual. The retention of such data without consent, thus,
constitutes violation of Article 8 as they relate to identified and
identifiable individuals. It held that:
“84. …fingerprints objectively contain unique information
about the individual concerned allowing his or her
identification with precision in a wide range of
circumstances. They are thus capable of affecting his or
her private life and retention of this information without the
consent of the individual concerned cannot be regarded as
neutral or insignificant.”176) It articulated the proportionality principle in the following words:
“101. An interference will be considered “necessary in a
democratic society” for a legitimate aim if it answers a
“pressing social need” and, in particular, if it is
proportionate to the legitimate aim pursued and if the
reasons adduced by the national authorities to justify it are
"relevant and sufficientxx xx xx
Writ Petition (Civil) No. 494 of 2012 connected matters Page 262 of 567
The protection of personal data is of fundamental
importance to a person's enjoyment of his or her right to
respect for private and family life, as guaranteed by Article
8 of the Convention. The domestic law must afford
appropriate safeguards to prevent any such use of
personal data as may be inconsistent with the guarantees
of this Article. The need for such safeguards is all the
greater where the protection of personal data undergoing
automatic processing is concerned, not least when such
data are used for police purposes. The domestic law
should notably ensure that such data are relevant and not
excessive in relation to the purposes for which they are
stored; and preserved in a form which permits identification
of the data subjects for no longer than is required for the
purpose for which those data are stored … The domestic
law must also afford adequate guarantees that retained
personal data was efficiently protected from misuse and
abuse.”177) The issue in the case according to the Court was whether the
retention of the fingerprints and DNA data of the applicants, as
persons who had been suspected but not convicted of certain
criminal offences, was justified under Article 8 of the Convention.
178) The Court held that such invasion of privacy was not
proportionate as it was not “necessary in a democratic society” as
it did not fulfill any pressing social need. The blanket and
indiscriminate nature of retention of data was excessive and did
not strike a balance between private and public interest. It held:
“125. the blanket and indiscriminate nature of the powers
of retention of the fingerprints, cellular samples and DNA
profiles of persons suspected but not convicted of offences,
as applied in the case of the present applicants, fails to
strike a fair balance between the competing public and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 263 of 567
private interests and that the respondent State has
overstepped any acceptable margin of appreciation in this
regard. Accordingly, the retention at issue constitutes a
disproportionate interference with the applicants' right to
respect for private life and cannot be regarded as
necessary in a democratic society. This conclusion
obviates the need for the Court to consider the applicants'
criticism regarding the adequacy of certain particular
safeguards, such as too broad an access to the personal
data concerned and insufficient protection against the
misuse or abuse of such data.”179) The two crucial aspects of the case that need to be kept in mind
are – First, in that case, the fingerprints were collected for
criminal purposes and without the consent of the individual to
whom the fingerprints belonged. Second, the fingerprints were to
be stored indefinitely without the consent of the individual and
that the individual did not have an option to seek deletion. These
aspects were vital for the Court to decide that the retention
violated the citizen’s right to privacy.
180) Similarly, in the Digital Ireland case72, the European Parliament
and the Council of the European Union adopted Directive
2006/24/EC (Directive), which regulated Internet Service
Providers’ storage of telecommunications data. It could be used
to retain data which was generated or processed in connection
with the provision of publicly available electronic communications
services or of public communications network, for the purpose of
72 Digital Rights Ireland Ltd v Minister for Communication, Marine and Natural Resources [2014] All
ER (D) 66 (Apr)
Writ Petition (Civil) No. 494 of 2012 connected matters Page 264 of 567
fighting serious crime in the European Union. The data includeddata necessary to trace and identify the source of communication
and its destination, to identify the date, time duration, type of
communication, IP address, telephone number and other fields.
The Court of Justice of European Court (CJEU) evaluated the
compatibility of the Directive with Articles 7 and 8 of the Charter
and declared the Directive to be invalid.
181) According to the CJEU, the Directive interfered with the right to
respect for private life under Article 7 and with the right to the
protection of personal data under Article 8 of the Charter of
Fundamental Rights of the European Union. It allowed very
precise conclusion to be drawn concerning the private lives of the
persons whose data had been retained, such as habits of
everyday life, permanent or temporary places of residence, daily
and other movements, activities carried out, social relationships
and so on. The invasion of right was not proportionate to the
legitimate aim pursued for the following reasons:
(i) Absence of limitation of data retention pertaining to a
particular time period and/or a particular geographical zone
and/or to a circle of particular persons likely to be involved.
(ii) Absence of objective criterion, substantive and procedural
Writ Petition (Civil) No. 494 of 2012 connected matters Page 265 of 567
conditions to determine the limits of access of the competentnational authorities to the data and their subsequent use for the
purposes of prevention, detection or criminal prosecutions. There
was no prior review carried out by a court or by an independent
administrative body whose decision sought to limit access to the
data and their use to what is strictly necessary for attaining the
objective pursued.
(iii) Absence of distinction being made between the categories
of data collected based on their possible usefulness.
(iv) Period of retention i.e. 6 months was very long being not
based on an objective criterion.
(v) Absence of rules to protect data retained against the risk of
abuse and against any unlawful access and use of that data.
(vi) Directive does not require the data in question to be
retained within the European Union.
182) In Tele2 Sverige AB vs. Post-och telestyrelsen73, the CJEU was
seized with the issue as to whether in light of Digital Rights
Ireland, a national law which required a provider of electronic
communications services to retain meta-data (name, address,
telephone number and IP address) regarding users/subscribers
for the purpose of fighting crime was contrary to Article 7, 8 and
73 Tele2 Sverige AB v. Post-och telestyrelsen and Secretary of State for the Home Department v.
Tom Watson, Peter Brice, Geoffrey Lewis, Joined Cases C-203/15 and C-698/15, 2016
Writ Petition (Civil) No. 494 of 2012 connected matters Page 266 of 567
11 of the EU Charter. The CJEU struck down the provisionallowing collection of such meta data on grounds of lack of
purpose limitation, data differentiation, data protection, prior
review by a court or administrative authority and consent,
amongst other grounds. It held:
“103. While the effectiveness of the fight against serious
crime, in particular organised crime and terrorism (…)
cannot in itself justify that national legislation providing for
the general and indiscriminate retention of all traffic and
location data should be considered to be necessary for the
purposes of that fight.xx xx xx
105. Second, national legislation (…) provides for no
differentiation, limitation or exception according to the
objective pursued. It is comprehensive in that it affects all
persons using electronic communication services, even
though those persons are not, even indirectly, in a situation
that is liable to give rise to criminal proceedings. It
therefore applies even to persons for whom there is no
evidence capable of suggesting that their conduct might
have a link, even an indirect or remote one, with serious
criminal offences. Further, it does not provide for any
exception, and consequently it applies even to persons
whose communications are subject, according to rules of
national law, to the obligation of professional secrecy.xx xx xx
if it is to be ensured that data retention is limited to what is
strictly necessary, it must be observed that, while those
conditions may vary according to the nature of the
measures taken for the purposes of prevention,
investigation, detection and prosecution of serious crime,
the retention of data must continue nonetheless to meet
objective criteria, that establish a connection between the
data to be retained and the objective pursued. In particular,
such conditions must be shown to be such as actually to
circumscribe, in practice, the extent of that measure and,
thus, the public affected.”
Writ Petition (Civil) No. 494 of 2012 connected matters Page 267 of 567183) With respect to measures for data security and data protection
the court held :
“122. Those provisions require those providers to take
appropriate technical and organisational measures to
ensure the effective protection of retained data against
risks of misuse and against any unlawful access to that
data. Given the quantity of retained data, the sensitivity of
that data and the risk of unlawful access to it, the providers
of electronic communications services must, in order to
ensure the full integrity and confidentiality of that data,
guarantee a particularly high level of protection and
security by means of appropriate technical and
organisational measures. In particular, the national
legislation must make provision for the data to be retained
within the European Union and for the irreversible
destruction of the data at the end of the data retention
period.”184) In BVerfG74, the German Constitutional Court rendered on March
02, 2010 a decision by which provisions of the data retention
legislation adopted for, inter alia, the prevention of crime were
rendered void because of lack of criteria for rendering the data
retention proportional.
185) In Maximillian Schrems v. Data Protection Commissioner75, the
CJEU struck down the transatlantic US-EU Safe Harbor
agreement that enabled companies to transfer data from Europe
to the United States on the ground that there was not an
adequate level of safeguard to protect the data. It held that the
74 2.03. 2010, 1 BvR 256 / 08 , 1 BvR 263 / 08 , 1 BvR 586 / 08
75 [2016] 2 W.L.R. 873
Writ Petition (Civil) No. 494 of 2012 connected matters Page 268 of 567
U.S. authorities could access the data beyond what was strictlynecessary and proportionate to the protection of national security.
The subject had no administrative or judicial means of accessing,
rectifying or erasing their data.
186) In Szabo and Vissy v. Hungary76, the ECtHR held unanimously
that there had been a violation of Article 8 (right to respect for
private and family life, the home and correspondence) of the
European Convention on Human Rights. The case concerned
Hungarian legislation on secret anti-terrorist surveillance
introduced in 2011. The court held that the legislation in question
did not have sufficient safeguards to avoid abuse. Notably, the
scope of the measures could include virtually anyone in Hungary,
with new technologies enabling the Government to intercept
masses of data easily concerning even persons outside the
original range of operation. Furthermore, the ordering of such
measures was taking place entirely within the realm of the
executive and without an assessment of whether interception of
communications was strictly necessary. There were no effective
remedial measures in place, let alone judicial ones. The court
held:
“77. … Rule of law implies, inter alia, that an interference
by the executive authorities with an individual right should
76 Eur. Ct. H.R. 2016
Writ Petition (Civil) No. 494 of 2012 connected matters Page 269 of 567
be subject to an effective control which should normally be
assured by the judiciary, at least in the last resort…”187) Thus, it is evident from various case laws cited above, that data
collection, usage and storage (including biometric data) in Europe
requires adherence to the principles of consent, purpose and
storage limitation, data differentiation, data exception, data
minimization, substantive and procedural fairness and
safeguards, transparency, data protection and security. Only by
such strict observance of the above principles can the State
successfully discharge the burden of proportionality while
affecting the privacy rights of its citizens.
188) The jurisprudence with respect to collection, use and retention of
biometric information in the United States differs from the EU. In
the US context, there is no comprehensive data protection
regime. This is because of the federal system of American
government, there are multiple levels of law
enforcement―federal, state, and local. Different states have
differing standards for informational privacy. Moreover, the U.S.
has a sectoral approach to privacy, i.e. laws and regulations
related to data differ in different sectors such as health sector or
student sector. In most cases, however, the Fourth Amendment
which prohibits “unreasonable searches and seizures” by the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 270 of 567
government has been read by courts to envisage various levelsdata protection.
189) At this juncture, we are not entering the debate as to whether the
jurisprudence developed in United States is to be preferred or
E.U. approach would be more suitable. Fact remains that
importance to data protection in processing the data of the
citizens is an accepted norm.
190) Observance of this fundamental principle is necessary to prevent
a disproportionate infringement of the Fundamental Right of
Privacy of a citizen. The question which now needs to be
addressed is whether the Aadhaar Act and Rules incorporate
these principles of data protection. We have already taken note
of the provisions in the Act, which relate to data protection.
However, a detailed analysis of the provisions of the Act needs to
be undertaken for this purpose having regard to the principles
that have emerged from case law in other jurisdiction and noted
in paragraph 187 above.
Data Minimisation:
191) The petitioners have argued that the Act enables data collection
indiscriminately regarding all aspects of a person (biometrics,
Writ Petition (Civil) No. 494 of 2012 connected matters Page 271 of 567
demographic details, authentication records, meta-data related totransaction) even though such data has no nexus to the
purported object of subsidies, thus violating the principle of data
minimization. The data collected is sufficient to indicate religion,
class, social status, income, education and intimate personal
details. Under Section 32 of the Act, authentication records are
stored in the central database in the manner prescribed under the
Regulations. Regulation 26 of the Authentication Regulations
requires UIDAI to store “authentication transaction data”
consisting of: (a) authentication request data received including
PID block; (b) authentication response data sent; (c) meta data
related to the transaction; and (d) any authentication server side
configurations as necessary. The authentication record affords
access to information that can be used and analyzed to
systematically track or profile an individual and her activities.
192) As per the respondents, Aadhaar involves minimal identity
information for effective authentication. Four types of information
collected for providing Aadhaar:
(i) Mandatory demographic information comprising name, date of
birth, address and gender [Section 2(k) read with Regulation 4(1)
of the Aadhaar (Enrolment and Update) Regulations, 2016];
(ii) Optional demographic information [Section 2(k) read with
Writ Petition (Civil) No. 494 of 2012 connected matters Page 272 of 567
Regulation 4(2) of the Aadhaar (Enrolment and Update)Regulations, 2016];
(iii) Non-core biometric information comprising photograph;
(iv) Core biometric information comprising finger print and iris
scan.
193) Demographic information, both mandatory and optional, and
photographs does not raise a reasonable expectation of privacy
under Article 21 unless under special circumstances such as
juveniles in conflict of law or a rape victim’s identity. Today, all
global ID cards contain photographs for identification alongwith
address, date of birth, gender etc. The demographic information
is readily provided by individuals globally for disclosing identity
while relating with others and while seeking benefits whether
provided by government or by private entities, be it registration for
citizenship, elections, passports, marriage or enrolment in
educational institutions. Email ids and phone numbers are also
available in public domain, For example in telephone directories.
Aadhaar Act only uses demographic information which are not
sensitive and where no reasonable expectation of privacy exists -
name, date of birth, address, gender, mobile number and e mail
address. Section 2(k) specifically provides that Regulations
Writ Petition (Civil) No. 494 of 2012 connected matters Page 273 of 567
cannot include race, religion, caste, tribe, ethnicity, language,records of entitlement, income or medical history. Thus, sensitive
information specifically stand excluded.
194) We find that Section 32 (3) of the Aadhaar Act specifically
prohibits the authority from collecting, storing or maintaining,
either directly or indirectly any information about the purpose of
authentication. The proviso to Regulation 26 of Authentication
Regulations is also to the same effect.
195) Thus, the principle of data minimization is largely followed.
196) With this, we advert to some other provisions, challenge whereof
is based on threat to security of the data. These are Section 2(c),
Section 2(g) and Section 2(h) read with Section 10 of the
Aadhaar Act. Section 2(c) pertains to authentication. It is a
process by which Aadhaar number along with demographic
information or biometric information of an individual is submitted
to the CIDR for its verification. On submission thereof, the CIDR
verifies the correctness or lack of it. CIDR is defined in Section
2(h). Section 10 lays down that the Authority may engage one or
more entities to establish or maintain the CIDR and to perform
any other functions as may be specified by regulations.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 274 of 567
197) Insofar as authentication process is concerned, that has already
been taken note of above. The manner in which it is explained by
the respondent authority, that may not pose much of a problem.
As noted earlier, while seeking authentication, neither the location
of the person whoso identity is to be verified nor the purpose for
which authentication of such identity is needed, comes to the
knowledge of the Authority and, therefore, such data collected by
the Authority. Therefore, the threat to real time surveillance and
profiling may be far-fetched. The respondents have explained
that Section 2(d) defines “authentication record” to mean the
record of the time of authentication, identity of the RE and the
response provided by the authority”, Regulation 26 (a) to (d) does
not go beyond the scope of Section 2(d). None of the four
clauses of Regulation 26 entitle the authority to store data about
the purpose for which authentication is being done. The device
can therefore only tell the authority the identity of the RE, the PID,
the time and nature of response, the code of the device and the
authentication server side configurations. Identity of the RE does
not include details of the organization which is seeking
authentication as an RE provides authentication service to large
number of government organizations who have agreements with
it. Such a mechanism preventing the authority from tracking the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 275 of 567
nature of activity for which the authentication was required. Toillustrate nic.in is an RE which provides authentication service to
large number of Government organisations who have
agreements with it. The authentication record would only contain
information about the identity about the RE. It will give
information only about the RE (nic.in) and not about the
organisation which is requiring authentication through the RE. In
most cases the authentication is one time. Mr. Dwivedi has also
explained that yet again, there may be organisations, which have
branches in different part of India. Assuming Apollo Hospital
(although in fact it is not an RE) has five branches in India. If
Apollo Hospital seeks authentication as an RE, the authentication
record will merely tell the identity of Apollo Hospital and its device
code, but it will not indicate which branch of Apollo was seeking
authentication and from which part of the country. Further,
assuming that the Indira Gandhi International Airport is an RE
and there is requirement of authentication at the point of entry
and/or exit. All that the record will show that the ANH has entered
the airport at a particular time but it will not show by which plane
he is flying and to what destination. At the time of exit, it will only
show that the person has exited the airport at a particular time. It
will not show from which flight he has arrived and from which
Writ Petition (Civil) No. 494 of 2012 connected matters Page 276 of 567
destination and at what time he has arrived or with whom hetravelled.
198) However, other apprehension of the petitioners is that storing of
data for a period of seven years as per Regulations 20 and 26/27
of the Aadhaar (Authentication) Regulations, 2016 is too long a
period. We may reproduce Regulations 26 and 27 of the Aadhaar
(Authentication) Regulations, 2016 hereunder:
“26. Storage and Maintenance of Authentication
Transaction Data – (1) The Authority shall store and
maintain authentication transaction data, which shall
contain the following information:-(a) authentication request data received including PID
block;(b) authentication response data sent;
(c) meta data related to the transaction;
(d) any authentication server side configurations as
necessary:Provided that the Authority shall not, in any case, store the
purpose of authentication.27. Duration of storage – (1) Authentication transaction
data shall be retained by the Authority for a period of 6
months, and thereafter archived for a period of five years.(2) Upon expiry of the period of five years specified in sub-
regulation (1), the authentication transaction data shall be
deleted except when such authentication transaction data
are required to be maintained by a court or in connection
with any pending dispute.”199) It is also submitted that Section 10 which authorises the Authority
to engage one or more entities, which may be private entities, to
Writ Petition (Civil) No. 494 of 2012 connected matters Page 277 of 567
establish and maintain CIDR is a serious threat to privacy and iteven amounts to compromise on national sovereignty and
security. Insofar as first argument is concerned, there appears to
be some force in that. If authentication is the only purpose, we
fail to understand why this authentication record is needed to be
kept for a period of 2+5 years. No satisfactory explanation in this
behalf was given.
200) Insofar as information regarding metadata is concerned, we may
note that the respondents distinguished between three types of
meta-data :technical, business and process metadata. Process
metadata describes the results of various operations such as logs
key data, start time, end time, CPU seconds used, disk reads,
disk writes, and rows processed. This data is valuable for
purposes of authenticating transaction, troubleshooting , security,
compliance and monitoring and improving performance. They
submit that the metadata contemplated under this Regulation is
Process metadata.
201) However, metadata is not defined in the Aadhaar Act. In common
parlance, it is understood as information about data, example
whereof was given by Mr. Sibal that the text of a message
exchanged between two persons would be the data itself.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 278 of 567
However, surrounding circumstances like when the message wassent; from whom and to whom the message was sent; and
location from which the message was sent would include meta
data. As noted above, Mr. Dwivedi had tried to explain it away by
stating that there are three types of meta data, namely, technical,
business and process meta data. According to him, meta data
under the Aadhaar Act refers to only process meta data. In
support, he had referred to Section 2(d) of the Aadhaar Act which
defines ‘authentication record’ to mean the record of the time of
authentication, identity of requesting entity and the response
provided by the Authority. He, thus, submitted that Regulation 26
would not go beyond Section 2(d). However, aforesaid
explanation that meta data refers to process data only does not
find specific mention. There is, thus, need to amend Regulation
26 to restrict it to process meta data, and to exclude other type of
meta data specifically.
Purpose Limitation:
202) As per the petitioners, there is no purpose limitation. Identity
information collected for one purpose under the Act can be
used for any other (new) purpose. Definition of “benefit”
(Section 2(f)) and “service” (Section 2(w)) and “subsidy” (Section
Writ Petition (Civil) No. 494 of 2012 connected matters Page 279 of 567
2(x)), to which the personal data collected is supposed to beapplied is not identifiable. It is open to the executive to notify that
any advantage, gift, reward, relief, payment, provision, facility,
utility or any other assistance aid, support, grant subvention, or
appropriation may be made conditional on Aadhaar
Authentication. Moreover, under Section 57, the State, a body
corporate or any person can avail authentication facility and
access information under CIDR. This creates an open ended and
unspecified set of laws and contracts for which Aadhaar can be
used and defeats the principle of informed consent at the time of
enrolment and purpose limitation.
203) Respondents controvert the aforesaid submission by arguing that
there is purpose limitation under the Aadhaar Act as purpose of
use of biometric data in the CIDR is limited to authentication for
identification. The Aadhaar holder is made aware of such use of
the Aadhaar card at the time of enrolment. The enrolling agency
is obliged under the Enrolment Regulations to inform the
individual about the manner in which the information shall be
used, the nature of recipients with whom the information is to be
shared during authentication; and the existence of a right to
access information, the procedure for making request for such
Writ Petition (Civil) No. 494 of 2012 connected matters Page 280 of 567
access and details of the person/ department to whom requestcan be made. This information to individual is the basis for his
consent for enrolment.
204) As per the respondents, Section 57 is not an enabling provision
which allows Aadhaar to be used for purposes other than Section
7, but is a limiting provision. It limits its use by State, Body
Corporate or a person by requiring it to be sanctioned by any law
in force or any contract and making the use subject to the proviso
to Section 57. The proviso requires the use of Aadhaar under this
Section to be subject to procedure and obligations under Section
8 and Chapter VI of penalties. Section 8(2)(a) requires
Requesting Entities (RE) (parties authorized to carry out
authentication under Section 57) to obtain the consent of an
individual before collecting her identity information for the
purposes of authentication in such manner as may be specified
by regulations. Section 8(3) enables this consent to be informed
consent by requiring that an individual submitting her identity
information for authentication shall be informed of the nature and
the use of the information that may be shared upon
authentication and the alternatives to submission of identity
information to the requesting entity. This aspect is discussed in
Writ Petition (Civil) No. 494 of 2012 connected matters Page 281 of 567
detail at a later stage, as it touches upon privacy aspects as well.Suffice it is to mention here that we have found some portion of
Section 57 as offending and declared that unconstitutional.
Insofar as Sections 2(f), (w) and (x) are concerned, these
provisions are discussed at a later stage 77. We would like to
mention here that we have read down these provisions. The
aforesaid measure would subserve the purpose limitation as well.
Time Period for Data Retention:
205) We have touched upon this aspect hereinabove. According to
petitioners, the data is allowed to be retained for an
unreasonable long period of time. Regulation 27 of the
Authentication Regulations requires the UIDAI to retain the
“authentication transaction data” (which includes the meta data)
for a period of 6 months and to archive the same for a period of 5
years thereafter. Regulation 18(3) and 20(3) allow Requesting
entities (RE) and Authentication Service Agencies to retain the
authentication logs for a period of 2 years and then archive them
for 5 years. It is required to be deleted only after 7 years unless
retained by a court. The right of the citizen to erasure of data or
right to be forgotten is severely affected by such regulation. There
is no provision to delete the biometric information in any
77 See paragraphs 320 to 322
Writ Petition (Civil) No. 494 of 2012 connected matters Page 282 of 567
eventuality once a person is enrolled.We do not find any reason for archiving the authentication
transaction data for a period of five years. Retention of this data
for a period of six months is more than sufficient after which it
needs to be deleted except when such authentication transaction
data are required to be maintained by a Court or in connection
with any pending dispute. Regulations 26 and 27 shall, therefore,
be amended accordingly.
Data Protection and Security:
206) Petitioners argued that there are not enough safeguards for data
protection and security in the Act. Section 28 of the Act which
addresses security and confidentiality of information is vague and
fails to lay down any standard of data security or prescribe any
cogent measures which are to be taken to prevent data breaches.
Section 54 empowers UIDAI to make regulations related to
various data management processes, security protocol and other
technology safeguards. The Aadhaar (Data Security)
Regulations, 2016 passed by UIDAI under Section 54, vest in the
authority a discretion to specify “an information security policy”
(Regulation 3). This leads to excessive delegation. Alternatively, it
has not been subject to parliamentary oversight which
Writ Petition (Civil) No. 494 of 2012 connected matters Page 283 of 567
Regulations under Section 54 require. Further, the CIDR centraldatabase, unlike the ASAs and REs (under Authentication
Regulation 22(1)), are not required to be located in data centres.
The personal data is accessible by private entities such as AUAs
and KUAs and other private entities such as banks, insurance
companies and telecom service providers. There have been
numerous data breaches in the Aadhaar system. These establish
its vulnerability. There are not enough safeguards from data hack
and data leak. The data is being used by private parties to build
comprehensive databases containing information and profiles of
individuals. Thus the project also lacks transparency of data and
its use.
207) The Respondents contend that strong measures for data
protection and security, taken at all stages of data collection,
transfer, storage and use.
After deliberating over respective contentions, we are of the
opinion that the following explanation furnished by the
respondents on various facets ensures data protection and
security to a considerable extent:
(a) CIDR
208) Regulation 3(i) (j) of Aadhaar (Data Security) Regulation 2016
Writ Petition (Civil) No. 494 of 2012 connected matters Page 284 of 567
enables partitioning of CIDR network into zones based on riskand trust and other security measures. CIDR being a computer
resource is notified to be a “Protected System” under Section 70
of the IT Act, 2000 by the Central Government on 11.12.2015.
Anyone trying to unlawfully gain access into this system is liable
to be punished with 10 years imprisonment and fine. The storage
involves end to end encryption, logical partitioning, firewalling and
anonymisation of decrypted biometric data. Breaches of penalty
are made punitive by Chapter VII of the Act. Biometric information
is deemed to be an “electronic record”, and “Sensitive personal
data or information” under the IT Act, 2000. There are further
guards under The Aadhaar ( Data Security )Regulation, 2016.
(b) Requesting Entities (AUA and KUA)
209) Other identity information is shared with Requesting Entity (AUAs
and KUAs) only for the limited purpose of authentication. The
data is transferred from the RE to the ASA (Authentication
Service Agency) to the CIDR in an encrypted manner through a
leased line circuitry using secure Protocols (Regulation 9 of the
Authentication Regulations). The storage of data templates is in
safely located servers with no public internet inlet/outlet, and
offline storage of original encrypted data (PID blocks). There are
Writ Petition (Civil) No. 494 of 2012 connected matters Page 285 of 567
safety and security provisions such as audit by InformationSystems Auditor. REs are appointed through agreement. REs can
enter into agreement with sub-AUA or sub-KUA with permission
of the of UIDAI. Whatever identity information is obtained by the
requesting entity is based on a specific consent of the Aadhaar
number holder. The e-KYC data shared with the RE can only be
after prior consent of the Aadhaar holder. Such data cannot be
shared and has to be stored in encrypted form. The biometric
information used is not permitted to be stored only the logs of
authentication transactions are maintained for a short period. Full
identity information is never transmitted back to RE. There is a
statutory bar from sharing Biometric information [Section 29(1)(a)/
Section 29(4)]. The Data centres of ASA, REs and CIDR should
be within the territory of India.
(c) Enrolment Agencies and Registrars
210) The enrolment and Authentication processes are strongly
regulated so that data is secure. The Enrolment agency, which
collects the biometric and demographic of the individuals during
enrolment, is appointed either by UIDAI or by a Registrar [Section
2(s)]. The registrar are appointed through MoUs or agreements
for enrolment and are to abide by a code of conduct and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 286 of 567
processes, policies and guidelines issued by the authority. Theyare responsible for the process of enrolment. Categories of
persons eligible for appointment are limited by the Regulations.
The agency employees a certified supervisor, an operator and a
verifier under Enrolment and Update Regulations. Registrars,
enrolling agencies are obliged to use the software provided or
authorized by UIDAI for enrolment purpose. The standard
software has security features as specified by Authority. All
equipment used are as per the specification issued by the
authority. The Registrars are prohibited from using the
information collected for any purpose other than uploading the
information to CIDR. Sub-contracting of enrolment function is not
allowed. The Code of Conduct contains specific directions for
following the confidentiality, privacy and security protocols and
submission of periodic reports of enrolment. Not only there are
directions prohibiting manipulation and fraudulent practices but
the Act contains penal provisions for such violations in Chapter
VII of the Regulations. The enrolment agencies are empanelled
by the authority. They are given an enrolling agency code using
which the Registrar can onboard such agency to the CIDR. The
enrolment data is uploaded to the Central Identities Data
Repository (CIDR) certified equipment and software with a digital
Writ Petition (Civil) No. 494 of 2012 connected matters Page 287 of 567
signature of the registrar/enrolling agency. The data is encryptedimmediately upon capture. The decryption key is with the UIDAI
solely. Section 2(ze) of the IT Act, which defines ‘secure systems’
and Section 2(w) of the Act, which defines ‘intermediaries’ apply
to the process.
(d) Authentication Service Agency
211) Authentication only becomes available through the Authentication
Service Agency (ASA). They are regulated by the Aadhaar
(Authentication) Regulations, 2016. Their role and responsibilities
are provided by Authentication Regulation 19. They are to use
certified devices, equipment, or software are duly registered with
or approved or certified by the Authority/agency. The systems and
operations are audited by information system auditor. The REs
pass the encrypted data to the CIDR through the ASA and the
response (Yes/No authentication or e-KYC information) also
takes the same route back. The server of the ASA has to perform
basic compliance and completeness checks on the authentication
data packet before forwarding it to the CIDR.
(e) Hacking
212) As far as hacking is concerned, the respondents submit that the
authority has involved adequate firewalling and other safety
Writ Petition (Civil) No. 494 of 2012 connected matters Page 288 of 567
features. The biometric data stored in the CIDR is stored offline.Only templates are online. So far there has been no incidence of
hacking. However, the authority is conscious of the hackers and it
constantly updates itself to safe guard the data.
It may, however, be mentioned that of late certain reports
have appeared in newspapers to the effect that some people
could hack the website of CIDR, though it is emphatically denied
by the UIDAI. Since there are only newspapers reports to this
effect which appeared after the conclusion of hearing in these
cases and, therefore, parties could not be heard on this aspect,
we leave this aspect of the matter at that with a hope that CIDR
would find out the ways and means to curb any such tendency.
(f) Biometric Solution Providers
213) With respect to foreign companies owning software, Respondents
submit that UIDAI has entered into licensing agreements with
foreign biometric solution providers (BSP) for software. Even
thought the source code of the software are retained by the BSP
as it constitutes their Intellectual property, the data in the server
rooms is secure as the software operates automatically and the
biometric data is stored offline. There is no opportunity available
to BSP to extract data as they have no access to it.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 289 of 567
Substantive, Procedural or Judicial Safeguards:214) Another grievance of the petitioners is that the Act lacks any
substantive, procedural or judicial safeguards against misuse of
individual data. Section 23(2)(k) which allows sharing information
of Aadhaar holders, in such manner as may be specified by
regulations. This means individual’s identity information can be
shared with the government. This may include demographic and
core biometric information, include aspects such as DNA profiles,
handwriting, voice-print etc., (in the future). Subsequent linkage
with various state and non-state actors that interact with such
individual may enable UIDAI to share greater information. The
police can easily gain access to all biometric information, bank
accounts of the individual, all mobile phones, and meta data
associated with any associated linkages, information relating to
all mutual funds, policies etc., information relating to travel by air
or by rail by such person and so on.
215) In other cases of collection of information of this kind under other
laws, there are exhaustive legal procedures. For example,
Section 73 of the Indian Evidence Act, 1872 which allows the
taking of handwriting samples only if necessary “for the purposes
of any (specific ) investigation”, or in order to compare writing or
Writ Petition (Civil) No. 494 of 2012 connected matters Page 290 of 567
signature that appears in relation to the facts of a particular case.Section 53 of the CrPC allows medical examination of a person
arrested on a charge of committing an offence if reasonable
grounds exist for believing that an examination of his person will
afford evidence as to the commission of the offence. Similarly
provisions in various other statutes such as of the Foreign
Exchange Regulation Act, 1973 (Sections 34-48); the Prevention
of Money-Laundering Act, 2002 (Sections 17-19); the Narcotic
Drugs and Psychotropic Substances Act, 1985 (Sections 41-42)
and the Customs Act, 1962 (Chapter 13) which allow for search,
seizure or even arrest, and thereby provide access to personal
information also bear a nexus with a particular crime under
investigation.
216) As per the petitioners, the Investigating Agency can presently
access fingerprints, only limited to cases of citizens who were
arrested on the reasonable basis of having committed a crime, or
were convicted of a crime, as per provisions of the Identification
of Prisoners Act. In all such circumstances, not only are there
adequate safeguards- such as permission from the Magistrate
that collection is necessary for the purpose of investigation, but
persons accused of an offence presently can claim protection
Writ Petition (Civil) No. 494 of 2012 connected matters Page 291 of 567
under Article 20(3), thereby making it incumbent upon theinvestigating agency to obtain such information in accordance
with law, as described above. Further, unlike the Aadhaar Act,
present day criminal statutes contain provisions for destruction of
some kinds of core biometric data obtained [Section 7 of the
Identification of Prisoners Act, 1920]. No such safeguards exist
under the Aadhaar Act.
217) It is also argued that Section 33(2), which permits disclosure of
identity information and authentication records under direction of
an officer not below the rank of Jt. Secretary to Central
Government in the interest of national security, has no provision
for judicial review. The Oversight Committee does not have a
judicial member.
218) Respondents submitted that Section 29 of the Aadhaar Act
provides protection against disclosure of core biometric
information. The biometric information cannot shared with anyone
for any reason whatsoever; or used for any purpose other than
generation of Aadhaar numbers and authentication under this Act.
Section 8 ensure that the during authentication, biometric
information of an individual is only used for submission to the
Central Identities Data Repository.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 292 of 567
219) We are of the view that most of the apprehensions of the
petitioners stand assuaged with the treatment which is given by
us to some of the provisions. Some of these are already
discussed above and some provisions are debated in the next
issue. Summary thereof, however, can be given hereunder:
(a) Authentication records are not to be kept beyond a period
of six months, as stipulated in Regulation 27(1) of the
Authentication Regulations. This provision which permits
records to be archived for a period of five years is held to
be bad in law.
(b) Metabase relating to transaction, as provided in Regulation
26 of the aforesaid Regulations in the present form, is held
to be impermissible, which needs suitable amendment.
(c) Section 33 of the Aadhaar Act is read down by clarifying
that an individual, whose information is sought to be
released, shall be afforded an opportunity of hearing.
(d) Insofar as Section 33(2) of the Act in the present form is
concerned, the same is struck down.
(e) That portion of Section 57 of the Aadhaar Act which
enables body corporate and individual to seek
authentication is held to be unconstitutional.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 293 of 567
(f) We have also impressed upon the respondents, as the
discussion hereinafter would reveal, to bring out a robust
data protection regime in the form of an enactment on the
basis of Justice B.N. Srikrishna (Retd.) Committee Report
with necessary modifications thereto as may be deemed
appropriate.
220) With the removal of the aforesaid provisions from the statute and
the Rules, coupled with the statement of the Authority on affidavit
that there is no record of any transactions carried out by the
individuals which is even known (and, therefore, no question of
the same being retained by the Authority), most of the
apprehensions of the petitioners are taken care of. At the same
time, we may remind ourselves of the judgment in G.
Sundarrajan v. Union of India Ors.78. In that case, the Court
noted the safety and security risk in the setting up of the nuclear
power plant in the backdrop of Fukushima disaster and Bhopal
Gas tragedy. Yet, keeping in view the importance of generation
of nuclear energy, the Court observed that a balance should be
struck between production of nuclear energy which was of
extreme importance for the economic growth, alleviation of
poverty, generation of employment, and the smaller violation to
78 (2013) 6 SCC 620
Writ Petition (Civil) No. 494 of 2012 connected matters Page 294 of 567
right to life under Article 21. It took note of the opinion of expertscommittee and observed that ‘adequate safety measure’ have
been taken. It noted huge expenditure of money running into
crores and observed ‘apprehension however legitimate it may be,
cannot override the justification of the project. Nobody on this
earth can predict what would happen in future and to a larger
extent we have to leave it to the destiny. But once the justification
test is satisfied, the apprehension test is bound to fail.
Apprehension is something we anticipate with anxiety or fear, a
fearful anticipation, which may vary from person to person’. The
Court also held that ‘nuclear power plant is being established not
to negate right to life but to protect the right to life guaranteed
under Article 21 of the Constitution. No doubt, the Court took a
view that this interest of people needed to be respected for their
human dignity which was divinity. However, it was also stressed
that generation of nuclear energy was a nuclear necessity and
the project was for larger public benefit and consequently,
individual interest or smaller public interest must yield. In such a
situation, necessity for ‘adequate care, caution, and monitoring at
every stage’ and ‘constant vigil’ was emphasised. Safety and
security was read into Article 21. Acknowledging that
proportionality of risk may not be ‘zero’, regard being had to the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 295 of 567
nature’s unpredictability, the Court ruled that all efforts must bemade to avoid disaster by observing the highest degree of
constant alertness. In the directions of the Court, it was observed
that ‘maintaining safety is an ongoing process not only at the
design level but also during the operation’. In the present case
as well, we have come to the conclusion that Aadhaar Act is a
beneficial legislation which is aimed at empowering millions of
people in this country. The justification of this project has been
taken note of in detail, which the subsequent discussion shall
also demonstrate. In such a scenario only on apprehension, the
project cannot be shelved. At the same time, data protection and
data safety is also to be ensured to avoid even the remote
possibility of data profiling or data leakage.
221) Notwithstanding the statutory provision discussed above, we are
of the view that there is a need for a proper legislative
mechanism for data protection. The Government is not unmindful
of this essential requirement. During the arguments it was stated
by Mr. K.K. Venugopal, learned Attorney General, that an expert
committee heading by Justice B.N. Srikrishna (Retd.) was
constituted which was looking into the matter. The said
Committee has since given its report.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 296 of 567
222) In this behalf, it may be worthwhile to mention that one of the first
comprehensive reports on data protection and informational
privacy was prepared by the Group of Experts 79 constituted by
the Planning Commission of India under the Chairmanship of
Retd. Justice A.P. Shah, which submitted a report on 16 October,
2012. The five salient features of this report were expected to
serve as a conceptual foundation for legislation protecting
privacy. The framework suggested by the expert group was
based on five salient features: (i) Technological neutrality and
interoperability with international standards; (ii) Multi-Dimensional
privacy; (iii) Horizontal applicability to state and non-state entities;
(iv) Conformity with privacy principles; and (v) A co-regulatory
enforcement regime.
223) The Union Government, on 31 July 2017, had constituted a
committee chaired by Retd.Justice B N Srikrishna, former Judge
of the Supreme Court of India to review data protection norms in
the country and to make recommendations. The Committee
recently released its report and the first draft of the Personal Data
Protection Bill, 2018 which comprehensively addresses the
processing of personal data where such data has been collected,
79 “Report of the Group of Experts on Privacy” (16 October, 2012), Government of India, available
at
Writ Petition (Civil) No. 494 of 2012 connected matters Page 297 of 567
disclosed, shared or otherwise processed within the territory ofIndia. The bill has incorporated provisions and principles from the
Europe’s General Data Protection Regulation (EUGDPR).
224) The Draft Bill replaces the traditional concepts of data controller
i.e. the entity which processes data and data subject i.e. the
natural person whose data is being collected, with data ‘fiduciary’
and data ‘principal’. It aims to create a trust-based relationship
between the two.
225) The Bill largely incorporates data protection principles from the
EUGDPR and EU data protection jurisprudence, including fair
and reasonable processing of data, purpose limitation, collection
limitation, lawful processing, storage limitation, data quality and
accountability. The Draft bill and the report cull out rights and
obligations of the data fiduciary and data controller respectively.
These rights include the right to access and correction, the right
to data portability and right to be forgotten – a right to prevent or
restrict disclosure of personal data by a fiduciary. Most
importantly, consent has been given a crucial status in the draft
data protection law. Thus, a primary basis for processing of
personal data must be individual consent. This consent is
required to be free, informed, specific, clear and, in an important
Writ Petition (Civil) No. 494 of 2012 connected matters Page 298 of 567
addition, capable of being withdrawn. The Authority under the Billis obligated and empowered to ensure protection of data from
misuse and compromise.
226) Processing of biometric data, classified as ‘Sensitive Personal
Data’ (SPD), by the data fiduciary mandates additional
safeguards (mentioned under Chapter IV of the Bill). For
example, the data fiduciary is required to undertake Data
Protection Impact Assessment under the provisions of the Bill.
The Draft Bill allows processing of biometric data for the exercise
of any function of the State authorised by law for the provision of
any service or benefit to the data principal. Special provisions to
protect sensitive and personal data of children also exist. For
example, Data fiduciaries shall be barred from profiling, tracking,
or behavioural monitoring of, or targeted advertising directed at,
children and undertaking any other processing of personal data
that can cause significant harm to the child.
227) For security of data and protection of breach, the Draft Bill has
separate provisions which require use of methods such as de-
identification and encryption and other steps necessary to protect
the integrity of personal data and to prevent misuse, unauthorised
access to, modification, disclosure or destruction of personal
Writ Petition (Civil) No. 494 of 2012 connected matters Page 299 of 567
data. The data fiduciary is required to immediately notify theAuthority of any personal data breach relating to any personal
data processed by the data fiduciary where such breach is likely
to cause harm to any data principal. It also incorporates a
provision for Grievance Redressal.
228) The Draft Bill creates several exceptions and exemptions for
processing data by the State. These are situations where rights
and obligations of data principals and data fiduciaries may not
apply in totality. Such situations include national security,
prevention of crime, allocation of resources for human
development, protection of revenue, etc. The committee asserts
that such exceptions have been envisaged in the Puttaswamy
judgement as legitimate interests of the state and satisfy the
proportionality test.
229) The Srikrishna Committee Report and the Draft Data Protection
Bill are the first articulation of a data protection law in our country.
They have incorporated many of the progressive data protection
principles inspired by the EUGDPR. There may be indeed be
scope for further fine tuning of this law through a consultative
process, however, we are not far away from a comprehensive
data protection regime which entrenches informational and data
Writ Petition (Civil) No. 494 of 2012 connected matters Page 300 of 567
privacy within our laws and legal system. We hope that therewould be a robust statutory regime in place in near future.
230) The aforesaid discussion leads us to hold that the protection that
there is going to be a surveillance state created by the Aadhaar
project is not well founded, and in any case, taken care of by the
diffluence exercise carried out with the striking down certain
offending provisions in their present form.
Privacy:
Whether Aadhaar Act violates right to privacy and is
unconstitutional on this ground?(This issue is considered in the context of Section 7 and
Section 8 of the Act.)231) The petitioners submit that right to privacy and dignity and
individual autonomy have been established by various cases. In
Gobind v. State of M.P.80, this Court held:
“the significance of man's spiritual nature, of his feelings
and of his intellect and that only a part of the pain,
pleasure, satisfaction of life can be found in material things
and therefore they must be deemed to have conferred
upon the individual as against the Government, a sphere
where he should be let alone.xx xx xx
24. Any right to privacy must encompass and protect the
personal intimacies of the home, the family, marriage,
motherhood, procreation and child rearing. This catalogue
approach to the question is obviously not as instructive as
it does not give analytical picture of the distinctive
characteristics of the right of privacy. Perhaps, the only
80 (1975) 2 SCC 148
Writ Petition (Civil) No. 494 of 2012 connected matters Page 301 of 567
suggestion that can be offered as unifying principle
underlying the concept has been the assertion that a
claimed right must be a fundamental right implicit in the
concept of ordered liberty.25. Rights and freedoms of citizens are set forth in the
Constitution in order to guarantee that the individual, his
personality, and those things stamped with his personality
shall be free from official interference except where a
reasonable basis for intrusion exists. “Liberty against
Government” a phrase coined by Professor Corwin
expresses this idea forcefully. In this sense, many of the
fundamental rights of citizens can be described as
contributing to the right to privacy.26. As Ely says:
“There is nothing to prevent one from using the word
‘privacy’ to mean the freedom to live one's life without
governmental interference. But the Court obviously does
not so use the term. Nor could it, for such a right is at stake
in every case.”232) To recapitulate briefly, the judgment of K.S. Puttaswamy has
affirmed the following –
(i) privacy has always been a natural right, and the correct
position has been established by a number of judgments starting
from Gobind. Privacy is a concomitant of the right of the
individual to exercise control over his or her personality. Equally,
privacy is the necessary condition precedent to the enjoyment of
any of the guarantees in Part III. The fundamental right to privacy
would cover at least three aspects—(i) intrusion with an
individual’s physical body, (ii) informational privacy and (iii)
privacy of choice. Further, one aspect of privacy is the right to
Writ Petition (Civil) No. 494 of 2012 connected matters Page 302 of 567
control the dissemination of personal information. Every individualshould have a right to be able to control exercise over his/her own
life and image as portrayed in the world and to control
commercial use of his/her identity.
(ii) The sanctity of privacy lies in its functional relationship with
dignity. Privacy ensures that a human being can lead a life of
dignity by securing the inner recesses of the human personality
from unwanted intrusions. While the legitimate expectation of
privacy may vary from intimate zone to the private zone and from
the private to the public arena, it is important to underscore that
privacy is not lost or surrendered merely because the individual is
in a public place. Privacy is a postulate of dignity itself. Privacy
concerns arise when the State seeks to intrude into the body and
the mind of the citizen.
(iii) Privacy as intrinsic to freedom, liberty and dignity. The right
to privacy is inherent to the liberties guaranteed by Part-III of the
Constitution and privacy is an element of human dignity. The
fundamental right to privacy derives from Part-III of the
Constitution and recognition of this right does not require a
constitutional amendment. Privacy is more than merely a
derivative constitutional right. It is the necessary basis of rights
guaranteed in the text of the Constitution.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 303 of 567
(iv) Privacy has both positive and negative content. The
negative content restrains the State from committing an intrusion
upon the life and personal liberty of a citizen. Its positive content
imposes an obligation on the State to take all necessary
measures to protect the privacy of the individual.
(v) Informational Privacy is a facet of right to privacy. The old
adage that ‘knowledge is power’ has stark implications for the
position of individual where data is ubiquitous, an all-
encompassing presence. Every transaction of an individual user
leaves electronic tracks, without her knowledge. Individually these
information silos may seem inconsequential. In aggregation,
information provides a picture of the beings. The challenges
which big data poses to privacy emanate from both State and
non-State entities.
(vi) Right to privacy cannot be impinged without a just, fair and
reasonable law. It has to fulfil the test of proportionality i.e. (i)
existence of a law (ii) must serve a legitimate State aim and (iii)
proportionate.
233) We have also remarked, in paragraph 85 above, the taxonomy of
privacy, namely, on the basis of ‘harms’, ‘interest’ and
‘aggregation of rights’. We have also discussed the scope of
right to privacy with reference to the cases at hand and the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 304 of 567
circumstances in which such a right can be limited. In theprocess, we have also taken note of the passage from the
judgment rendered by Nariman, J. in K.S. Puttaswamy stating the
manner in which law has to be tested when it is challenged on the
ground that it violates the fundamental right to privacy. Keeping
in mind all these considerations and parameters, we proceed to
deal with the argument on right to privacy.
234) It is argued that the Aadhaar project, during the pre-Act period
(2009/10 – July, 2016), violated the Right to Privacy with respect
to personal demographic as well as biometric information
collected, stored and shared as there was no law authorizing
these actions. In a digital society an individual has the right to
protect herself by controlling the dissemination of such personal
information. Compelling an individual to establish her identity by
planting her biometric at multiple points of service violates privacy
involving the person. The seeding of Aadhaar in distinct data
bases enables the content of information about an individual that
is stored in different silos to be aggregated. This enables the
State to build complete profiles of individuals violating privacy
through the convergence of data.
235) It is also contended that the citizen’s right to informational privacy
Writ Petition (Civil) No. 494 of 2012 connected matters Page 305 of 567
is violated by authentication under the Aadhaar Act inasmuch asthe citizen is compelled to ‘report’ her actions to the State. Even
where a person is availing of a subsidy, benefit or service from
the State under Section 7 of the Act, mandatory authentication
through the Aadhaar platform (without an option to the citizen to
use an alternative mode of identification) violates the right to
informational privacy. An individual’s rights and entitlements
cannot be made dependent upon an invasion of his or her bodily
integrity and his or her private information which the individual
may not be willing to share with the State. The bargain underlying
section 7 is an unconscionable, unconstitutional bargain. Section
7 is against the constitutional morality contained in both Part III as
well the Part IV of the Constitution of India.
236) It was also highlighted that today the fastest growing businesses
are network orchestrators, the likes of Facebook and Uber, which
recreate a network of peers in which participants interact and
share value in creation. The most important assets for these
network orchestrators is information. Although, individuals share
information with these entities, such information is scattered, not
concentrated in a single authority or aggregated. If information,
collected in different silos is aggregated and centralized, it can
afford easy access to a person’s complete profile, including her
Writ Petition (Civil) No. 494 of 2012 connected matters Page 306 of 567
social groups, proclivities, habits, inclinations, tastes etc. Theentity that holds the key to such information would then be in an
extremely powerful position, especially if such entity is the State.
Since informational privacy is a part of Right to Privacy, it had to
be saved. The peittioners pointed out that the significance of
information being aggregated was noted by Hon’ble Court in K.S.
Puttaswamy as follows:
“300 ...Yet every transaction of an individual user and every
site that she visits, leaves electronic tracks generally
without her knowledge. These electronic tracks contain
powerful means of information which provide knowledge of
the sort of person that the user is and her interests.
Individually, these information silos may seem
inconsequential. In aggregation, they disclose the nature of
the personality: food habits, language, health, hobbies,
sexual preferences, friendships, ways of dress and political
affiliation. In aggregation, information provides a picture of
the being: of things which matter and those that don't, of
things to be disclosed and those best hidden…xx xx xx
305. Daniel J Solove deals with the problem of
"aggregation". Businesses and governments often
aggregate a variety of information fragments, including
pieces of information which may not be viewed as private
in isolation to create a detailed portrait of personalities and
behaviour of individuals. Yet, it is now a universally
accepted fact that information and data flow are
"increasingly central to social and economic ordering".
Individuals are identified with reference to tax records,
voting eligibility, and government-provided entitlements.There is what is now described as "'veillant panoptic
assemblage', where data gathered through the ordinary
citizen's veillance practices finds its way to state
surveillance mechanisms, through the corporations that
hold that data.”Writ Petition (Civil) No. 494 of 2012 connected matters Page 307 of 567
237) It was further argued that test of proportionality was not satisfied
as the extent of information collected is not proportionate to the
‘compelling interest of the State’. Various judgments were citied
where the principle of proportionality has been established by this
court. In Chairman, All India Railway Recruitment Board v. K
Shyam Kumar and others81, this Court held as follows:
“37. ...Proportionality requires the court to judge whether
action taken was really needed as well as whether it was
within the range of courses of action which could
reasonably be followed. Proportionality is more concerned
with the aims and intention of the decision-maker and
whether the decision-maker has achieved more or less the
correct balance or equilibrium. The court entrusted with the
task of judicial review has examine whether decision taken
by the authority is proportionate i.e. well balanced and
harmonious, to this extent the court may indulge in a merit
review and if the court finds that the decision is
proportionate, it seldom interferes with the decision taken
and if it finds that the decision is disproportionate i.e. if the
court feels that it is not well balanced or harmonious and
does not stand to reason it may tend to interfere.”238) Attention was also drawn to the judgment in Modern Dental
College Research Centre, wherein this Court established the
four-limb test of proportionality. It was argued that Aadhaar failed
to meet the test laid down therein.
239) According to the petitioners, there is no compelling state interest
for State to know the details of the location and time of using
Aadhaar authentication. Likewise, there are various other
81 (2010) 6 SCC 614
Writ Petition (Civil) No. 494 of 2012 connected matters Page 308 of 567
methods available for identification. Submission was that one ofthe objects of the Aadhaar project is to ensure targeted delivery in
the disbursement of government subsidies benefits and services
in India. Identification for this purpose can be carried out by
various other identity documents issued by the government of
India, such as passport, voting card, ration card, driving license,
job card issued by NREGA duly signed by an officer of the State
government, employment certificate by a public authority, birth
certificate, school leaving certificate, PAN card, overseas Indian
citizen card/PIO/OCI of Indian origin card. There is no justification
to impose Aadhaar under as the exclusive means of identification
under Section 7, without which a person would be unable to
secure her entitlements. Such mandate would not only infringe
upon the privacy of a person and violate a person’s fundamental
rights, but would also unreasonably deprive a person of her
entitlements on a ground that has little connection with her right
to receive such entitlements.
240) Judgment in the case of Jordan Ors v. State82 was also cited
wherein Sachs O’Regan JJ. concurringly held that continuum
of privacy rights start with the inviolable inner self, move to
the home, and end with the public realm; and that
82 (2002) ZACC 22
Writ Petition (Civil) No. 494 of 2012 connected matters Page 309 of 567
commitment to dignity invests great value in the inviolabilityand worth of the body. Decisional privacy allows individuals to
make decisions about their own body, and is an aspect of
right to self determination. It is underscored by personal
autonomy, which prevents the State from using citizens as
puppets and controlling their body and decisions.
Informational privacy deals with a person’s mind and
comprises of (i) anonymity, (ii) secrecy, and (iii) freedom. It
is premised on the assumption that all information about a
person is in a fundamental way her own, for her to
communicate or retain for herself as she sees fit.
241) It was submitted that privacy rights against both the State and
non-State actors. There is a qualitative difference between right
to privacy against the State and against Non-state actors. Subba
Rao. J’s dissent in Kharak Singh, was relied upon wherein it was
stated that the existence of concentrated and centralized State
power, rather than its actual or potential use that creates the
chilling effect and leads to psychological restraint on the ability of
citizens to think freely. Therefore, individuals have a higher
expectation of privacy from the State. In the vein, it was further
submitted that the State was imposing disproportionate and
unreasonable State compulsion. States do not have the power to
Writ Petition (Civil) No. 494 of 2012 connected matters Page 310 of 567
compel their citizens to do particular acts, except in anarrow range of defined circumstances. As sentinels on the
qui vive, Courts are duty bound to protect citizens against
State compulsion, whether in the context of forcibly
undergoing narco-analysis/lie detectors tests or forcibly
undergoing sterilization. Compulsion can be used in limited
circumstances such as punishment for law-breaking, compulsion
in the aid of law enforcement, and compulsion to prevent
potential law-breaking. These include fines, imprisonment,
fingerprint collection for criminals and prisoners. Even in medical
jurisprudence, the case of Common Cause v. Union of India83
elaborates on the concepts of dignity, bodily integrity and
decisional autonomy. For DNA tests and blood tests to be
conducted a high standard of evidence is required. Similarly
‘refusal of treatment’ is a constitutionally protected liberty interest
in the United States of America as stated in the case of Cruzan v.
Director, Missouri Dept. of Health84.
242) The petitioners further submitted that although the Aadhaar Act
is ostensibly framed as a voluntary entitlement to establish
one’s identity under section 3 read with Section 4(3) of the
Aadhaar Act, the actions of the Executive and private entities
83 Writ Petition (Civil) No. 215 of 2005
84 497 US 361 (1990)
Writ Petition (Civil) No. 494 of 2012 connected matters Page 311 of 567
under sections 7 and 57 have made possession of Aadhaar defacto mandatory. Residents have thus been forced to obtain
an Aadhaar number, for continued access to statutory
entitlements and services. 252 government schemes have
been notified by various Ministries/Departments of the
Central Government under section 7 (as on 30.11.2017)
requiring Aadhaar as a condition precedent for availing
services, subsidies and benefits including for persons with
disabilities, for SC/STs, and for rehabilitation of Manual
Scavengers. It has also been made mandatory for mobile
services, banking and tax payments, registration of students of
CBSE, amongst other things. It thus pervades every aspect of an
individual’s life. Concomitantly, there is no opt out option in the
Aadhaar Act, which makes consent irrevocable and deprives
individuals the ability to make decisions about their life.
243) As per the petitioners, this kind of mandatory nature of Section 7
violates Article 14. They submit that mandatory authentication
has caused, and continues to cause, exclusion of the most
marginalized sections of society. Proof of possession of an
enrolment number or undergoing Aadhaar authentication is a
mandatory pre-requisite for receiving subsidised food grain
under the National Food Security Act. It creates “undue
Writ Petition (Civil) No. 494 of 2012 connected matters Page 312 of 567
burden” on citizen which is unconstitutional. Successful monthlyauthentication is contingent on harmonious working of all
attendant Aadhaar processes and technologies–i.e. correct
Aadhaar-seeding, successful fingerprint recognition, mobile
and wireless connectivity, electricity, functional POS
machines and server capacity–each time. It is also dependant
on age, disability (e.g.leprosy), class of work (e.g. manual
labour), and the inherently probabilistic nature of biometric.
Economic Survey of India 2016 reports that authentication
failures have been as high as 49% in Jharkhand and 37%
in Rajasthan, recognising that “failure to identify genuine
beneficiaries results in exclusion error”.
244) The exclusion is not simply a question of poor
implementation that can be administratively resolved, but
stems from the very design of the Act, i.e. the use of
biometric authentication as the primary method of
identification. Determination of legal entitlements is contingent
on a positive authentication response from the UIDAI.
Biometric technology does not guarantee 100% accuracy and
is fallible, with inevitable false positives and false negatives
that are design flaws of such a probabilistic system,
especially because biometrics also change over time.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 313 of 567245) Classification caused by the Act lacks rational nexus. The
entitlement of an individual depends upon status, and not
proof of identity. At the point of use, The Biometric
Authentication divides residents into two classes: those who
have and do not have Aadhaar; and those who authenticate
successfully, and those who do not. Given that the
probability of biometric mismatch is greatest for the aged,
disabled, and individuals engaging in manual labour –
amongst the most vulnerable sections of society–the
decision to use periodic biometric authentications has a
direct and disparate effect of violating fundamental rights of
this class. This division bears no rational nexus with the
question of status for receiving benefits. It leads to under-
inclusion, and is thus arbitrary, causing an Article 14
violation.
246) It is also argued that mandatory nature of Section 7 violates
Article 21 as well. The Aadhaar Act alters the entire design
institutional structure through which residents were receiving
entitlements. Mandatory imposition of Aadhaar violates their
rights to choose how to identify themselves to the
government in a reasonable and non-intrusive fashion. On
Writ Petition (Civil) No. 494 of 2012 connected matters Page 314 of 567
making Aadhaar mandatory, instead of the citizen’s right tofood and a correlative duty on the State to take action to
ensure the proper fulfilment of such rights, the State is
exercising its power to convert the constitutional rights of its
citizens into liabilities.
247) As per the petitioners, having established the infringement of
Article 21, the invasion is not justified under the principle of
proportionality. The State’s primary justification of eliminating
welfare leakages and ensuring “better targeting” does not
stand up to judicial scrutiny.
First, it has failed to discharge its burden of showing
that the purported leakages were exclusively caused due to
identity fraud, and that those leakages would not exist if
Aadhaar is implemented. The state has not given any empirical
data. Leakages exist due to eligibility frauds, quantity frauds and
identity frauds. Studies filed in Petitioner’s affidavits show that
eligibility and quantity frauds are the substantial cause for
leakages. Assuming that the Aadhaar Act prevents leakages, the
biometric identification system can, at best, only cure leakages
related to identity fraud. The government’s claims of savings
inter alia of Rs. 14,000 crores in the PDS system, due to the
deletion of 2.33 crore ration cards is incorrect, inflated, and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 315 of 567
based on wrong assumptions for the following reasons:(a) it admittedly does not have estimates of leakages in
PDS, nor has any study been done to see if POS machines
are effective in removing PDS irregularities;
(b) it conflates issue of “bogus /ineligible ration cards”
(eligibility fraud) with identity fraud;
(c) the figure of 2.33 crore includes West Bengal, where
ration cards are issued to each person, as opposed to each
household;
(d) a large number of these 2.33 crore cards were deleted
even before Aadhaar-integration and seeding came into
effect;
(e) the savings figure includes even those eligible
beneficiaries who have been removed from the list due to
failure to link Aadhaar properly; and
(f) it does not value the cost of loss of privacy. Most
importantly, the basis for reaching such savings figure has
not been disclosed.
Similarly, incorrect averments have been made in the
context of LPG savings, using Aadhaar-enabled Direct Benefit
Transfer (‘DBT’) scheme known as PAHAL.
Secondly, it has failed to show how the introduction of
Writ Petition (Civil) No. 494 of 2012 connected matters Page 316 of 567
Aadhaar will stop the losses causes on any of the groundsabove. Aadhaar is susceptible to its own unique forms of mischief
by the vendor.
Thirdly, the State has failed to demonstrate that other,
less invasive ways would be significantly worse at addressing
the problem, especially given recent studies that found a
significant reduction in PDS leakages, due to innovations
devised to work within the PDS system; alternatives such as
food coupons, digitisation of records, doorstep delivery, SMS
alerts, social audits, and toll-free helplines have not been
looked at.
Fourthly, the absence of proportionality is further
established by the fact of systematic exclusion.
248) The respondents refuted, in strongest possible manner, all the
aforesaid submissions in the following manner:
(i) No reasonable expectation of privacy
At the outset it was argued that Right to Privacy exists when
there is a reasonable expectation of privacy. K.S. Puttaswamy
judgment, US case law, UK case laws and the European cases
on Article 8 of ECHR were referred to to determine the contours
of reasonable expectation of privacy. Submission was that the Act
Writ Petition (Civil) No. 494 of 2012 connected matters Page 317 of 567
operates in the public and relational sphere and not in the core,private or personal sphere of residents. It involves minimal
identity information for effective authentication. The purpose is
limited to authentication for identification. Section 29 of the
Aadhaar Act, 2016 provides protection against disclosure of
identity information without the prior consent of the ANH
concerned. Sharing is intended only for authentication purposes.
It was also submitted that there is no reasonable expectation of
privacy with respect to identity information collected under the
Aadhaar Act for the purposes of authentication and therefore
Article 21 is not attracted.
249) The respondents point out that four types of information collected
for providing Aadhaar (i). Mandatory demographic information
comprising name, date of birth, address and gender [Section 2(k)
read with Regulation 4(1) of the Aadhaar (Enrolment and Update)
Regulations, 2016]; (ii) Optional demographic information
[Section 2(k) read with Regulation 4(2) of the Aadhaar (Enrolment
and Update) Regulations, 2016]. (iii) Non-core biometric
information comprising photograph. (iv) Core biometric
information comprising finger print and iris scan.
250) Demographic information, both mandatory and optional, and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 318 of 567
photographs does not raise a reasonable expectation of privacyunder Article 21 unless under special circumstances such as
juveniles in conflict of law or a rape victim’s identity. Today, all
global ID cards contain photographs for identification alongwith
address, date of birth, gender etc. The demographic information
is readily provided by individuals globally for disclosing identity
while relating with others and while seeking benefits whether
provided by government or by private entities, be it registration for
citizenship, elections, passports, marriage or enrolment in
educational institutions. Email ids and phone numbers are also
available in public domain, For example in telephone directories.
Aadhaar Act only uses demographic information which are not
sensitive and where no reasonable expectation of privacy exists -
name, date of birth, address, gender, mobile number and e mail
address. Section 2(k) specifically provides that Regulations
cannot include race, religion, caste, tribe, ethnicity, language,
records of entitlement, income or medical history. Thus, sensitive
information specifically stand excluded.
251) Face Photographs for the purpose of identification are not
covered by a reasonable expectation of privacy. Barring
unpublished intimate photographs and photographs pertaining to
confidential situations there will be no zone of privacy with
Writ Petition (Civil) No. 494 of 2012 connected matters Page 319 of 567
respect to normal facial photographs meant for identification.Face-photographs are given by people for driving license,
passport, voter id, school admissions, examination admit cards,
employment cards, enrolment in professions and even for entry in
courts. In our daily lives we recognize each other by face which
stands exposed to all, all the time. The face photograph by itself
reveals no information.
252) There is no reasonable expectation of privacy with respect to
fingerprint and iris scan as they are not dealing with the intimate
or private sphere of the individual but are used solely for
authentication. Iris scan is nothing but a photograph of the eye,
taken in the same manner as a face photograph. Fingerprints and
iris scans are not capable of revealing any personal information
about the individual except for serving the purpose of
identification. Fingerprints are largely used in biometric
attendance, laptops and mobiles. Even when a privacy right
exists on a fingerprint, it will be weak. Finger print and iris scan
have been considered to be the most accurate and non-invasive
mode of identifying an individual. They are taken for passports,
visa and registration by the State and also used in mobile
phones, laptops, lockers etc for private use. Biometrics are being
used for unique identification in e passports by 120 countries.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 320 of 567(ii) Least intrusive and strict scrutiny tests do not apply in the
proportionality test.
Learned Attorney General argued that the “least intrusive
test” is not applicable while asserting the test of proportionality.
He relied on various U.S. Supreme Court judgments which
explicitly rejected the test and the case of Modern Dental College
Research Centre which does not use the least intrusive
measure test while undertaking the proportionality test.
Mr.Dwivedi contends that the least intrusive means of
achieving the state object, while carrying out the proportionality
test, has been rejected by Indian courts in a catena of decisions
as it involves a value judgment or second guessing of the
Legislation. Such a test violates the separation of powers
between the legislature and the judiciary. Even assuming that the
‘least intrusive method’ test applies, the exercise of determining
the least intrusive method of identification is a technical exercise
and cannot be undertaken in the court of law. Moreover, the
Petitioners, who have furnished smartcards as an alternative,
have not established that smartcards are less intrusive than the
Aadhaar card authentication process.
The argument of applying the ‘Strict Scrutiny Test’ to test
the Constitutionality of the Aadhaar Act by the Petitioners was
Writ Petition (Civil) No. 494 of 2012 connected matters Page 321 of 567
flawed. Strict scrutiny test is a test conceptualised in the UnitedStates, only applied to ‘super suspect legislations’. This
compulsion arises because the scope of reasonable restrictions
not having been specified specifically in the U.S. Constitution.
That leaves the scrutiny of the Legislations by the courts based
on the due process clause in the U.S. Constitution. Such a test
does not have applicability in India. In Ashoka Kumar Thakur
(2008) 6 SCC 1, the court referred to the test of strict scrutiny,
narrow tailoring and compelling interest and observed that these
principles cannot be applied directly to India as affirmative action
is Constitutionally supported.
(iii) Act satisfies Proportionality Test
Ld. Attorney General submitted that the legitimate state
interest that the Aadhaar Act fulfils are prevention of leakages and
dissipation of subsidies and social welfare benefits that are
covered under Section 7 of the Aadhaar Act. He also submits that
the larger public/state interest is to be decided by the State and
cannot be second guessed by the Judiciary. The state had
rejected the idea of ‘smart cards’ and other alternative models
after due deliberations.
The learned Attorney General cited various reports
highlighting leakages, wastage, high costs and inefficiencies in
Writ Petition (Civil) No. 494 of 2012 connected matters Page 322 of 567
the Public Distribution System, MGNREGA scheme and fuelsubsidy. He cited the Thirteenth Finance Commission Report
2010-2015 which stated that creation of a biometric-based unique
identity for all residents in the country has potential to
address need of the government to ensure that only eligible
persons are provided subsidies and that all eligible persons
are covered. He also cited the Economic Surveys of 2014-15 and
2015-16 both of which dilated upon the benefits of Aadhaar. The
2015-16 Survey says that the use of Aadhaar has significantly
reduced leakages in LPG and MGNREGA with limited
exclusion of the poor by linking households' LPG customer
numbers with Aadhaar numbers to eliminate ‘ghosts’ and
duplicate households from beneficiary rolls. The United
Nations, in its report titled ‘Leaving No One Behind: the
imperative of inclusive development’, praised India’s decision of
launching Aadhaar as it will be a step forward in ensuring
inclusion of all people especially the poorest and the most
marginalized.
This court in the case of PUCL v. Union of India85 has
approved the recommendations of the High-powered committee
headed by Justice D.P Wadhwa, which recommended linking
85 (2011) 14 SCC 331
Writ Petition (Civil) No. 494 of 2012 connected matters Page 323 of 567
of Aadhaar with PDS and encouraged State Governments toadopt the same. The court also lauded the efforts of State
government for using biometric identification. He also referred to
the case of Binoy Viswam v. Union of India86 where the economic
rationale for and benefits of Aadhaar was discussed and
validated.
Mr. Dwivedi has argued that 3% of GDP amounting to
trillions of rupees is allocated by Governments towards subsidies,
scholarships, pensions, education, food and other welfare
programmes. But approximately half of if does not reach the
intended beneficiaries. Aadhaar is necessary for fixing this
problem as there is no other identification document which is
widely and commonly possessed by the residents of the country
and most of the identity documents do not enjoy the quality of
portability. Moreover, Aadhaar lends assurance and accuracy on
account of existence of fake, bogus and ghost cards, vide the
process of de-duplication and authentication. De-duplication is
ensured by the three sub systems are :- (i) demographic de-
duplication (ii) multi-ABIS multi-modal biometric de-duplication (iii)
manual adjudication. Biometric system provides high accuracy of
over 99.86 %. The mixed biometric have been adopted only to
86 (2017) 7 SCC 59
Writ Petition (Civil) No. 494 of 2012 connected matters Page 324 of 567
enhance the accuracy and to reduce the errors which may ariseon account of some residents either not having biometrics or not
having some particular biometric.
(iv) Act empowers various facets of right to life under Article 21
The Ld. Attorney General submitted that Section 7 of the Act
is traceable to Article 21 of the Constitution. Right to life is not a
mere animal existence but the right to live with human dignity
which includes the right to food, the right to shelter, right to
employment, right to medical care, etc. Fulfilling these rights will
justify the minimal invasion of the right to privacy of the citizens.
The counsel for the respondent also referred to the case of
G. Sundarrajan v. Union of India87 in which the petitioner therein
challenged the violation of their Right to the Life due to the risk
posed by the Kudanakulam Nuclear Plant. The court struck a
balance between production of nuclear energy, which was of
extreme importance for the economic growth, alleviation of
poverty, generation of employment , and the violation of right to
life and dignity under Article 21 posed by the threat of a nuclear
disaster. The court observed that adequate safety measure –
both in design and operation - had been taken hence the violation
of right to life was justified.
87 (2013) 6 SCC 670
Writ Petition (Civil) No. 494 of 2012 connected matters Page 325 of 567253) The argument of ‘illusory consent’ was refuted with the
submission that Section 7 of the Act which mandatorily requires
Aadhaar for receipt of benefit, service or subsidy linked to the
Consolidated Fund of India, does not violate any Fundamental
Rights. It involves a balancing of two Fundamental Rights: the
Right to Privacy and the positive obligation of the State to ensure
right to food, shelter and employment under Article 21 of the
Constitution. Aadhaar enables furtherance of Article 21 by
eliminating leakages and ensuring that no deserving individual is
denied her/his entitlement. The object of the Act i.e. the
efficient, transparent and targeted delivery of subsidies,
benefits and services to genuine beneficiaries is in,
furtherance of various facets of Article 21 of the poor people
of India and in furtherance of the Directive Principles of
State Policy inter alia Articles 38,39, 41, 43, 47 and 48.
254) It was further argued that Section 7 is not a restriction at all and it
does not require any surrender of Fundamental Rights. It is
merely a regulatory procedure to receipt of subsidy, benefit or
service. Section 7 purports to enliven the Fundamental Right
under Article 21 , and Article 14. To achieve the goal of enlivening
Fundamental Rights of the poor and the deprived and to prevent
Writ Petition (Civil) No. 494 of 2012 connected matters Page 326 of 567
siphoning off the benefits, service or subsidy, it becomesnecessary to require compliance with the condition of undergoing
authentication.
255) Section 7 of the Aadhaar Act protects right to human dignity
recognized by Article 21 of the Constitution. Aadhaar is used as
means of authentication for availing services, benefits and
subsidies. Welfare schemes funded from the consolidated fund of
India such as PDS, scholarship, mid day meals, LPG subsidies,
free education ensure that the Right to Life and Dignity of citizens
are being enforced, which includes Justice (Social, Political and
Economic). It also eliminates inequality with a view to ameliorate
the poor, Dalits and other downtrodden classes and sections of
the society.
256) In response to the argument that Fundamental Right to Privacy
cannot be waived, the Mr.Dwivedi submits that Section 7 of the
Aadhaar Act does not involve any issue of waiver. When an
individual undergoes any authentication to establish his identity to
receive benefits, services or subsidy, he does so to enliven his
Fundamental Right to life and personal liberty under Article 21.
When an individual makes a choice to enter into a relational
sphere then his choice as to mode of identification would
Writ Petition (Civil) No. 494 of 2012 connected matters Page 327 of 567
automatically get restricted on account of the autonomy of theindividuals or institution with whom he wishes to relate. This is
more so where the individual seeks employment, service ,
subsidy or benefits. Moreover, Aadhaar is of a Universal nature,
unlike any other identification card which are not portable. They
generally have a localized value and limited purpose.
257) In response to the arguments of the petitioners that Aadhaar
reduces individuals to numbers, it was submitted that the
Aadhaar number is absolutely necessary for authentication and it
is solely used for that purpose. It was argued that the petitioner
have conflated the concepts of identity and identification.
Authentication is merely an identification process and does not
alter the identity of an individual. Further Aadhaar number is a
randomly generated number and bears no relation to the
attributes of individuals. It is similar to an examiner allotting codes
to examinees for administrative convenience.
258) It was also argued that the State has an obligation to enlivening
right to food, right to shelter etc envisaged under Article 21 and
for this purpose they may encroach upon the right of privacy of
the beneficiaries. The state requires to strike a fair balance
between the right of privacy and right to life of beneficiaries. An
Writ Petition (Civil) No. 494 of 2012 connected matters Page 328 of 567
example furnished by the counsel for this is the Prohibition OfEmployment as Manual Scavengers and their Rehabilitation Act,
2013, which restricts a scavenger’s right to practice any
profession, occupation, trade or business under Article 19(g) is
order to enliven Article 21 and 17. The counsel also gave the
example of the practice of dwarftossing, which was banned in
France. The law was challenged on ground that it interferes with
the economic right of one practicing it. The challenge was
negatived on the ground that permitting such a practice even
though voluntary will be degrading of human dignity by Human
Right Committee. Certain choices are restricted /prohibited by the
Constitution itself (Articles 17,18, 23 and 24). Article 23 abolishes
forced labour so it prohibits even those choosing to indulge in
forced labour from doing so. The aforesaid actually result in
enhancement of the Fundamental Right. The person is
emancipated from a social condition which is below human
dignity. Similarly Section 7 of the Act involves an identification for
the purpose of enhancing human dignity.
259) In response to the argument of Aadhaar causing exclusion, the
learned Attorney General responded by saying that if
authentication fails, despite more than one attempt, then the
possession of Aadhaar number can be proved otherwise i.e. by
Writ Petition (Civil) No. 494 of 2012 connected matters Page 329 of 567
producing the Aadhaar card. And those who do not have Aadhaarnumber can make an application for enrolment and produce the
enrolment id number).
260) Before we proceed to analyse the respective submissions, it has
also to be kept in mind that all matters pertaining to an individual
do not qualify as being an inherent part of right to privacy. Only
those matters over which there would be a reasonable
expectation of privacy are protected by Article 21. This can be
discerned from the reading of Paras 297 to 307 of the judgment,
relevant portions whereof have already been quoted above.
261) We may also clarify that the arguments of privacy are examined
in the context of Sections 7 and 8 and the provisions related
thereto under the Aadhaar Act. Validity of the other provisions of
the Aadhaar Act, which is questioned in these proceedings, is
dealt with separately. As per Section 7 of the Aadhaar Act in case
an individual wants to avail any subsidy benefit or services, she is
required to produce the Aadhaar number and, therefore, it
virtually becomes compulsory for such a person. To that extent
the petitioners may be right in submitting that even if enrolment in
Aadhaar is voluntary, it assumes the character of compulsory
enrolment for those who want to avail the benefits under Section
Writ Petition (Civil) No. 494 of 2012 connected matters Page 330 of 567
7. Likewise, authentication, as mentioned in Section 8, also
becomes imperative. The relevant question, therefore, is as to
whether invasion into this privacy meets the triple requirements or
right to privacy.
(i) Requirement of law : The Parliament has now passed
Aadhaar Act, 2016. Therefore, law on the subject in the form of a
statute very much governs the field and, thus, first requirement
stands satisfied. We may point out at this stage that insofar as
period from 2009 (when the Aadhaar scheme was launched with
the creation of Authority vide notification No. A-43011/02/2009-
Admin. I dated January 28, 2009 till the date Aadhaar Act came
into force i.e. March 26, 2016, it is the argument of the petitioners
that insofar as this period is concerned, it is not backed by any
law and, therefore, notification dated January 28, 2009 should be
struck down on this ground itself and all acts done including
enrolment under the Aadhaar scheme from 2009 to 2016 should
be invalidated. This aspect we propose to deal at a later stage.
At this juncture, we are looking into the vires of Aadhaar Act. In
that context, the first requirement stands fulfilled.
(ii) Whether Aadhaar Act serves legitimate State aim?
‘Introduction’ to the said Act gives the reasons for passing
that Act and the ‘Statement of Objects and Reasons’ mentions
Writ Petition (Civil) No. 494 of 2012 connected matters Page 331 of 567
the objectives sought to be achieved with the enactment of theAadhaar Act. ‘Introduction’ reads as under:
“The Unique Identification Authority of India was
established by a resolution of the Government of
India in 2009. It was meant primarily to lay down
policies and to implement the Unique Identification
Scheme, by which residents of India were to be
provided unique identity number. This number would
serve as proof of identity and could be used for
identification of beneficiaries for transfer of benefits,
subsidies, services and other purposes.Later on, it was felt that the process of enrolment,
authentication, security, confidentiality and use of
Aadhaar related information be made statutory so as
to facilitate the use of Aadhaar number for delivery of
various benefits, subsidies and services, the
expenditures of which were incurred from or receipts
therefrom formed part of the Consolidated Fund of
India.The Aadhaar (Targeted Delivery of Financial and
Other Subsidies, Benefits and Services) Bill, 2016
inter alia, provides for establishment of Unique
Identification Authority of India, issuance of Aadhaar
number to individuals, maintenance and updating of
information in the Central Identities Data Repository,
issues pertaining to security, privacy and
confidentiality of information as well as offences and
penalties for contravention of relevant statutory
provisions.”In the Statement of Objects and Reasons, it is inter alia
mentioned that though number of social benefits schemes have
been floated by the Government, the failure to establish identity of
an individual has proved to be a major hindrance for successful
implementation of those programmes as it was becoming difficult
to ensure that subsidies, benefits and services reach the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 332 of 567
unintended beneficiaries in the absence of a credible system toauthenticate identity of beneficiaries. The Statement of Objects
and Reasons also discloses that over a period of time, the use of
Aadhaar number has been increased manifold and, therefore, it is
also necessary to take measures relating to ensuring security of
the information provided by the individuals while enrolling for
Aadhaar card. Having these parameters in mind, Para 5 of the
Statement of Objects and Reasons enumerates the objectives
which the Aadhaar Act seeks to achieve. It reads as under:
“5. The Aadhaar (Targeted Delivery of Financial and
Other Subsidies, Benefits and Services) Bill, 2016
inter alia, seeks to provide for—(a) issue of Aadhaar numbers to individuals on
providing his demographic and biometric information
to the Unique Identification Authority of India;(b) requiring Aadhaar numbers for identifying an
individual for delivery of benefits, subsidies, and
services the expenditure is incurred from or the
receipt therefrom forms part of the Consolidated Fund
of India;(c) authentication of the Aadhaar number of an
Aadhaar number holder in relation to his demographic
and biometric information;(d) establishment of the Unique Identification
Authority of India consisting of a Chairperson, two
Members and a Member-Secretary to perform
functions in pursuance of the objectives above;(e) maintenance and updating the information of
individuals in the Central Identities Data Repository in
such manner as may be specified by regulations;Writ Petition (Civil) No. 494 of 2012 connected matters Page 333 of 567
(f) measures pertaining to security, privacy and
confidentiality of information in possession or control
of the Authority including information stored in the
Central Identities Data Repository; and(g) offences and penalties for contravention of
relevant statutory provisions.”262) After taking into consideration the Statement of Objects and
Reasons, a two Judge Bench of this Court in Binoy Viswam v.
Union of India Ors.88, recapitulated the objectives of Aadhaar in
the following manner:
“125. By making use of the technology, a method is sought
to be devised, in the form of Aadhaar, whereby identity of a
person is ascertained in a flawless manner without giving
any leeway to any individual to resort to dubious practices
of showing multiple identities or fictitious identities. That is
why it is given the nomenclature “unique identity”. It is
aimed at securing advantages on different levels some of
which are described, in brief, below:125.1. In the first instance, as a welfare and democratic
State, it becomes the duty of any responsible Government
to come out with welfare schemes for the upliftment of
poverty-stricken and marginalised sections of the society.
This is even the ethos of Indian Constitution which casts a
duty on the State, in the form of “directive principles of
State policy”, to take adequate and effective steps for
betterment of such underprivileged classes. State is bound
to take adequate measures to provide education, health
care, employment and even cultural opportunities and
social standing to these deprived and underprivileged
classes. It is not that Government has not taken steps in
this direction from time to time. At the same time, however,
harsh reality is that benefits of these schemes have not
reached those persons for whom that are actually meant.125.1.1. India has achieved significant economic growth
since Independence. In particular, rapid economic growth
has been achieved in the last 25 years, after the country88 (2017) 7 SCC 59
Writ Petition (Civil) No. 494 of 2012 connected matters Page 334 of 567
adopted the policy of liberalisation and entered the era of,
what is known as, globalisation. Economic growth in the
last decade has been phenomenal and for many years, the
Indian economy grew at highest rate in the world. At the
same time, it is also a fact that in spite of significant
political and economic success which has proved to be
sound and sustainable, the benefits thereof have not
percolated down to the poor and the poorest. In fact, such
benefits are reaped primarily by rich and upper middle
classes, resulting into widening the gap between the rich
and the poor.125.1.2. Jean Dreze and Amartya Sen pithily narrate the
position as under [An Uncertain Glory : India and its
Contradictions] :“Since India's recent record of fast economic growth
is often celebrated, with good reason, it is extremely
important to point to the fact that the societal reach of
economic progress in India has been remarkably
limited. It is not only that the income distribution has
been getting more unequal in recent years (a
characteristic that India shares with China), but also
that the rapid rise in real wages in China from which
the working classes have benefited greatly is not
matched at all by India's relatively stagnant real
wages. No less importantly, the public revenue
generated by rapid economic growth has not been
used to expand the social and physical infrastructure
in a determined and well-planned way (in this India is
left far behind by China). There is also a continued
lack of essential social services (from schooling and
health care to the provision of safe water and
drainage) for a huge part of the population. As we will
presently discuss, while India has been overtaking
other countries in the progress of its real income, it
has been overtaken in terms of social indicators by
many of these countries, even within the region of
South Asia itself (we go into this question more fully in
Chapter 3, ‘India in Comparative Perspective’).To point to just one contrast, even though India
has significantly caught up with China in terms of
GDP growth, its progress has been very much slower
than China's in indicators such as longevity, literacy,
child undernourishment and maternal mortality. In
South Asia itself, the much poorer economy of
Writ Petition (Civil) No. 494 of 2012 connected matters Page 335 of 567
Bangladesh has caught up with and overtaken India
in terms of many social indicators (including life
expectancy, immunisation of children, infant mortality,
child undernourishment and girls' schooling). Even
Nepal has been catching up, to the extent that it now
has many social indicators similar to India's, in spite
of its per capita GDP being just about one third.
Whereas twenty years ago India generally had the
second best social indicators among the six South
Asian countries (India, Pakistan, Bangladesh, Sri
Lanka, Nepal and Bhutan), it now looks second worst
(ahead only of problem-ridden Pakistan). India has
been climbing up the ladder of per capita income
while slipping down the slope of social indicators.”125.1.3. It is in this context that not only sustainable
development is needed which takes care of integrating
growth and development, thereby ensuring that the benefit
of economic growth is reaped by every citizen of this
country, it also becomes the duty of the Government in a
welfare State to come out with various welfare schemes
which not only take care of immediate needs of the
deprived class but also ensure that adequate opportunities
are provided to such persons to enable them to make their
lives better, economically as well as socially. As mentioned
above, various welfare schemes are, in fact, devised and
floated from time to time by the Government, keeping aside
substantial amount of money earmarked for spending on
socially and economically backward classes. However, for
various reasons including corruption, actual benefit does
not reach those who are supposed to receive such
benefits. One of the main reasons is failure to identify these
persons for lack of means by which identity could be
established of such genuine needy class. Resultantly, lots
of ghosts and duplicate beneficiaries are able to take
undue and impermissible benefits. A former Prime Minister
of this country [ Late Shri Rajiv Gandhi] has gone on record
to say that out of one rupee spent by the Government for
welfare of the downtrodden, only 15 paisa thereof actually
reaches those persons for whom it is meant. It cannot be
doubted that with UID/Aadhaar much of the malaise in this
field can be taken care of.263) It may be highlighted at this stage that the petitioners are making
their claim on the basis of dignity as a facet of right to privacy. On
Writ Petition (Civil) No. 494 of 2012 connected matters Page 336 of 567
the other hand, Section 7 of the Aadhaar Act is aimed at offeringsubsidies, benefits or services to the marginalised section of the
society for whom such welfare schemes have been formulated
from time to time. That also becomes an aspect of social justice,
which is the obligation of the State stipulated in Para IV of the
Constitution. The rationale behind Section 7 lies in ensuring
targeted delivery of services, benefits and subsidies which are
funded from the Consolidated Fund of India. In discharge of its
solemn Constitutional obligation to enliven the Fundamental
Rights of life and personal liberty (Article 21) to ensure Justice,
Social, Political and Economic and to eliminate inequality (Article
14) with a view to ameliorate the lot of the poor and the Dalits, the
Central Government has launched several welfare schemes.
Some such schemes are PDS, scholarships, mid day meals, LPG
subsidies, etc. These schemes involve 3% percentage of the
GDP and involve a huge amount of public money. Right to
receive these benefits, from the point of view of those who
deserve the same, has now attained the status of fundamental
right based on the same concept of human dignity, which the
petitioners seek to bank upon. The Constitution does not exist for
a few or minority of the people of India, but “We the people”. The
goals set out in the Preamble of the Constitution do not
Writ Petition (Civil) No. 494 of 2012 connected matters Page 337 of 567
contemplate statism and do not seek to preserve justice, liberty,equality an fraternity for those who have the means and
opportunity to ensure the exercise of inalienable rights for
themselves. These goals are predominantly or at least equally
geared to “secure to all its citizens”, especially, to the
downtrodden, poor and exploited, justice, liberty, equality and “to
promote” fraternity assuring dignity. Interestingly, the State has
come forward in recognising the rights of deprived section of the
society to receive such benefits on the premise that it is their
fundamental right to claim such benefits. It is acknowledged by
the respondents that there is a paradigm shift in addressing the
problem of security and eradicating extreme poverty and hunger.
The shift is from the welfare approach to a right based approach.
As a consequence, right of everyone to adequate food no more
remains based on Directive Principles of State Policy (Art 47),
though the said principles remain a source of inspiration. This
entitlement has turned into a Constitutional fundamental right.
This Constitutional obligation is reinforced by obligations under
International Convention. The Universal Declaration of Human
Rights (Preamble, Article 22 23) and International Covenant on
Economic, Social and Cultural Rights to which India is a
signatory, also casts responsibilities on all State parties to
Writ Petition (Civil) No. 494 of 2012 connected matters Page 338 of 567
recognize the right of everyone to adequate food. Eradicatingextreme poverty and hunger is one of the goals under the
Millennium Development Goals of the United Nations. The
Parliament enacted the National Security Food Act, 2013 to
address the issue of food security at the household level. The
scheme of the Act designs a targeted public distribution system
for providing food grains to those below BPL. The object is to
ensure to the people adequate food at affordable prices so that
people may live a life with dignity. The reforms contemplated
under Section 12 of the Act include, application of information and
communication technology tools with end to end computerization
to ensure transparency and to prevent diversion, and leveraging
Aadhaar for unique biometric identification of entitled
beneficiaries. The Act imposes obligations on the Central
Government, State Government and local authorities vide
Chapter VIII, IX and X. Section 32 contemplates other welfare
schemes. It provides for nutritional standards in Schedule II and
the undertaking of further steps to progressively realize the
objectives specified in Schedule III.
264) At this juncture, we would also like to mention that historic
judgment of this Court in His Holiness Kesavananda Bharati
Writ Petition (Civil) No. 494 of 2012 connected matters Page 339 of 567
Sripadagalvaru v. State of Kerala Anr.89 emphasised on theattainment of socio-economic rights and its interplay with
fundamental rights. Following passages from the opinion
rendered by Khanna, J. need a specific mention:
“1477. I may also refer to another passage on p. 99 of
Grammar of Politics by Harold Laski:“The state, therefore, which seeks to survive must
continually transform itself to the demands of men
who have an equal claim upon that common welfare
which is its ideal purpose to promote.We are concerned here, not with the defence of
anarchy, but with the conditions of its avoidance. Men
must learn to subordinate their self-interest to the
common welfare. The privileges of some must give
way before the rights of all. Indeed, it may be urged
that the interest of the few is in fact the attainment of
those rights, since in no other environment is stability
to be assured.”1478. A modern State has to usher in and deal with large
schemes having social and economic content. It has to
undertake the challenging task of what has been called
social engineering, the essential aim of which is the
eradication of the poverty, uplift of the downtrodden, the
raising of the standards of the vast mass of people and the
narrowing of the gulf between the rich and the poor. As
occasions arise quite often when the individual rights clash
with the larger interests of the society, the State acquires
the power to subordinate the individual rights to the larger
interests of society as a step towards social justice. As
observed by Roscoe Pound on p. 434 of Volume I of
Jurisprudence under the heading “Limitations on the Use of
Property”:“Today the law is imposing social limitations —
limitations regarded as involved in social life. It is
endeavouring to delimit the individual interest better
with respect to social interests and to confine the89 (1973) 4 SCC 225
Writ Petition (Civil) No. 494 of 2012 connected matters Page 340 of 567
legal right or liberty or privilege to the bounds of the
interest so delimited.”To quote the words of Friedmann in Legal Theory:
“But modern democracy looks upon the right to
property as one conditioned by social responsibility
by the needs of society, by the ‘balancing of interests’
which looms so large in modern jurisprudence, and
not as pre-ordained and untouchable private right.”
(Fifth Edition, p. 406).”265) It would also be worthwhile to mark, in continuity with the
aforesaid thought, what Dwivedi, J. emphasised.
“...The Nation stands to-day at the cross-roads of history
and exchanging the time-honoured place of the phrase,
may I say that the Directive Principles of State Policy
should not be permitted to become “a mere rope of
sand”. If the State fails to create conditions in which the
fundamental freedoms could be enjoyed by all, the
freedom of the few will be at the mercy of the many and
then all freedoms will vanish. In order, therefore, to
preserve their freedom, the privileged few must part with
a portion of it.”266) By no stretch of imagination, therefore, it can be said that there is
no defined State aim in legislating Aadhaar Act. We may place
on record that even the petitioners did not seriously question the
purpose bona fides of the legislature in enacting this law. In a
welfare State, where measures are taken to ameliorate the
sufferings of the downtrodden, the aim of the Act is to ensure that
these benefits actually reach the populace for whom they are
meant. This is naturally a legitimate State aim.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 341 of 567
(iii) Whether Aadhaar Act meets the test of proportionality?
267) The concept and contours of doctrine of proportionality have
already been discussed in detail. We have also indicated the
approach that we need to adopt while examining the issue of
proportionality. This discussion bring out that following four sub-
components of proportionality need to be satisfied:
(a) A measure restricting a right must have a legitimate goal
(legitimate goal stage).
(b) It must be a suitable means of furthering this goal (suitability
or rationale connection stage).
(c) There must not be any less restrictive but equally effective
alternative (necessity stage).
(d) The measure must not have a disproportionate impact on
the right holder (balancing stage).
268) We now proceed to examine as to whether these components
meet the required parameters in the instant case.
(a) Legitimate Goal Stage: At this stage, the exercise which
needs to be undertaken is to see that the State has legitimate
goal in restricting the right. It is also to be seen that such a goal
is of sufficient importance justifying overriding a constitutional
right of freedom. Further, it impairs freedom as little as possible.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 342 of 567
269) In our preceding discussion, we have already pointed out above
that Aadhaar Act serves the legitimate state aim. That, in fact,
provides answer to this component as well. Some additions to
the said discussion is as follows:
It is a matter of common knowledge that various welfare
schemes for marginalised section of the society have been
floated by the successive governments from time to time in last
few decades. These include giving ration at reasonable cost
through ration shops (keeping in view Right to Food), according
certain benefits to those who are below poverty line with the
issuance of BPL Cards, LPG connections and LPG cylinders at
minimal costs, old age and other kinds of pensions to deserving
persons, scholarships, employment to unemployed under
Mahatma Gandhi National Rural Employment Guarantee Act,
2005 (MGNREGA) Scheme. There is an emergence of socio-
economic rights, not only in India but in many other countries
world-wide. There is, thus, recognisation of civil and political
rights on the one hand and emergence of socio-economic rights
on the other hand. The boundaries between civil and political
rights review as well as socio-economic rights review are rapidly
crumbling. This rights jurisprudence created in India is a telling
example.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 343 of 567
270) This Court has developed a reputation as both a protector of
Human Rights and an engine of economic and social reforms. In
People’s Union for Civil Liberties (PUCL) v. Union of India90, the
Court’s treatment of Right to Food as a fundamental right has
been seen as victory for India’s impoverished population. The
Court had passed orders enforcing the Government to take steps
to ensure the effective implementation of the Food Distribution
Schemes created by the Famine Code. Series of interim orders
were passed aimed at bringing immediate relief to the drought
affected individuals. The benefits of the schemes were converted
into legal entitlements by orders dated November 28, 2001
passed in the said case. Amongst other things, the Court ordered
government to complete the identification of people who fell into
the groups targeted for food distribution, issue cards to allow
these people to collect the grain and distribute the grain to the
relevant centres. The order also provided for governmental
inspections to ensure fair quality grain. In this and subsequent
orders, the court set the requirements on reporting,
accountability, monitoring, transparency and dissemination of
court orders aimed at ensuring that its orders are followed.
271) The purpose behind these orders was to ensure that the
90 (2001) 5 Scale 303
Writ Petition (Civil) No. 494 of 2012 connected matters Page 344 of 567
deserving beneficiaries of the scheme are correctly identified andare able to receive the benefits under the said scheme, which is
their entitlement. The orders also aimed at ensuring ‘good
governance’ by bringing accountability and transparency in the
distribution system with the pious aim in mind, namely, benefits
actually reached those who are rural, poor and starving.
272) Again, in People’s Union for Civil Liberties (PUCL) case, orders
dated January 20, 2010 were passed by the Division Bench of
this Court directing the Government of Delhi to respond to the
extreme weather conditions ‘by setting up more shelters and
protecting homeless people from the cold’. The assurance was
extracted from the then Additional Solicitor General on behalf of
the Government that affected people would be provided with
shelter as a matter of priority and that arrangement should be
made for this within a day.
273) In the context of Right to Education, this Court in State of Bihar
Ors. v. Project Uchcha Vidya, Sikshak Sangh Ors.91 passed
orders on January 3, 2006 thereby directing that a committee be
appointed to investigate departures from the State of Bihar’s
policy concerning the establishment of ‘Project Schools’ aimed at
improving its poor education record. The Court appointed a
91 Civil Appeal No. 6626-6675 of 2001
Writ Petition (Civil) No. 494 of 2012 connected matters Page 345 of 567
committee to investigate the matter. The Court’s order includeddetails as to the composition and functions of the committee,
guidelines as to what would constitute irregularities in the
implementation of the policy and an expectation that the State of
Bihar would take remedial action if the committee found any
irregularities. The Court’s approach to affirmative action in
education is also instructive.
274) In Ashoka Thakur v. Union of India92, the Court upheld the Ninety-
Third Amendment to the Constitution, which allows for certain
educational institutions to put in place special admissions rules in
order to advance India’s ‘socially or educationally backward
classes of citizens or for the Scheduled Castes or the Scheduled
Tribes’.93 The Court held that people who are wealthier and
better educated (the ‘creamy layer’) should be excluded from the
27 per cent quota for ‘Other Backward Classes’ (OBC). This
step was needed to ensure that benefits reached those people
living in desperate poverty. In addition, the inclusion of particular
groups in the OBC category had to be reviewed every five years.
275) In Paschim Banga Ket Mazdoor Samity v. State of West Bengal94,
the Court found that Article 21 encompasses a right to adequate
92 Writ Petition (Civil) No. 265 of 2006, judgment delivered on April 10, 2008.
93 The challenge made in the case related to ‘Other Backward Classes’ rather than the Scheduled
Castes or Tribes.94 (1996) 4 SCC 37
Writ Petition (Civil) No. 494 of 2012 connected matters Page 346 of 567
medical facilities or health care. It also interpreted otherfundamental rights in light of directive principles. Likewise, in
Mohini Jain v. State of Kerala Ors.95, the Court held that the
right to equality before the law in Article 14 includes a right to
education. In the subsequent case, Unnikrishnan v. State of
Andhra Pradesh96, the Court clarified its findings in Mohini Jain,
stating that Article 14 gave rise to a right to primary education.
Following the cases on education, in 1997 the Indian government
proposed a constitutional Amendment recognising education for
children under 14 as a fundamental right. This Amendment was
passed in 2002 as Article 21A. One of the Court’s earliest cases
dealing with the role of the directive principles in constitutional
interpretation is arguably also its most celebrated judgment.
Some commentators see the decision in Olga Tellis Ors. v.
Bombay Municipal Corporation Ors.97 as a recognition of
enforceable right to shelter.
276) The purpose of citing aforesaid judgments is to highlight that this
Court expanded the scope of Articles 14 and 21 of the
Constitution by recognising various socio-economic rights of the
poor and marginalised section of the society and, in the process,
95 (1992) 3 SCC 666
96 (1993) 1 SCC 645
97 1985 SCR Supl. (2) 51
Writ Petition (Civil) No. 494 of 2012 connected matters Page 347 of 567
transforming the constitutional jurisprudence by putting a positiveobligation on the State to fulfill its duty as per the Charter of
Directive Principles of the State Policy, contained in Part IV of the
Constitution. It is to be kept in mind that while acknowledging
that economic considerations would play a role in determining the
full content of the right to life, the Court also held that right
included the protection of human dignity and all that is attached to
it, ‘namely, the bare necessities of life such as adequate nutrition,
clothing and shelter and facilities for reading, writing and
expressing oneself in diverse forms’ (See Francis Coralie Mullin
v. The Administrator, Union Territory of Delhi Ors. 98). It is, thus,
of some significance to remark that it is this Court which has been
repeatedly insisting that benefits to reach the most deserving and
should not get frittered mid-way. We are of the opinion that
purpose of Aadhaar Act, as captured in the Statement of Objects
and Reasons and sought to be implemented by Section 7 of the
Aadhaar Act, is to achieve the stated objectives. This Court is
convinced by its conscience that the Act is aimed at a proper
purpose, which is of sufficient importance.
(b) Suitability or rationale connection stage:
277) We are also of the opinion that the measures which are
98 (1981) 2 SCR 516
Writ Petition (Civil) No. 494 of 2012 connected matters Page 348 of 567
enumerated and been taken as per the provisions of Section 7read with Section 5 of the Aadhaar Act are rationally connected
with the fulfillment of the objectives contained in the Aadhaar Act.
It may be mentioned that the scheme for enrolling under the
Aadhaar Act and obtaining the Aadhaar number is optional and
voluntary. It is given the nomenclature of unique identity. A
person with Aadhaar number gets an identity. No doubt, there
are many other modes by which a person can be identified.
However, certain categories of persons, particularly those living in
abject poverty and those who are illiterate will not be in a position
to get other modes of identity like Pan Card, Passport etc. That
apart giving unique identity of each resident of the country is a
special feature of this scheme, more so, when it comes with the
feature stated above, namely, no person can have more than one
Aadhaar number; Aadhaar number given to a particular person
cannot be reassigned again to any individual even if that is
cancelled and there is hardly any possibility to have fake identity.
278) As pointed out above, enrolling for Aadhaar is not the serious
concern of the petitioners. It is only the process of authentication
and other related issues which bothers the petitioners which shall
be considered at the appropriate stage. At this point of time, we
are discussing the issue as to whether the limitation on the rights
Writ Petition (Civil) No. 494 of 2012 connected matters Page 349 of 567
of the individuals is rationally connected to the fulfillment of thepurpose contained in the Aadhaar Act. Here, Section 5 talks of
special measures for issuance of Aadhaar number to certain
categories of persons. It gives identity to those persons who
otherwise may not have any such identity. In that manner, it
recognises them as residents of this nation and in that form gives
them their ‘dignity’.
279) Section 7, which provides for necessity of authentication for
receipt of certain subsidies, benefits and services has a definite
purpose and this authentication is to achieve the objectives for
which Aadhaar Act is enacted, namely, to ensure that such
subsidies, benefits and services reach only the intended
beneficiaries. We have seen rampant corruption at various levels
in implementation of benevolent and welfare schemes meant for
different classes of persons. It has resulted in depriving the
actual beneficiaries to receive those subsidies, benefits and
services which get frittered away though on papers, it is shown
that they are received by the persons for whom they are meant.
There have been cases of duplicate and bogus ration cards, BPL
cards, LPG connections etc. Some persons with multiple
identities getting those benefits manifold. Aadhaar scheme has
been successful, to a great extent, in curbing the aforesaid
Writ Petition (Civil) No. 494 of 2012 connected matters Page 350 of 567
malpractices. By providing that the benefits for various welfareschemes shall be given to those who possess Aadhaar number
and after undergoing the authentication as provided in Section 8
of the Aadhaar Act, the purpose is to ensure that only rightful
persons receive these benefits. Non-action is not costly. It’s the
affirmative action which costs the Government. And that money
comes from exchequer. So, it becomes the duty of the
Government to ensure that it goes to deserving persons.
Therefore, second component also stands fulfilled.
(c) Necessity Stage:
280) Insofar as third component is concerned, most of it stands
answered while in the discussion that has ensued in respect of
component No. 1 and 2. The manner in which malpractices have
been committed in the past leaves us to hold that apart from the
system of unique identity in Aadhaar and authentication of the
real beneficiaries, there is no alternative measure with lesser
degree of limitation which can achieve the same purpose. In fact,
on repeated query by this Court, even the petitioners could not
suggest any such method.
(d) Balancing Stage:
281) With this, we now advert to the most important component of
Writ Petition (Civil) No. 494 of 2012 connected matters Page 351 of 567
proportionality i.e. balancing between importance of achieving theproper purpose and the social importance of preventing the
limitation on the constitutional right.
282) Argument of the petitioners is that Aadhaar project creates the
architect of surveillance state and society, which is antithetical to
the principles of democracy. It is premised on the basis that the
Aadhaar project enables the State to profile citizens, track their
movements, assess their habits and silently influence their
behaviour throughout their lives. It may stifle dissent and
influence political decision making. It is also argued that
aggregation, storage and use of such stored information is
violative of fundamental right to privacy, dignity and individual
autonomy. Informational privacy is expected as part of right to
privacy. The Act allows data aggregation as well. Such an Act is
unconstitutional as there is violation of a fundamental rights but
there is absence of procedural safeguards to protect data in the
Act. It is also argued that extent of information collected with the
use of Aadhaar, specially by the methodology of authentication, is
not proportionate to the ‘compelling interest of the State’ and
there are various other methods available for identification. It is,
thus, disproportionate and unreasonable state compulsion.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 352 of 567
283) The respondents, on the other hand, have argued that there
cannot be any reasonable expectation of privacy inasmuch as the
Aadhaar Act operates in the public and relationally sphere and
not in the core, private or personal sphere of the residents.
Moreover, it involves minimal identity information for effective
authentication which stands the test of reasonableness. The Act
is, thus, least intrusive and strict scrutiny test does not apply in
the proportionality test. It is also the case of the respondents that
the Aadhaar Act does not allow aggregation at all and, therefore,
all the apprehension are ill-founded and have no basis. It is also
submitted that the Aadhaar Act is, in fact, the facilitator in
empowering various facets of right to life under Article 21 and
thereby ensures that unprivileged class is also able to live with
human dignity.
284) Before undertaking this exercise of balancing, we would like to
point out that we are not convinced with the argument of the
respondents that there cannot be any reasonable expectation of
privacy. No doubt, the information which is gathered by the
UIDAI (whether biometric or demographic) is parted with by the
individuals to other agencies/body corporates etc. in many other
kinds of transactions as well, as pointed out by the respondents.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 353 of 567
However, the matter is to be looked into from the angle that thisinformation is collected and stored by the State or instrumentality
of the State. Therefore, it becomes important to find out as to
whether it meets the test of proportionality, and satisfies the
condition that the measure must not have disproportionate impact
on the right-holder (balancing stage). However, at the same time,
the fact that such information about individuals is in public domain
may become a relevant factor in undertaking the exercise of
balancing.
285) We have already traced the objectives with which the Aadhaar
Act has been enacted. No doubt, there is a right to privacy, which
is now entrenched in fundamental rights. On the other hand, we
are also concerned with the rights of those persons whose dignity
is sought to be ensured by giving them the facilities which are
necessary to live as dignified life. Therefore, balancing has to be
done at two levels:
(i) Whether, ‘legitimate state interest’ ensures ‘reasonable
tailoring’? There is a minimal intrusion into the privacy and the
law is narrowly framed to achieve the objective. Here the Act is to
be tested on the ground that whether it is found on a balancing
test that the social or public interest and the reasonableness of
the restrictions outweigh the particular aspect of privacy, as
Writ Petition (Civil) No. 494 of 2012 connected matters Page 354 of 567
claimed by the petitioners. This is the test we have applied in theinstant case.
(ii) There needs to be balancing of two competing fundamental
rights, right to privacy on the one hand and right to food, shelter
and employment on the other hand. Axiomatically both the rights
are founded on human dignity. At the same time, in the given
context, two facets are in conflict with each other. The question
here would be, when a person seeks to get the benefits of welfare
schemes to which she is entitled to as a part of right to live life
with dignity, whether her sacrifice to the right to privacy, is so
invasive that it creates imbalance?
286) In a way, both the aforesaid questions have some overlapping
inasmuch as even while finding answer to the second question, it
will have to be determined as to whether there is a least intrusion
into the privacy of a person while ensuring that the individual gets
the benefits under the welfare schemes.
287) The respondents seemed to be right when they argue that all
matters pertaining to an individual do not qualify as being an
inherent part of right to privacy. Only those which concern
matters over which there can be a reasonable expectation of
privacy would be protected by Article 21. In this behalf, we may
Writ Petition (Civil) No. 494 of 2012 connected matters Page 355 of 567
recapitulate the discussion on some significant aspects inPuttaswamy:
Privacy postulates the reservation of a private space,
described as the right to be let alone. The integrity of the body
and the sanctity of the mind can exist on the foundation of the
individual’s ‘right to preserve a private space in which the human
personality can develop’ and this involves the ability to make
choices. In this sense privacy is a postulate of human dignity
itself. The inviolable nature of the human personality is
manifested in the ability to make decisions on matters intimate to
human life. The autonomy of the individual is associated ‘over
matters which can be kept private. These are concerns over
which there is a legitimate expectation of privacy’. Thoughts and
behavioral patterns which are intimate to an individual are entitled
to a zone of privacy where one is free of social expectations. In
that zone of privacy an individual is not judged by others. The
judgment refers to the expert group report and identifies nine
privacy principles pertaining to notice, choice and consent,
collection limitation, purpose limitation, access and correction,
non disclosure of information, security of data, openness or
proportionality as to the scale, scope and sensitivity to the data
collected, and accountability. At the same time, privacy is a
Writ Petition (Civil) No. 494 of 2012 connected matters Page 356 of 567
subset of liberty. All liberties may not be exercised in privacy. Itlies across the spectrum of protected freedoms. Further, the
notion of reasonable expectation of privacy has both subjective
and objective elements. At a subjective level it means ‘an
individual desires to be left alone’. On an objective plain privacy
is defined by those Constitutional values which shape the content
of the protected zone where the individual ‘ought to be left alone’.
Further, the notion of reasonable expectation of privacy ensures
that while on the one hand, the individual has a protected zone of
privacy, yet on the other ‘the exercise of individual choices is
subject the right of others to lead orderly lives’. The extent of the
zone of privacy would, therefore, depend upon both the
subjective expectation and the objective principle which defines a
reasonable expectation.
It is pertinent to point out that while dealing with
informational privacy, the judgment notes that privacy concerns
are seriously an issue in the age of information. It also notes the
data mining processes together with knowledge discovery, and
the age of big data. The court finds that data regulation and
individual privacy raises complex issues requiring delicate
balances to be drawn between the legitimate concerns of the
State and individual interest in the protection of privacy, and in
Writ Petition (Civil) No. 494 of 2012 connected matters Page 357 of 567
this sphere, data protection assumes significance. Data such asmedical information would be a category to which a reasonable
expectation of privacy attaches. There may be other data which
falls outside the reasonable expectation paradigm. Data
protection regimes seek to protect the autonomy of the individual.
This is a complex exercise involving careful balancing. In this
balancing process, following parameters are to be kept in mind:
(i) The judgment also holds that the legitimate expectation of
privacy may vary from the intimate zone to the private zone and
from the private to the public arenas. However, ‘the privacy is not
lost or surrendered merely because the individual is in a public
space’.
(ii) One of the chief concerns is that ‘while the web is a source
of lawful activity – both personal and commercial, concerns of
National security intervene since the seamless structure of the
web can be exploited by terrorist to wreak havoc and destruction
on civilized societies.’ Noting an article of Richard A. Posner,
which says ‘privacy is the terrorist’s best friend..’ It is observed
that this formulation indicates that State has legitimate interest
when it monitors the web to secure the Nation.
(iii) Apart from National security, State may have justifiable
reasons for the collection and storage of data as where it
Writ Petition (Civil) No. 494 of 2012 connected matters Page 358 of 567
embarks upon programs to provide benefits to impoverished andmarginalized sections of society and for ensuring that scarce
public resources are not dissipated and diverted to non-eligible
recipients. Digital platforms are a vital tool of ensuring good
governance in a social welfare State and technology is a powerful
enabler.
288) In the first instance, therefore, it is to be seen as to whether the
petitioners claim on the information supplied while authentication
to be protected is based on reasonable expectation.
289) ‘Reasonable Expectation’ involves two aspects. First, the
individual or individuals claiming a right to privacy must establish
that their claim involves a concern about some harm likely to be
inflicted upon them on account of the alleged act. This concern
‘should be real and not imaginary or speculative’. Secondly, ‘the
concern should not be flimsy or trivial’. It should be a reasonable
concern. It has to be borne in mind that the concept of
‘reasonable expectation’ has its genesis in the US case laws. UK
judgments adopted the test of reasonable expectation from the
US jurisprudence. The ECHR and ECJ judgments reveal a little
divergence with regard to right of privacy. The ECHR in general
adopts the approach that ‘a person’s reasonable expectation as
Writ Petition (Civil) No. 494 of 2012 connected matters Page 359 of 567
to privacy may be significant, although, not necessarilyconclusive factor’. This perhaps explains the apparent conflict as
regards finger prints.
290) In the leading case Katz v. US99 Reasonable Expectation was
stated to embrace two distinct questions. The first was whether
the individual, by his conduct has exhibited an actual (subjective
expectation of privacy), and the second, whether the subjective
expectation is one that the society is prepared to recognize as
reasonable. This was also followed in Smith v. Marlyand100.
291) In the judgment of Court of Appeal in R. Wood v.
Commissioner101, the appellant complained against taking and
retention of his photograph in Central London in the context of a
meeting by the police force to enable identification at a later time
in the event of eruption of disorder and commission of offence.
The concept of reasonable expectation was examined after
surveying a series of judgments which sought to consider
violation of Article 8 of the ECHR. The following pertinent
aspects emerge:
(i) Whether information related to private or public matter?
(ii) Whether the material obtained was envisaged for a limited
99 389 U.S. 347
100442 US 735
101(2010) 1 WLR 123
Writ Petition (Civil) No. 494 of 2012 connected matters Page 360 of 567
use or was likely to be made available to general public?(iii) Private life was a broad term covering physical and
psychological integrity of a person.
(iv) Storing of data relating to private life of an individual
interferes with Article 8. However, in determining whether
information retained involves any private life aspect would have to
be determined with due regard to the specific context.
(v) Article 8, however protean, should not be so construed
widely that its claims become unreal and unreasonable. Firstly,
the threat to individuals personal autonomy must attain a certain
level of seriousness. Secondly, the claimant must enjoy on the
facts a reasonable expectation of privacy. Thirdly, the breadth of
Article 8(1) may in many instances be greatly curtailed by scope
of justifications available to the State.
(vi) Reasonable expectation of privacy is a broad concept which
takes into account all the circumstances of the case. They
include attributes of the claimants, the nature of the activity in
which the claimant was engaged, the place at which it was
happening, the nature and purpose of the intrusion, the absence
(or presence) of consent, the effect on the claimant and the
purpose for which information is taken.
292) Therefore, when a claim of privacy seeks inclusion in Article 21 of
Writ Petition (Civil) No. 494 of 2012 connected matters Page 361 of 567
the Constitution of India, the Court needs to apply the reasonableexpectation of privacy test. It should, inter alia, see:
(i) What is the context in which a privacy claim is set up?
(ii) Does the claim relate to private or family life, or a
confidential relationship?
(iii) Is the claim a serious one or is it trivial?
(iv) Is the disclosure likely to result in any serious or significant
injury and the nature and extent of disclosure?
(v) Is disclosure relates to personal and sensitive information of
an identified person?
(vi) Does disclosure relate to information already disclosed
publicly? If so, its implication?
293) Under the Aadhaar Act Architecture, four types of information is to
be given at the time of enrolment:
(i) Mandatory demographic information comprising name, date
of birth, address and gender (Section 2(k) read with Regulation
4(1) of the Aadhaar (Enrolment and Update) Regulations, 2016).
(ii) Optional demographic information (Section 2(k) read with
Regulation 4(2) of the Aadhaar (Enrolment and Update)
Regulations, 2016).
(iii) Non core biometric information comprising photograph.
(iv) Core biometric information comprising finger print and iris
Writ Petition (Civil) No. 494 of 2012 connected matters Page 362 of 567
scan.294) Insofar as demographic information is concerned, it is required by
the provisions of many other enactments as well like Companies
Act, Special Marriage Act, Central Motor Vehicle Rules,
Registration of Electoral Rules, The Citizenship Rules, The
Passport Act and even Supreme Court Rules.
295) As regards core biometric information which comprises finger
prints, iris scan, for the purpose of enrolling in Aadhaar scheme,
we have already held earlier that it is minimal information
required for enrolment. This information becomes essential for
authentication use in a public sphere and in relational context.
296) It may also be mentioned that with the advent of science and
technology, finger print and iris scan have been considered to be
the most accurate and non invasive mode of identifying an
individual. It is for this reason that these are taken also for driving
licenses, passports, visa as well as at the time of registration of
documents by the State. These are also used in mobile phones,
laptops, lockers etc. for private use. International Civil Aviation
Organisation (ICAO) has recommended use of biometric
passports. Many civilized countries with robust democratic
Writ Petition (Civil) No. 494 of 2012 connected matters Page 363 of 567
regime have also introduced biometric based identity cards.Therefore, collection of information in the four different categories
mentioned above may not be unreasonable. However, as stated
earlier as well, the issue is not of taking the aforesaid information
for the purpose of enrolling in Aadhaar and for authentication. It
is the storage and retention of this data, whenever authentication
takes place, about which the concerns are raised by the
petitioners. The fears expressed by the petitioners are that with
the storage and retention of such data, profile of the persons can
be created which is susceptible to misuse.
297) This aspect has already been dealt with earlier and apprehension
of the petitioners are taken care of. To recapitulate, at the time of
enrolment, the data collected is minimal and there is no data
collection in respect of religion, caste, tribe, language of records
of entitlement income or medical history of the applicant at the
time of Aadhaar enrolment. Full care is taken that even the
minimal data collected at the time of enrolment does not remain
with the enrolment agency and immediately gets transmitted to
CIDR. Even at the time of authentication, the only exercise which
is undertaken by the Authority is to see that the finger prints
and/or iris scan of the concerned person sent for authentication
Writ Petition (Civil) No. 494 of 2012 connected matters Page 364 of 567
match with the one which is in the system of Authority.298) Let us advert to the second facet of balancing, namely, balancing
of two fundamental rights. As already pointed out above, the
Aadhaar Act truly seeks to secure to the poor and deprived
persons an opportunity to live their life and exercise their liberty.
By ensuring targeted delivery through digital identification, it not
only provides them a nationally recognized identity but also
attempts to ensure the delivery of benefits, service and subsidies
with the aid of public exchequer/Consolidated Fund of India.
National Security Food Act, 2013 passed by the Parliament seeks
to address the issue of food, security at the household level. The
scheme of that Act is aimed at providing food grains to those
belonging to BPL categories. Like the MGNREGA Act, 2005
takes care of employment. The MGNREGA Act has been
enacted for the enhancement, livelihood, security of the
households in rural areas of the country. It guarantees at least
100 days of wage employment in every financial year to at least
one able member of every household in the rural area on assets
creating public work programme. Sections 3 and 4 of the
MGNREGA Act contain this guarantee. The minimum facilities to
be provided are set out by Section 5 read with Schedule II.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 365 of 567
Section 22 provides for funding pattern and Section 23 providesfor transparency and accountability. This Act is another instance
of a rights based approach and it enlivens the Fundamental Right
to life and personal liberty of Below Poverty Line people in rural
areas.
299) We may mention here that Mr. Dwivedi had pointed out not only
India but several other countries including western nations which
have read socio-economic rights into human dignity and right to
life. Hungary and South Africa have gone to the extent of making
express provisions in their Constitutions.
The Federal Constitution Court of Germany in a decision
dated February 09, 2010 while deciding the question whether the
amount of standard benefit aid is compatible with the Basic Law
held that:
“The Fundamental Right to the guarantee of a subsistence
minimum is in line with human dignity emerges from Article
1.1 of the Basic Law in conjunction with Article 20.1 of the
Basic Law… Article 1.1 of the Basic Law established this
claim. The principle of the social welfare State contained in
Article 20.1 of the Basic Law, in turn grants to the
Legislature the mandate to ensure a subsistence minimum
for all that is in line with human dignity”.It is further held that:
“if a person does not have the material means to guarantee
an existence that is in line with human dignity because he
or she is unable to obtain it either out of his or her gainful
employment, or from own property or by benefits from third
parties, the State is obliged within its mandate to protect
Writ Petition (Civil) No. 494 of 2012 connected matters Page 366 of 567
human dignity and to ensure, in the implementation of its
social welfare state mandate, that the material
prerequisites for this are at the disposal of the person in
need of assistance.”Similarly, in a latter judgment dated July 18, 2012 while
deciding whether the amount of the cash benefit provided for in
the Asylum Seekers Benefits Act was constitutional it reiterated
that:
“the direct constitutional benefit claim to the guarantee of a
dignified minimum existence does only cover those means
that are absolutely necessary to maintain a dignified life. It
guarantees the entire minimum existence as a
comprehensive fundamental rights guarantee, that
encompasses both humans’ physical existence, that is
food, clothing, household items, housing, heating, hygiene,
and health, and guarantees the possibility maintain
interpersonal relationships and a minimal degree of
participation in social, cultural and political life, since a
human as a person necessarily exists in a social context..”300) The Constitutional Court of South Africa in Government of the
Republic of South Africa Ors. v. Grootboom102 held that:
“...these rights need to be considered in the context of the
socio-economic rights enshrined in the Constitution. They
entrench the right to access to land, to adequate housing
and to health care, food, water and social security..”301) In 1995, Hungary’s Constitutional Court ruled that the right to
social security as contained in Article 70/E of the Constitution
obligated the State to secure a minimum livelihood through all of
the welfare benefits necessary for the realization of the right to
102(2000) ZACC 19
Writ Petition (Civil) No. 494 of 2012 connected matters Page 367 of 567
human dignity.302) Even in Italy, the Courts have emphasized on the right to social
security.
303) In Budina v. Russia103, the European Court of Human Rights has
recognized, in principle, that inadequate benefits could fall under
Article 3 of the European Convention on Human Rights (ECHR)
on the right to be free from inhuman and degrading treatment.
304) In 1996, the Swiss Federal Court ruled that three Czechs illegally
residing in Switzerland are entitled to social benefit in order to
have a minimal level of subsistence for a life in dignity to prevent
a situation where people “are reduced to beggars, a condition
unworthy of being called human. It held:
“...The federal constitution does not (though the 1995 draft
new constitution is now different) explicitly provide for a
fundamental right to a subsistence guarantee. One can
however also derive unwritten constitutional right from it. A
guarantee of freedoms not mentioned in the constitution by
unwritten constitutional law was assumed by the exercise
of other freedoms (mentioned in the constitution), or
otherwise evidently indispensable components of the
democratic constitutional order of the Federation...”“...The guaranteeing of elementary human needs like food,
clothing and shelter is the condition for human existence
and development as such. It is at the same time an
indispensable component of a constitutional, democratic
polity.”103 App. No. 45603/05 decided on 18.06.2009
Writ Petition (Civil) No. 494 of 2012 connected matters Page 368 of 567305) Nelson Mandela in his speech at Trafalgar Square in London in
2005 said:
“...Massive poverty and obscene inequality are such
terrible scourges of our times – times in which the world
boasts breathtaking advances in science, technology,
industry and wealth accumulation – that they have to rank
alongside slavery and apartheid as social evils...And
overcoming poverty is not a gesture of charity. It is an act
of justice. It is the protection of a fundamental human right,
the right to dignity and a decent life. While poverty
persists, there is no true freedom.”306) Following passages by James Griffin in his book on “Human
Rights” are worth noting :
“10.1 THE HISTORICAL GROWTH OF RIGHTS:
Contrary to widespread belief, welfare rights are not a
twentieth-century innovation, but are among the first
human rights ever to be claimed. When in the twelfth and
thirteenth centuries our modern conception of a right first
appeared, one of the earliest examples offered was the
right of those in dire need to receive aid from those in
surplus. This right was used to articulate the attractive
view of property prevalent in the medieval Church. God
has given all things to us in common, but as goods will not
be cared for and usefully developed unless assigned to
particular individuals, we creatures have instituted systems
of property. In these systems, however, an owner is no
more than a custodian. We all thus have a right, if we
should fall into great need, to receive necessary goods or,
failing that, to take them from those in surplus.One finds, every occasionally, what seem to be human
rights to welfare asserted in the Enlightenment, for
example, by John Locke, Tom Paine, and William Cobbett.Following the Enlightenment, right to welfare have often
appeared in national constitutions; for example, the French
constitutions of the 1790s, the Prussian Civil Code (1794),
the Constitutions of Sweden (1809), Norway (1814), The
Netherlands (1814), Denmark (1849), and, skipping to the
twentieth century, the Soviet Union (1936)-though it is not
Writ Petition (Civil) No. 494 of 2012 connected matters Page 369 of 567
always clear that the drafters of these various documents
thought of these fundamental civil rights as also human
rights. By the end of the nineteenth century, political
theorists were beginning to make a case that welfare rights
are basic in much the sense that Civil and political rights
are. But it was Franklin Roosevelt who did most to bring
welfare rights into public life. The Atlantic Charter (1941),
signed by Roosevelt and Churchill but in this respect
primarily Roosevelt’s initiative, declared that in addition to
the classical civil and political freedoms here were also
freedoms from want and fear. In his State of the Union
message of 1944, Roosevelt averred :We have come to a clear realization of the fact that true
individual freedom cannot exist without economic security
and independence. ‘Necessitous men are not free men’…In our day these economic truths have become accepted
as self evident. We have accepted, so to speak, a second
Bill of Rights…
Among these are : The right to a useful and remunerative
job…. The right to earn enough to provide adequate food
and clothing and recreation…
The United Nations committee charged with drafting the
Universal Declaration of Human Rights (1948), chaired by
Eleanor Roosevelt, included most of the now standard
welfare rights; rights to social security, to work, to rest and
leisure, to medical care, to education, and ‘to enjoy the arts
and to share in scientific advancements and its benefits’.
The Universal Declaration is a good example of how
extensive-some would say lavish-proposed welfare rights
have become....If human rights are protections of a form of life that is
autonomous and free, they should protect life as well as
that form of it. But if they protect life, must they not also
ensure the wherewithal to keep body and soul together-
that is, some minimum material provision? And as mere
subsistence-that is, keeping body and soul together-is too
meager to ensure normative agency, must not human
rights guarantee also whatever leisure and education and
access to the thought of others that are also necessary to
being a normative agent?That is the heart of the case. It appeals to our picture of
human agency and argues that both life and certain
supporting goods are integral to it. Life and certain
Writ Petition (Civil) No. 494 of 2012 connected matters Page 370 of 567
supporting goods are necessary conditions of being
autonomous and free. Many philosophers employ this
necessary – condition argument to establish a human right
to welfare-or, at least, to establish the right’s being as basic
as any other rights.I too want to invoke the necessary-conditions arguments; I
should only want to strengthen it. It is now common to say
that liberty rights and welfare rights are ‘indivisible’. But
that, also, is too weak. It asserts that one cannot enjoy the
benefits of liberty rights without enjoying the benefits of
welfare rights, and vice versa. But something stronger still
may be said. There are forms of welfare that are
empirically necessary conditions of a person’s being
autonomous and free, but there are also forms that are
logically necessary-part of what we mean in saying that a
person has these rights. The value in which human rights
are grounded is the value attaching to normative agency.
The norm arising from this value, of course, prohibits
persons from attacking another’s autonomy and liberty.
But it prohibits more. The value concerned is being a
normative agent, a self-creator, made in god’s image….
The value resides not simply in one’s having the
undeveloped, unused capacities for autonomy and liberty
but also in exercising them-not just in being able to be
autonomous but also in actually being so. The norm
associated with this more complex value would address
other ways of failing to be an agent. It would require
protecting another person from losing agency, at least if
one can do this without great cost to oneself; it would
require helping to restore another’s agency if it has already
been lost, say through giving mobility to the crippled or
guidance to the blind, again with the same proviso. All of
this is involved simply in having a right to autonomy or to
liberty. Welfare claims are already part of the content of
these rights. What, then, should we think of the common
division of basic rights into ‘classical’ liberty rights and
welfare rights? Into which of these two classes does the
right to autonomy or to liberty go? Into which of the two
classes do the difficult, apparently borderline cases go,
such as rights to life, to property, to the pursuit of
happiness, to security of person, and to privacy? The
sensible response would be to drop the distinction. What is
more, a right to welfare is a human right.36. Amartya Sen in his book “Development as Freedom”
says:Writ Petition (Civil) No. 494 of 2012 connected matters Page 371 of 567
Development requires the removal of major sources
of unfreedom: poverty as well as tyranny, poor economic
opportunities as well as systematic social deprivation,
neglect of public facilities as well as intolerance or
overactivity of repressive states. Despite unprecedented
increases in overall opulence, the contemporary world
denies elementary freedoms to vast numbers-perhaps
even the majority-of people. Sometimes the lack of
substantive freedoms relates directly to economic poverty,
which robs people of the freedom to satisfy hunger, or to
achieve sufficient nutrition, or to obtain remedies for
treatable illnesses, or the opportunity to be adequately
clothed or sheltered, or to enjoy clean water or sanitary
facilities. In other cases, the unfreedom links closely to the
lack of public facilities and social care, such as the
absence of epidemiological programs, or of organized
arrangements for health care or educational facilities, or of
effective institutions for the maintenance of local peace and
order. In still other cases, the violation of freedom results
directly from a denial of political and civil liberties by
authoritarian regimes and from imposed restrictions on the
freedom to participate in the social, political and economic
life of the community.”307) In the aforesaid backdrop, this Court is called upon to find out
whether Aadhaar Act strikes a fair balance between the two
rights. In this context, we have to examine the importance of
achieving the proper purpose and the social importance of
preventing the limitation on the constitutional rights. Insofar as
importance of achieving the proper purpose is concerned, that
has already been highlighted above. To reiterate some of the
important features, it is to be borne in mind that the State is using
Aadhaar as an enabler for providing deserving section of the
society their right to food, right to livelihood, right to receive
Writ Petition (Civil) No. 494 of 2012 connected matters Page 372 of 567
pension and other social assistance benefits like scholarshipsetc. thereby bringing their right to life to fruition. This necessity of
Aadhaar has arisen in order to ensure that such benefits are
given to only genuine beneficiaries. The Act aims at efficient,
transparent and targeted delivery of subsidies, benefits and
services. In the process, it wants to achieve the objective of
checking the corrupt practices at various levels of distribution
system which deprive genuine persons from receiving these
benefits. There have been reports relating to leakages in PDS as
well as in fuel subsidies and also in working of MGNREGA
scheme. Mr. Venugopal, learned Attorney General has given the
following details about these reports:
(I) Reports relating to leakages in PDS
Several studies initiated by the Government as well
as the World Bank and Planning Commission revealed that
food grains did not reach the intended beneficiaries and
that there was large scale leakages due to the failure to
establish identity:(a) The Comptroller and Auditor General of India in its
Audit Report No. 3 of 2000 in its overview for the Audit
Report observed that the Public Distribution Scheme
suffered from serious targeting problems. 1.93 Crore
bogus ration cards were found to be in circulation in 13
States and a significant portion of the subsidized food-
grains and other essential commodities did not reach the
beneficiaries due to their diversion in the open market.(b) A Report titled “Budget Briefs: Targeted Public
Distribution System (TPDS), GOI 2011-2012” prepared by
Avani Kapur and Anirvan Chowdhury and published by the
Accountability Initiative observed that there were large
Writ Petition (Civil) No. 494 of 2012 connected matters Page 373 of 567
number of fake ration cards which were causing
inefficiencies in targeting. Between July 2006 and July
2010, in Bihar, Madhya Pradesh, Uttar Pradesh and
Orissa, total of 37 lakh ineligible/fake ration cards for
households have been eliminated. Additionally, in
Maharashtra and Madhya Pradesh, 29 lakh and 25 lakh
ineligible ration cards were discovered and cancelled.(c) World Bank published a Discussion Paper No. 380
titled “India’s Public Distribution System: A National and
International Perspective” dated November, 1997 co-
authored by R. Radhakrishna and K. Subbarao, in which it
was found that in the year in 1986-87 for every one rupee
(Re. 1) transferred under the PDS, the expenditure
incurred by the central government was Rs. 4.27.(d) The Planning Commission of India in its
Performance Evaluation Report titled “Performance
Evaluation Report of Targeted Public Distribution System
(TPDS)” dated March, 2005 found as follows:(i) State-wise figure of excess Ration Cards in various
states and the existence of over 1.52 Crore excess Ration
Cards issued.(ii) Existence of fictitious households and identification
errors leading to exclusion of genuine beneficiaries.(iii) Leakage through ghost BPL Ration Cards found to
be prevalent in almost all the states under study.(iv) The Leakage of food grains through ghost cards has
been tabulated and the percentage of such leakage on an
All India basis has been estimated at 16.67%.(v) It is concluded that a large part of the subsidized
food-grains were not reaching the target group.(II) Report relating to Fuel subsidies
13. With respect of Kerosene subsidies:
(a) A Report titled “Budgetary Subsidies in India –
Subsidizing Social and Economic Services” prepared by
the National Institute of Public Finance and Policy dated
March, found that the key to lowering volume of subsidies
was better targeting without which, there was significant
Writ Petition (Civil) No. 494 of 2012 connected matters Page 374 of 567
leakage to unintended beneficiaries, with only 70% of the
kerosene reaching the poorer section of society.(b) The Economic Survey 2014-15 at Chapter 3 titled
“Wiping Every Tear from every Eye: The JAM Number
Trinity Solution” dated February, 2015 noted that only 59
percent of subsidized kerosene allocated via the PDS is
actually consumed by households, with the remainder lost
to leakage and only 46 percent of total consumption is by
poor households.14. With respect to the MGNREGA Scheme the following
reports have found large scale leakages in the scheme:(a) Report prepared by the V.V. Giri National Labour
Institute and sponsored by the Department of Rural
Development, Ministry of Rural Development, Government
of India as “The study of Schedule of Rates for National
Rural Employment Guarantee Scheme” observes that
there was great fraud in making fake job cards and it was
found that in many cases, it was found that workers
performed one day’s job, but their attendance was put for
33 days. The workers got money for one day while wages
for 32 days were misappropriated by the people associated
with the functioning of NREGS.(b) The National Institute of Public Finance and Policy’s
report titled as “A Cost-benefit analysis of Aadhaar” dated
09.11.2012 estimated that a leakage of approximately 12
percent is being caused to the government on account of
ghost workers and manipulated muster rolls and assumed
that 5 percent of the leakages can be plugged through
wage disbursement using Aadhaar-enabled bank accounts
and 7 percent through automation of muster rolls.(III) It was also pointed out that the Thirteenth Finance
Commission Report for 2010-2015 dated December, 2009
at page 218 in “Chapter 12 – Grants in Aid” states that the
creation of a biometric-based unique identity for all
residents in the country has the potential to address need
of the government to ensure that only eligible persons are
provided subsidies and benefits and that all eligible
persons are covered.The relevant findings of the above Report are as
follows:Writ Petition (Civil) No. 494 of 2012 connected matters Page 375 of 567
(i) Government of India’s expenditure on subsidies is
expected to be about Rs.1,11,000 Crore in 2009-10, or
nearly 18 per cent of the non-plan revenue expenditure.(ii) The data base of eligible persons presently
maintained has both Type I (exclusion) and Type II
(inclusion) errors. The first error arises from the difficulty
faced by the poor in establishing their identity in order to be
eligible for government subsidies and social safety net
programmes. The second error arises because of the
inability to cross-verify lists of eligible persons across
district-level and state-level data bases to eliminate
duplicate and ghost entries. We need to ensure that only
eligible persons are provided subsidies and benefits and
that all eligible persons are covered.(iii) Creation of a biometric-based unique identity for all
residents in the country has the potential to address both
these dimensions simultaneously. It will provide the basis
for focusing subsidies to target groups. Possession of
such an identity will also enable the poor and
underprivileged to leverage other resources like bank
accounts, cell phones, which can empower them and
catalyse their income growth. These benefits cannot be
accessed by them presently due to their inability to provide
acceptable identification. The initiative to provide unique
IDs has the potential to significantly improve the
governance and delivery framework of public services
while substantially reducing transaction costs, leakages
and frauds.308) As against the above larger public interest, the invasion into the
privacy rights of these beneficiaries is minimal. By no means it
can be said that it has disproportionate effect on the right holder.
309) Intensity of review depends upon the particular context of
question in a given case. There is yet another significant angle in
these matters, which has to be emphasised at this stage viz.
dignity in the form of autonomy (informational privacy) and dignity
Writ Petition (Civil) No. 494 of 2012 connected matters Page 376 of 567
in the form of assuring better living standards, of the sameindividual. In the instant case, a holistic view of the matter,
having regard to the detailed discussion hereinabove, would
amply demonstrate that enrolment in Aadhaar of the unprivileged
and marginalised section of the society, in order to avail the fruits
of welfare schemes of the Government, actually amounts to
empowering these persons. On the one hand, it gives such
individuals their unique identity and, on the other hand, it also
enables such individuals to avail the fruits of welfare schemes of
the Government which are floated as socio-economic welfare
measures to uplift such classes. In that sense, the scheme
ensures dignity to such individuals. This facet of dignity cannot
be lost sight of and needs to be acknowledged. We are, by no
means, accepting that when dignity in the form of economic
welfare is given, the State is entitled to rob that person of his
liberty. That can never be allowed. We are concerned with the
balancing of the two facets of dignity. Here we find that the
inroads into the privacy rights where these individuals are made
to part with their biometric information, is minimal. It is coupled
with the fact that there is no data collection on the movements of
such individuals, when they avail benefits under Section 7 of the
Act thereby ruling out the possibility of creating their profiles. In
Writ Petition (Civil) No. 494 of 2012 connected matters Page 377 of 567
fact, this technology becomes a vital tool of ensuring goodgovernance in a social welfare state. We, therefore, are of the
opinion that the Aadhaar Act meets the test of balancing as well.
310) We may profitably refer to the judgment of this Court in People’s
Union for Civil Liberties (PUCL) Anr. v. Union of India Anr.104
which dealt with the issue of right to privacy vis-a-vis in public
interest and leaned in favour of public interest which can be seen
from the following discussion:
“121. It has been contended with much force that the right
to information made available to the voters/citizens by
judicial interpretation has to be balanced with the right of
privacy of the spouse of the contesting candidate and any
insistence on the disclosure of assets and liabilities of the
spouse invades his/her right to privacy which is implied in
Article 21. After giving anxious consideration to this
argument, I am unable to uphold the same. In this context,
I would like to recall the apt words of Mathew, J., in Gobind
v. State of M.P. [1969 UJ (SC) 616] While analysing the
right to privacy as an ingredient of Article 21, it was
observed: (SCC p. 155, para 22)“22. There can be no doubt that privacy-dignity claims
deserve to be examined with care and to be denied
only when an important countervailing interest is
shown to be superior.”
(emphasis supplied)It was then said succinctly: (SCC pp. 155-56, para
22)
“If the court does find that a claimed right is entitled to
protection as a fundamental privacy right, a law
infringing it must satisfy the compelling State-interest
test. Then the question would be whether a State104(2003) 4 SCC 399
Writ Petition (Civil) No. 494 of 2012 connected matters Page 378 of 567
interest is of such paramount importance as would
justify an infringement of the right.”It was further explained: (SCC p. 156, para 23)
“[P]rivacy primarily concerns the individual. It
therefore relates to and overlaps with the concept of
liberty. The most serious advocate of privacy must
confess that there are serious problems of defining
the essence and scope of the right. Privacy interest in
autonomy must also be placed in the context of other
rights and values.”By calling upon the contesting candidate to disclose
the assets and liabilities of his/her spouse, the
fundamental right to information of a voter/citizen is
thereby promoted. When there is a competition
between the right to privacy of an individual and the
right to information of the citizens, the former right
has to be subordinated to the latter right as it serves
the larger public interest. The right to know about the
candidate who intends to become a public figure and
a representative of the people would not be effective
and real if only truncated information of the assets
and liabilities is given. It cannot be denied that the
family relationship and social order in our country is
such that the husband and wife look to the properties
held by them as belonging to the family for all
practical purposes, though in the eye of law the
properties may distinctly belong to each of them. By
and large, there exists a sort of unity of interest in the
properties held by spouses. The property being kept
in the name of the spouse benami is not unknown in
our country. In this situation, it could be said that a
countervailing or paramount interest is involved in
requiring a candidate who chooses to subject
himself/herself to public gaze and scrutiny to furnish
the details of assets and liabilities of the spouse as
well. That is one way of looking at the problem. More
important, it is to be noted that Parliament itself
accepted in principle that not only the assets of the
elected candidates but also his or her spouse and
dependent children should be disclosed to the
constitutional authority and the right of privacy should
not come in the way of such disclosure;...”Writ Petition (Civil) No. 494 of 2012 connected matters Page 379 of 567
311) In Vernonia School District 47J v. Acton et ux., Guardians Ad
Litem for Acton105, the Supreme Court of United States, while
repelling the Fourth Amendment challenge wherein the petitioner
had adopted a Drug Policy which authorised random urinalysis
drug testing of students participating in athletics programs,
remarked as under:
“Taking into account all the factors we have considered
above- the decreased expectation of privacy, the relative
unobtrusiveness of the search, and the severity of the need
met by the search-we conclude Vernonia’s Policy is
reasonable and hence constitutional.”312) This very exercise of balancing of two fundamental rights was
also carried out in Subramanian Swamy v. Union of India,
Ministry of Law Ors.106 where the Court dealt with the matter in
the following manner:
“122. In State of Madras v. V.G. Row [State of Madras v.
V.G. Row, AIR 1952 SC 196 : 1952 Cri LJ 966], the Court
has ruled that the test of reasonableness, wherever
prescribed, should be applied to each individual statute
impugned and no abstract standard, or general pattern of
reasonableness can be laid down as applicable to all
cases. The nature of the right alleged to have been
infringed, the underlying purpose of the restrictions
imposed, the extent and urgency of the evil sought to be
remedied thereby, the disproportion of the imposition, the
prevailing conditions at the time, should all enter into the
judicial verdict.xx xx xx105515 US 646 (1995)
106(2016) 7 SCC 221
Writ Petition (Civil) No. 494 of 2012 connected matters Page 380 of 567130. The principles as regards reasonable restriction as
has been stated by this Court from time to time are that the
restriction should not be excessive and in public interest.
The legislation should not invade the rights and should not
smack of arbitrariness. The test of reasonableness cannot
be determined by laying down any abstract standard or
general pattern. It would depend upon the nature of the
right which has been infringed or sought to be infringed.
The ultimate “impact”, that is, effect on the right has to be
determined. The “impact doctrine” or the principle of
“inevitable effect” or “inevitable consequence” stands in
contradistinction to abuse or misuse of a legislation or a
statutory provision depending upon the circumstances of
the case. The prevailing conditions of the time and the
principles of proportionality of restraint are to be kept in
mind by the court while adjudging the constitutionality of a
provision regard being had to the nature of the right. The
nature of social control which includes public interest has a
role. The conception of social interest has to be borne in
mind while considering reasonableness of the restriction
imposed on a right. The social interest principle would
include the felt needs of the society.xx xx xx
Balancing of fundamental rights
136. To appreciate what we have posed hereinabove, it is
necessary to dwell upon balancing the fundamental rights.
It has been argued by the learned counsel for the
petitioners that the right conferred under Article 19(1)(a)
has to be kept at a different pedestal than the individual
reputation which has been recognised as an aspect of
Article 21 of the Constitution. In fact the submission is that
right to freedom of speech and expression which includes
freedom of press should be given higher status and the
individual's right to have his/her reputation should yield to
the said right. In this regard a passage from Sakal Papers
(P) Ltd. [Sakal Papers (P) Ltd. v. Union of India, (1962) 3
SCR 842 : AIR 1962 SC 305] has been commended to us.It says: (AIR pp. 313-14, para 36)
“36. … Freedom of speech can be restricted only in
the interests of the security of the State, friendly
relations with foreign State, public order, decency or
morality or in relation to contempt of court,
defamation or incitement to an offence. It cannot, like
Writ Petition (Civil) No. 494 of 2012 connected matters Page 381 of 567
the freedom to carry on business, be curtailed in the
interest of the general public. If a law directly affecting
it is challenged, it is no answer that the restrictions
enacted by it are justifiable under clauses (3) to (6).
For, the scheme of Article 19 is to enumerate different
freedoms separately and then to specify the extent of
restrictions to which they may be subjected and the
objects for securing which this could be done. A
citizen is entitled to enjoy each and every one of the
freedoms together and clause (1) does not prefer one
freedom to another. That is the plain meaning of this
clause. It follows from this that the State cannot make
a law which directly restricts one freedom even for
securing the better enjoyment of another freedom.”
(emphasis supplied)137. Having bestowed our anxious consideration on the
said passage, we are disposed to think that the above
passage is of no assistance to the petitioners, for the issue
herein is sustenance and balancing of the separate rights,
one under Article 19(1)(a) and the other, under Article 21.
Hence, the concept of equipoise and counterweighing
fundamental rights of one with other person. It is not a case
of mere better enjoyment of another freedom. In Acharya
Maharajshri Narendra Prasadji Anandprasadji Maharaj v.
State of Gujarat [Acharya Maharajshri Narendra Prasadji
Anandprasadji Maharaj v. State of Gujarat, (1975) 1 SCC
11], it has been observed that a particular fundamental
right cannot exist in isolation in a watertight compartment.One fundamental right of a person may have to coexist in
harmony with the exercise of another fundamental right by
others and also with reasonable and valid exercise of
power by the State in the light of the directive principles in
the interests of social welfare as a whole. The Court's duty
is to strike a balance between competing claims of different
interests…xx xx xx
194. Needless to emphasise that when a law limits a
constitutional right which many laws do, such limitation is
constitutional if it is proportional. The law imposing
restriction is proportional if it is meant to achieve a proper
purpose, and if the measures taken to achieve such a
purpose are rationally connected to the purpose, and such
measures are necessary. Such limitations should not be
arbitrary or of an excessive nature beyond what is required
Writ Petition (Civil) No. 494 of 2012 connected matters Page 382 of 567
in the interest of the public. Reasonableness is judged with
reference to the objective which the legislation seeks to
achieve, and must not be in excess of that objective (see
P.P. Enterprises v. Union of India [P.P. Enterprises v. Union
of India, (1982) 2 SCC 33 : 1982 SCC (Cri) 341]). Further,
the reasonableness is examined in an objective manner
from the standpoint of the interest of the general public and
not from the point of view of the person upon whom the
restrictions are imposed or abstract considerations (see
Mohd. Hanif Quareshi v. State of Bihar [Mohd. Hanif
Quareshi v. State of Bihar, AIR 1958 SC 731]).”313) Thus, even when two aspects of the fundamental rights of the
same individual, which appear to be in conflict with each other, is
done, we find that the Aadhaar Act has struck a fair balance
between the right of privacy of the individual with right to life of
the same individual as a beneficiary.
In the face of the all pervading prescript for accomplished
socio-economic rights, that need to be given to the deprived and
marginalised section of the society, as the constitutional
imperative embodied in these provisions of the Act, it is entitled to
receive judicial imprimatur.
Re : Argument on Exclusion:
314) Some incidental aspects, however, remain to be discussed. It
was argued by the petitioners that the entire authentication
process is probabilistic in nature inasmuch as case of a genuine
person for authentication can result in rejection as biometric
technology does not guarantee 100% accuracy. It may happen
Writ Petition (Civil) No. 494 of 2012 connected matters Page 383 of 567
for various reasons, namely, advance age, damage to fingerprintsdue to accident, etc. Even in case of children the fingerprints
may change when they grow up. The emphasis was that there
was a possibility of failure in authentication for various reasons
and when it happens it would result in the exclusion rather than
inclusion. In such eventuality an individual would not only be
denied the benefits of welfare schemes, it may threaten his very
identity and existence as well and it would be violative of Articles
14 and 21 of the Constitution. The Authority has claimed that
biometric accuracy is 99.76%. It was, however, submitted that
where more than 110 crores of persons have enrolled
themselves, even 0.232% failure would be a phenomenal figure,
which comes to 27.60 lakh people. Therefore, the rate of
exclusion is alarming and this would result in depriving needy
persons to enjoy their fundamental rights, which is the so-called
laudable objective trumpeted by the respondents.
TO DICTATE FURTHER
Re. : Studies on exclusion
Re. : Finger prints of disabled, old persons etc. See other
mode of identity
315) The aforesaid apprehensions are sought to be assuaged by the
respondents by submitting that Section 7 of the Act nowhere says
Writ Petition (Civil) No. 494 of 2012 connected matters Page 384 of 567
that if authentication fails, the concerned person would bedeprived of subsidies, benefits or services. It is only an enabling
provision. It also provides that in case of such a failure, such an
individual would be permitted to establish her identity by any
other means so that genuine persons are not deprived of their
benefits which are mentioned in Section 7 as the entire Act is to
facilitate delivery of those benefits to such persons. Learned
Attorney General also referred to the Circular dated October 24,
2017 in this behalf which is issued by the Authority. That,
according to us, takes care of the problem.
316) We understand and appreciate that execution of the Aadhaar
scheme, which has otherwise a laudable objective, is a ‘work in
progress’. There have been substantial improvements in the
system over a period of time from the date of its launch. It was
stated by the learned Attorney General as well as Mr. Rakesh
Dwivedi, at the Bar, that whenever difficulties in implementation
are brought to the notice of the respondents, remedial measures
are taken with promptness. Cases of denial of services are
specifically looked into which is very much needed in a welfare
State and there can be a genuine hope that with the fine tuning of
technology, i.e. the mode of advancement at rapid pace, such
problems and concerns shall also be completely taken care of.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 385 of 567
317) In fairness to the petitioners, it is worth mentioning that they have
referred to the research carried out by some individuals and even
NGOs which have been relied upon to demonstrate that there are
number of instances leading to the exclusion i.e. the benefits are
allegedly denied on the ground of failure of authentication. The
respondents have refuted such studies. These become disputed
question of facts. It will be difficult to invalidate provisions of
Parliamentary legislations on the basis of such material, more
particularly, when their credence has not been tested.
318) That apart, there is another significant and more important aspect
which needs to be highlighted. The objective of the Act is to plug
the leakages and ensure that fruits of welfare schemes reach the
targeted population, for whom such schemes are actually meant.
This is the larger purpose, and very important public purpose,
which the Act is supposed to subserve. We have already held
that it fulfills legitimate aim and there is a rational connection
between the provisions of the Act and the goals which it seeks to
attain. The Act passes the muster of necessity stage as well
when we do not find any less restrictive measure which could be
equally effective in achieving the aim. In a situation like this
where the Act is aimed at achieving the aforesaid public purpose,
Writ Petition (Civil) No. 494 of 2012 connected matters Page 386 of 567
striving to benefit millions of deserving people, can it beinvalidated only on the ground that there is a possibility of
exclusion of some of the seekers of these welfare schemes?
Answer has to be in the negative. We may hasten to add that by
no means, we are accepting that if such an exclusion takes place,
it is justified. We are only highlighting the fact that the
Government seems to be sincere in its efforts to ensure that no
such exclusion takes place and in those cases where an
individual who is rightfully entitled to benefits under the scheme is
not denied such a benefit merely because of failure of
authentication. In this scenario, the entire Aadhaar project cannot
be shelved. If that is done, it would cause much more harm to the
society.
319) We are also conscious of the situation where the formation of
fingerprints may undergo change for various reasons. It may
happen in the case of a child after she grows up; it may happen
in the case of an individual who gets old; it may also happen
because of damage to the fingers as a result of accident or some
disease etc. or because of suffering of some kind of disability for
whatever reason. Even iris test can fail due to certain reasons
including blindness of a person. We again emphasise that no
Writ Petition (Civil) No. 494 of 2012 connected matters Page 387 of 567
person rightfully entitled to the benefits shall be denied the sameon such grounds. It would be appropriate if a suitable provision
be made in the concerned regulations for establishing an identity
by alternate means, in such situations. Furthermore, if there is a
0.232% failure in authentication, it also cannot be said that all
these failures were only in those cases where authentication was
for the purpose of utilising for the benefit of the welfare schemes,
i.e. with reference to Section 7 of the Act. It could have
happened in other cases as well. Be as it may, there is yet
another angle which has to be kept in mind and cannot be
ignored. We have already highlighted above as to how the
Aadhaar project is aimed at serving a much larger public interest.
The Authority has claimed that biometric accuracy is 99.76% and
the petitioners have also proceeded on that basis. In this
scenario, if the Aadhaar project is shelved, 99.76% beneficiaries
are going to suffer. Would it not lead to their exclusion? It will
amount to throwing the baby out of hot water along with the
water. In the name of 0.232% failure (which can in any case be
remedied) should be revert to the pre-Aadhaar stage with a
system of leakages, pilferages and corruption in the
implementation of welfare schemes meant for marginalised
section of the society, the full fruits thereof were not reaching to
Writ Petition (Civil) No. 494 of 2012 connected matters Page 388 of 567
such people? The Aadhaar programme was conceived andconceptualised by Mr. Nandan Nilekani under the leadership of
then Prime Minister, a great economist himself. It went through
rigorous process of testing about its effectiveness before it is
launched. This has been stated in the beginning. The entire aim
behind launching this programme is the ‘inclusion’ of the
deserving persons who need to get such benefits. When it is
serving much larger purpose by reaching hundreds of millions of
deserving persons, it cannot be crucified on the unproven plea of
exclusion of some. We again repeat that the Court is not
trivialising the problem of exclusion if it is there. However, what
we are emphasising is that remedy is to plug the loopholes rather
than axe a project, aimed for the welfare of large section of the
society. Obviously, in order to address the failures of
authentication, the remedy is to adopt alternate methods for
identifying such persons, after finding the causes of failure in their
cases. We have chosen this path which leads to better
equilibrium and have given necessary directions also in this
behalf.
320) Another facet which needs examination at this stage is the
meaning that is to be assigned to the expression ‘benefits’
Writ Petition (Civil) No. 494 of 2012 connected matters Page 389 of 567
occurring in Section 7 of the Aadhaar Act, along with ‘subsidies’and ‘services’. It was argued that the expression ‘benefits’ is very
lose and wide and the respondents may attempt to bring within its
sweep any and every kind of governmental activity in the name of
welfare of communities, which would result in making the
requirement of Aadhaar virtually mandatory. It was pointed out
that by issuing various circulars the Government has already
brought within the sweep of Section 7, almost 139 such
subsidies, services and benefits.
321) No doubt, the Government cannot take umbrage under the
aforesaid provision to enlarge the scope of subsidies, services
and benefits. ‘Benefits’ should be such which are in the nature of
welfare schemes for which resources are to be drawn from the
Consolidated Fund of India.
Therefore actions by CBSE, NEET, JEE and UGC requirements
for scholarship shall not be covered under Section 7, unless it is
demonstrated that the expenditure is incurred from Consolidated
Fund of India. Further, the expression ‘benefit’ has to be read
ejusdem generis with the preceding word ‘subsidies’.
322) We also make it clear that a benefit which is earned by an
Writ Petition (Civil) No. 494 of 2012 connected matters Page 390 of 567
individual (e.g. pension by a government employee) cannot becovered under Section 7 of the Act, as it is the right of the
individual to receive such benefit.
At the same time, we have gone through the list of notifications
which are issued under Section 7 of the Aadhaar Act. We find
that most of these notifications pertain to various welfare
schemes under which benefits, subsidies or services are provided
to the intending recipients. Moreover, in order to avail the
benefits, only one time verification is required except for few
services where annual verification is needed. It is only in respect
of fertilizer subsidy where authentication is required every time
the fertilizer is disbursed. However, it is clarified that fertilizer is
also given on the basis of other documents such as Kisan Credit
Card, etc. At the same time, we hope that the respondents shall
not unduly expand the scope of ‘subsidies, services and benefits’
thereby widening the net of Aadhaar, where it is not permitted
otherwise. Insofar as notifications relating to children are
concerned, we have already dealt with the same separately. We,
thus, conclude this aspect as under:
(a) ‘benefits’ and ‘services’ as mentioned in Section 7 should be
those which have the colour of some kind of subsidies etc.,
namely, welfare schemes of the Government whereby
Writ Petition (Civil) No. 494 of 2012 connected matters Page 391 of 567
Government is doling out such benefits which are targeted at aparticular deprived class.
(b) The expenditure thereof has to be drawn from the
Consolidated Fund of India.
(c) On that basis, CBSE, NEET, JEE, UGC etc. cannot make
the requirement of Aadhaar mandatory as they are outside the
purview of Section 7 and are not backed by any law.
Children:
323) Though, we have upheld, in general, the validity of Section 7 of
the Aadhaar Act, one specific aspect thereof is yet to be
considered. Section 7 mandates requirement of Aadhaar for the
purposes of receiving certain subsidies, benefits and services.
Thus, any individual who wants to seek any of these subsidies,
benefits and services is compulsorily required to have an
Aadhaar number. This will include children as well. Some of the
petitioners as well as some other applicants who have intervened
in these petitions have expressed their concern about the
mandatory requirement of Aadhaar for children and subsequent
linking for realising their basic rights including education. They
have referred to various circulars and notifications issued through
various functionaries, schools, The Ministry of Human Resource
Writ Petition (Civil) No. 494 of 2012 connected matters Page 392 of 567
Development (MHRD) which have mandated production ofAadhaar card details for the children seeking admission to
schools and to link the Aadhaar of the students already enrolled.
We have held that Aadhaar is a voluntary scheme and, therefore,
the Aadhaar number is to be alloted to an individual on his
‘consent’. No doubt, for the purposes of utilising any of the
benefits under Section 7 of the Aadhaar Act, it becomes
necessary to have Aadhaar number. However, the question is as
to whether it can be extended to children? It is more so when
they are not under legal capacity to provide any ‘consent’ under
the law.
324) Article 21A of the Constitution guarantees right to education and
makes it fundamental right of the children between 6 years and
14 years of age. Such a right cannot be taken away by imposing
requirement of holding Aadhaar card, upon the children.
325) In view thereof, admission of a child in his school cannot be
covered under Section 7 of the Aadhaar Act as it is neither
subsidy nor service. No doubt, the expression ‘benefit’ occurring
in Section 7 is very wide. At the same time, it has to be given
restrictive meaning and the admission of children in the schools,
when they have fundamental right to education, would not be
Writ Petition (Civil) No. 494 of 2012 connected matters Page 393 of 567
covered by Section 7, in our considered view. The respondentsmade an attempt to justify the linkage of Aadhaar with child
information and records by arguing that there have been several
instances of either impersonations at examinations or bogus
admissions which have the potential to pilfer away various
scholarship schemes which the Government provides for weaker
sections from time to time. If this is the objective, then also
requirement of Aadhaar cannot insisted at the time of admission
but only at the stage of application for Government scholarships.
Insofar as impersonation at examination is concerned, that can
be easily checked and contained by other means with effective
checks and balances. When there are alternative means,
insistence on Aadhaar would not satisfy the test or proportionality.
This would violate the privacy right of the children importance
whereto is given by the Constitution Bench in K.S. Puttaswamy in
the following words:
“633. Children around the world create perpetual digital
footprints on social network websites on a 24/7 basis as
they learn their ‘ABCs’: Apple, Bluetooth, and Chat followed
by Download, E-Mail, Facebook, Google, Hotmail, and
Instagram. They should not be subjected to the
consequences of their childish mistakes and naivety, their
entire life. Privacy of children will require special protection
not just in the context of the virtual world, but also the real
world.”326) It is also important to note herein that the Juvenile Justice Act,
Writ Petition (Civil) No. 494 of 2012 connected matters Page 394 of 567
2015 while addressing children in need of care and protectionand children in conflict with law enunciates that the records of the
children are confidential and will not be parted with unless
requested by the Children’s Court. In contrast, the submission of
the Union justifying linking of Aadhaar with student records on
malpractice in examinations and potential bogus admissions with
no safeguards whatsoever.
327) It has to be kept in mind that when the children are incapable of
giving consent, foisting compulsion of having Aadhaar card upon
them would be totally disproportionate and would fail to meet the
proportionality test. As the law exists today, a child can hold
property, operate a bank account, be eligible to be a nominee in
an insurance policy or a bank account or have any financial
transaction only through a legal guardian who has to be a major
of sound mind. In cases where a child is in conflict with the law,
the child is given a special criminal trial under the Juvenile Justice
(Care and Protection of Children) Act, 2015 and there is a
mandatory requirement for the records to be kept confidential and
destroyed so that the criminal record of the child is not
maintained. This is the position in law contained in Section 11 of
the Indian Contract Act, 1872, Section 45ZA of the Banking
Writ Petition (Civil) No. 494 of 2012 connected matters Page 395 of 567
Regulation Act, 1949, Section 39 of the Insurance Act, 1938,Section 90 of the Indian Penal Code (which provides that consent
of the child who is under 12 years of age shall not be regarded as
consent) etc. Thus, when a child is not competent to contract;
not in a position to consent; barred from transferring property;
prohibited from taking employment; and not allowed to
open/operate bank accounts and, as a consequence, not in a
position to negotiate her rights, thirsting upon compulsory
requirement of holding Aadhaar would be an inviable inroad into
their fundamental rights under Article 21. The restriction imposed
on such a right in the form of an Aadhaar cannot be treated as
constitutionally justified. We may also mention here that State is
supposed to keep in mind the best interest of the children which
is regarded as primary consideration in our Constitution (See
R.D. Upadhyay v. State of Andhra Pradesh Ors.107). The
convention on the Rights of Child 108 reiterates that the best
interests of the child will be the basic concern of the parents or
legal guardians of the child. The Constitution affirms acting in the
best interest of the children and confers the responsibility on the
State to not only safeguard the best interests of children but also
act in furtherance of it. Therefore, we are of the opinion that the
107(2007) 15 SCC 49
108India acceded to the UN Convention on the Rights of the Child in December 1992 to reiterate its
commitment to the cause of the children.Writ Petition (Civil) No. 494 of 2012 connected matters Page 396 of 567
State is constitutionally bound to facilitate and enable the parents
and guardians of the children to assert their rights and act in their
best interest and this has to be done without having any
mandatory directives to it. The onus of overseeing and lawfully
safeguarding the rights and immunities, to which children are
entitled to, rests on the State and the authorities under it. Giving
proper education to children and ensuring that they become
valuable citizens of this nation subserves public interest. This is
the mandate of Convention on the Rights of Child (CRC) as well.
We may reproduce Article 27 of the CRC:
“States Parties recognize the right of every child to a
standard of living adequate for the child’s physical, mental,
spiritual, moral and social development.2. The parent(s) or others responsible for the child have
the primary responsibility to secure, within their abilities
and financial capacities, the conditions of living necessary
for the child’s development.3. States Parties, in accordance with national conditions
and within their means, shall take appropriate measures to
assist parents and others responsible for the child to
implement this right and shall in case of need provide
material assistance and support programmes, particularly
with regard to nutrition, clothing and housing.”328) Article 8 of the CRC provides that:
“(2) For the purpose of guaranteeing and promoting the
rights set forth in the present Convention, States Parties
shall render appropriate assistance to parents and legal
guardians in the performance of their child-rearing
responsibilities and shall ensure the development of
institutions, facilities and services for the care of children.Writ Petition (Civil) No. 494 of 2012 connected matters Page 397 of 567
(3) States Parties shall take all appropriate measures to
ensure that children of working parents have the right to
benefit from child-care services and facilities for which they
are eligible.”329) Further, Article 16 of the Convention on the Rights of Child, 1989
bars children from being subject to arbitrary or unlawful
interference in their privacy, family, home, or correspondence.
One of the principles espousing the Juvenile Justice Act, 2015 is
the principle of confidentiality. Section 24 of the Act, dealing with
children in conflict with law, further emphasizes:
“(2) The Board shall make an order directing the Police, or
by the Children’s court to its own registry that the relevant
records of such conviction shall be destroyed after the
expiry of the period of appeal or, as the case may be, a
reasonable period as may be prescribed.”330) Section 3 of the Juvenile Justice Act, 2015 expounds the
principles underlying the process in dealing with children under
the Statute. The principle of right to privacy and confidentiality
emphasizes, “Every child shall have a right to protection of his
privacy and confidentiality, by all means and throughout the
judicial process.”
331) We would like to reproduce the following observations of English
quote in Murray v. Big Pictures (UK) Ltd.109 where greatest
109(2008) 3 WLR 1360
Writ Petition (Civil) No. 494 of 2012 connected matters Page 398 of 567
significance is attached to the privacy right when it comes tochildren. That was a case where photographer had taken a series
of photographs of a writer’s infant son, which were later published
in a newspaper. The issue was whether there was misuse of
private information by taking photographs. It was held that:
“The question of whether there is a reasonable expectation
of privacy is a broad one, which takes account of all the
circumstances of the case. They include the attributes of
the claimant, the nature of the activity in which the claimant
was engaged, the place at which it was happening, the
nature and purpose of the intrusion, the absence of
consent and whether it was known or could be inferred, the
effect on the claimant and the circumstances in which and
the purposes for which the information came into the hands
of the publisher...It is at least arguable that David had a
reasonable expectation of privacy. The fact that he is a
child is in our view of greater significance than the judge
thought.”We may also record at this stage that various circulars,
orders and notifications are issued by different Ministries and
Departments under Section 7 of the Aadhaar Act which pertain to
children. Some of these are:
(1) National Child Labour Project (NCLP).
(2) Scholarship schemes which are given to school students,
like National Means-cum-Merit Scholarship Scheme;
National Scheme of Incentive to Girls for Secondary
Education; Benefit to 6 to 14 years children under Sarva
Shiksha Abhiyan; Inclusive Education of the Disabled at
Writ Petition (Civil) No. 494 of 2012 connected matters Page 399 of 567
Secondary State; and Mid-day Meal for Children.(3) Assistance/Scholarship given by the Department of
Empowerment to the Persons with Disabilities, which
include Scholarship Schemes for education of students
with disabilities.
(4) Following Schemes floated by the Ministry of Women and
Child Development, some of which relate to children:
(a) Supplementary Nutrition Programme under ICDS
Scheme.
(b) Payment of honorarium to AWWs AWHs under
ICDS Scheme.
(c) Supplementary Nutrition for children offered at Creche
Centres.
(d) Honorarium paid towards the Creche Workers and
Creche Helpers.
(e) Maternity Benefit Programme (MBP).
(f) Scheme for Adolescent Girls.
(g) National Mission for Empowerment of Women.
(h) ICDS Training Programme.
(i) Ujjawala Scheme.
(j) Swadhar Scheme.
(k) Integrated Child Protection Scheme.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 400 of 567
(l) STEP programme.
(m) Rashtriya Mahila Kosh.
(n) Pradhan Mantri Matru Vanana Yojana.
(5) Painting and Essay competitions for school children under
IEC component of Human Resource Development and
Capacity Building.
332) After considering the matter in depth and having regard to the
discussion aforesaid, we hold as under:
(a) For the enrolment of children under the Aadhaar Act, it
would be essential to have the consent of their parents/guardian.
(b) On attaining the age of majority, such children who are
enrolled under Aadhaar with the consent of their parents, shall be
given the right to exit from Aadhaar, if they so choose.
(c) Insofar as the school admissions of children are concerned,
requirement of Aadhaar would not be compulsory as it is neither a
service nor subsidy. Further, having regard to the fact that a child
between the age of 6 to 14 years has the fundamental right to
education under Article 21A of the Constitution, school admission
cannot be treated as ‘benefit’ as well.
(d) Benefits to children between 6 to 14 years under Sarva
Shiksha Abhiyan, likewise, shall not require mandatory Aadhaar
Writ Petition (Civil) No. 494 of 2012 connected matters Page 401 of 567
enrolment.(e) For availing the benefits of other welfare schemes which are
covered by Section 7 of the Aadhaar Act, though enrolment
number can be insisted, it would be subject to the consent of the
parents, as mentioned in (a) above.
(f) We also clarify that no child shall be denied benefit of any of
these schemes if, for some reasons, she is not able to produce
the Aadhaar number and the benefit shall be given by verifying
the identity on the basis of any other documents. We may record
that a statement to this effect was also made by Mr. K.K.
Venugopal, learned Attorney General for India, at the Bar.
Challenge to the other provisions of the Aadhaar Act:
333) The petitioners have challenged the constitutionality of certain
other provisions of Aadhaar Act as well. They have submitted
their reasons on the basis of which they are seeking the
declaration to the effect these provisions are unconstitutional. We
reproduce the provisions of Aadhaar Act as well as reasons given
by the petitioners in tabulated form, as under:
S.No. Provisions of the Reason for being unconstitutional
Aadhaar Act1. Section 2(c) and 2(d) - ‘Authentication Record’ includes the time of
authentication and authentication and the identity of the
authentication record, requesting entity. The UIDAI and the
read with Section 32 Authentication Service Agency (ASA) isWrit Petition (Civil) No. 494 of 2012 connected matters Page 402 of 567
permitted to store this authentication record
for 2+5 years (as per Regulations 20 and
26/27 of the Authentication Regulations).By definition it provides for real-time
surveillance and profiling. The record
stores both the time and the identity of the
requesting entity.2. Section 2(h) read with The notion of CIDR is by itself an
Section 10 of CIDR unconstitutional database. The statute
cannot operate without a CIDR. The notion
of a CIDR where every individual’s
biometric as well as demographic
information is centrally stored is an
authoritarian or police state construct and
has no place in a democracy that
guarantees individual freedom. A CIDR
from where data can be backed, and which
is operated not by the respondents but by
foreign entities, is conceptually and
constitutionally an impermissible
compromise on national sovereignty and
security.Notably, Section 10 empowers UIDAI to
appoint one or more entity to establish and
maintain the CIDR.3. Section 2(l) read with The notion of an enrolling agency as
Regulation 23 of the defined in Section 2(l) is also
Aadhaar (Enrolment unconstitutional inasmuch as the agency,
and Updates) as defined, need not be a Government
Regulation - ‘enrolling entity but could be a private entity. The
agency’ collection of sensitive personal biometric
and demographic data and information for
the purposes of storage must be conducted
by a Government agency alone since this is
a bare minimum procedural safeguard
against the misuse and commercial
exploitation of private personal information.
The State, acting as a trustee and fiduciary,
cannot delegate or require private enrolling
agencies to discharge this non-delegable
function. Moreover, an enrolling agency
that is operated privately cannot be
entrusted with the crucial tasks of
explaining the voluntary nature of Aadhaar
Writ Petition (Civil) No. 494 of 2012 connected matters Page 403 of 567
enrolments and securing informed consent.4. Section 2(v) - ‘resident’ The expression ‘Resident’ defined in
Section 2(v) is arbitrary and
unconstitutional inasmuch as the Act
creates no credible machinery for
evaluating a claim that a person has been
residing in India for a period of 182 days or
more, in the 12 months immediately
preceding the date of application for
enrolment. The forms being used by the
respondents as also proof of identification
and proof of address requirement being
used by the respondents until enactment of
the statute nowhere require any proof
relating to residence for 182 days. The
impugned Act purports to validate all these
enrolments. The forms being used by the
respondents do not even contain a
declaration regarding the enrolee being
resident for 182 days. Further, there is no
requirement in the definition of ‘Resident’
that the person has to be legally resident
and the expression would wrongly take in
illegal immigrants as well.5. Section 3 – Aadhaar It is an ‘entitlement’. It cannot be
Number understood to be mandatory. Theinformation provided under Section 3(2) is
of no relevance if obtaining Aadhaar is
made mandatory. By design, Aadhaar was
never meant to be mandatory.6. Section 5 – Special Section 5 of the Aadhaar Act, inasmuch as
treatment to children it extends to children and persons with
disabilities, implies that the State is
securing biometric and demographic data
even before the age of consent insofar as
children are concerned. The Act in its
coercive reach and application to children
who have not attained the age of consent is
per se unconstitutional and violate of the
fundamental rights of the children.7. Section 6 – Update of Section 6 of the Act is unconstitutional
information inasmuch as it enables the respondents to
continually compel residents to periodically
furnish demographic and biometric
information. This provision is coercive in
Writ Petition (Civil) No. 494 of 2012 connected matters Page 404 of 567
operation and effect and not only
undermines the so-called ‘voluntary’ nature
of the programme (as falsely claimed by
the respondents) but also undermines the
false claim with respect to the ‘reliability of
biometrics’.8. Section 8 Section 8 is unconstitutional inasmuch as it
enables tracking, tagging and profiling of
individuals through the authentication
process. It is a charter for surveillance in
real time and with a degree of specificity
that enables persons’ physical movements
to be traced in real time. The
authentication mandate in terms of Section
8 is not being worked by the respondents
through any proprietary technology and is
outsourced to foreign entities or entities
under the ownership and control of foreign
companies and corporations. The entire
framework and working of the
authentication procedure in terms of
Section 8 is an impermissible, permanent
and irreversible compromise of national
sovereignty and national security.9. Section 9 Section 9 of the Aadhaar Act is also
unconstitutional inasmuch as the Aadhaar
number is de facto serving as proof of
citizenship and domicile. This is seen from
various media reports where even in the
absence of any rigorous verification
process, Aadhaar numbers are being
issued. The petitioners submit that equally
subversive of national security and national
integrity is the practice of passports being
issued based upon an Aadhaar card. In
other words, persons who may not be
entitled to passports are having Aadhaar
numbers issued and thereafter securing
passports in violation of the citizenship
provisions.10. Chapter IV – Sections The petitioners submit that the whole of
11 to 23 Chapter IV of the Act comprising Sections
11 to 23 is ultra vires and unconstitutional.
The Constitution does not permit the
establishment of an authority that in turnWrit Petition (Civil) No. 494 of 2012 connected matters Page 405 of 567
through an invasive programme can chain
every Indian citizen/resident to a central
data bank and maintain lifelong records
and logs of that individual. The
Constitution of India when read as a whole
is designed for a nation of free individuals
who enjoy a full range of rights and who are
entitled under the Constitution to lead their
lives without any monitoring or scrutiny or
continuous oversight by the State or any of
its organs. The high value of personal
freedom runs throughout the fabric of the
Indian Constitution and any authority
created for the purpose of ‘cradle to grave’
scrutiny is directly violative of the personal
freedom charter built into the Indian
Constitution. The Constitution of India
does not contemplate a ‘nanny state’ where
the State oversees every individual’s
conduct and maintains a record of
individual interactions. The UIDAI by
design and function is created for an
absolutely unconstitutional objective of
invading privacy, electronically overseeing
individuals and tethering them to a central
data repository that will maintain lifelong
records. The notion of individual freedom
must entail the right to be alone; the right of
an individual to be free from any monitoring
so long as that individual does not breach
or transgress any criminal law. Here, the
establishment of the second respondent is
for an unconstitutional purpose of
overseeing and monitoring individual
conduct even where the person does not
remotely fall foul of any law. The second
respondent is a State organ designed to
invade individual freedom and whose
purpose is to constrict individual freedom.11. Sections 23 and 54 – Section 23, read with Section 54 of the
excessive delegation Aadhaar Act, is unconstitutional on the
ground of excessive delegation.A perusal of the sub-clauses in Section
23(2) and Section 54(2) indicate that on
every crucial aspect pertaining to biometric
Writ Petition (Civil) No. 494 of 2012 connected matters Page 406 of 567
data, demographic information, the
operation and working of the CIDR,
generating and assigning Aadhaar
numbers, authentication of Aadhaar
numbers, omitting and deactivating
Aadhaar numbers, commercial exploitation
of information collected by the Government,
etc. are all left entirely to the UIDAI without
any sufficient defined legislative policy
indicating the limits within which the UIDAI
may legitimately operate.Having regard to the invasive nature of the
Aadhaar programme, its deep and
pervasive impact on civil liberties and the
fiduciary/trusteeship principle based on
which data and information is being
collected, it was incumbent upon the
legislature to set out detailed and adequate
limits to restrict the discretion conferred on
the UIDAI. The impugned provisions
virtually give an unlimited charter to the
UIDAI to ride rough shod over fundamental
rights by framing regulations as it pleases.12. Section 23(2)(g) read This empowers the UIDAI alone to omit and
with Chapter VI VII – deactivate an Aadhaar number with almost
Regulations 27 to 32 of no redressal to the individual Aadhaar
the Aadhaar (Enrolment number holder. Regulation 27(2) provides
and Update) that upon cancellation of an Aadhaar
Regulations, 2016 number, all services provided by the
authority shall be permanently disabled.Regulation 28(2) provides that upon
deactivation of an Aadhaar number, all
numbers shall be temporarily suspended till
such time that the Aadhaar number holder
updates or rectifies the alleged error.Notably, as per Regulation 30, there shall
be a post facto communication of omission
or deactivation of the Aadhaar number shall
be informed to the Aadhaar number holder.The only redressal mechanism provided
under the Aadhaar Act is under Regulation
32 wherein a grievance redressal call
centre shall be provided by the UIDAI. This
provision provides unbridled power to the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 407 of 567
UIDAI to switch of the life of an individual.There is absolutely no redressal
mechanism for the individual. He is not
even provided with an opportunity of
hearing prior to deactivation, which violates
principles of natural justice.13. Section 29 This Section is liable to be struck down
inasmuch as it pertains sharing of identity
information. The provisions suffer from the
vice of permitting the spread and
dissemination of sensitive personal
information through a network of entities
and individuals for commercial gain or
otherwise and allows for the sharing of
information beyond the ostensible object of
targeted deliveries.Both the biometric as well as the
demographic information are entitled to the
highest degree of protection and the
impugned provision, inasmuch as it draws
a distinction between core biometric
information and other information, creates
an artificial distinction into two classes of
information which in law are both entitled to
equal protection against sharing or
dissemination.Sub-section (4) permits UIDAI by regulation
to permit ‘core biometric information’ to be
displayed publicly.14. Section 33 Section 33 is unconstitutional inasmuch as
it provides for the use of the Aadhaar
database for police investigation pursuant
to an order of a competent court. Section 3
violates the protection against self-incrimination as enshrined under Article
20(3) of the Constitution of India.Furthermore, Section 33 does not afford an
opportunity of hearing to the concerned
individual whose information is sought to be
released by the UIDAI pursuant to the
Court’s order. This is contrary to the
principles of natural justice.Section 33(2) provides for disclosure of
Writ Petition (Civil) No. 494 of 2012 connected matters Page 408 of 567
information in the interest of national
security pursuant to a direction of a
competent officer. The said provision is
also hit by the principles of protection
against self-incrimination, as enshrined
under Article 20(3) of the Constitution.Further, the impugned Act does not define
‘interest of national security’ or otherwise
limit the circumstances where the said
provision can be invoked. This makes the
impugned provision unconstitutional as it
suffers from the vice of vagueness and
arbitrariness.15. Section 47 Section 47 of the impugned Act is
unconstitutional inasmuch as it does not
allow an individual citizen who finds that
there is a violation of the impugned Act to
initiate the criminal process. There could
be several circumstances where UIDAI
itself or some third party is guilty of having
committed offences under the Act. By
restricting the initiation of the criminal
process, the Aadhaar Act renders the penal
machinery ineffective and sterile. The said
section creates a bar on a court to take
cognizance of any offence under the
impugned Act, save on a complaint made
by the UIDAI or an officer authorized by it.In effect there is a bar of cognizance of a
complaint made by an individual for breach
of his biometric or demographic information
which has been collected by the
respondent. Such bar is unconstitutional
as it forecloses legal remedy to affected
individuals.16. Section 48 – Power of This Section is vague and arbitrary
Central Government to inasmuch as it permits the Central
supersede UIDAI Government to take over the UIDAI. The
Act does not define a ‘pubic emergency’.This Section empowers the Central
Government in an ‘emergency’ situation to
be in a position to completely control the
life of every citizen who is enrolled with the
UIDAI.17. Section 57 Section 57 is patently unconstitutional
Writ Petition (Civil) No. 494 of 2012 connected matters Page 409 of 567
inasmuch as it allows an unrestricted
extension of the Aadhaar platform to users
who may be Government agencies or
private sector operators. This provision
clearly shows that the impugned Act has a
much wider scope than what may
legitimately be considered as a Money Bill.
Moreover, this provision enables the
seeding of the Aadhaar number across
service providers and other gateways and
thereby enables the establishment of a
surveillance state. The impugned provision
enables the spread of applications and
Aadhaar dependent delivery systems that
are provided not from Consolidated Fund of
India resources but through any other
means.It is submitted that Section 57 also enables
commercial exploitation of an individual’s
biometrics and demographic information by
the respondents as well as private entities.
It ensures that creation of a surveillance
society, where every entity assists the State
to snoop upon an Aadhaar holder.18. Section 59 Section 59 of the impugned Act is
unconstitutional inasmuch as it seeks to
validate all action undertaken by the
Central Government pursuant to the
Notification dated January 28, 2009. It is
submitted that there was no consent, let
alone informed consent obtained from
individuals at the time of enrolment under
the said notification.Such enrolment which has been conducted
without obtaining adequate consent is
unconstitutional as it amounts to wrongful
deprivation of the most intimate personal
information of an individual. Indeed, taking
of an individual’s biometric information
without informed consent is a physical
invasion of his or her bodily integrity. The
collection of demographic information
through private entities and without proper
counselling or written informed consent is
Writ Petition (Civil) No. 494 of 2012 connected matters Page 410 of 567
illegal and incapable of being
retrospectively ratified. All these records
which have been illegally obtained and
created without necessary consent out to
be destroyed and cannot be said to be
validated by the impugned provision. The
Parliament cannot create a legal fiction of
‘consent’ where there was none.The executive under the Constitution of
India cannot take away someone’s
fundamental right to privacy and then
support its action on the proposition of law
that ‘retrospectively’ deems consent must
have been given.The said provision seeks to validate any
action taken by the Central Government
alone. The action of private enrolers is not
even sought to be protected. Therefore, all
collections made by private entities under
the said notification should also stand
invalidated and all data collected by private
entities should be destroyed forthwith.334) We have already dealt with the issue of validity of some of the
provisions. We would now advert to the remaining provisions,
validity whereof is questioned.
Keeping in view the preceding discussion, challenge to
most of these provisions would fail. Insofar as Section 2(l) read
with Regulation 23 of the Aadhaar (Enrolment and Update)
Regulations is concerned which deals with ‘enrolling agency’,
main challenge is on the ground that the work of an enrolment
could not have been given to a private entity as private entity
cannot be entrusted with the crucial task of explaining the nature
Writ Petition (Civil) No. 494 of 2012 connected matters Page 411 of 567
of Aadhaar enrolment and securing informed consent. Further,the task of collection of sensitive personal biometric and
demographic data and information for the purpose of storage
cannot be given to private hands. However, having regard to the
nature of process that has been explained by the Authority, which
ensures that immediately on enrolment, the concerned data
collected by the private entity is beyond its control; it gets
encrypted; and stands transmitted to CIDR, we do not find any
basis of the apprehension expressed by the petitioners.
335) Insofar as Section 2(v) is concerned which defines resident, there
is nothing wrong with the definition. The grievance of the
petitioners is that the Aadhaar Act creates no credible machinery
for availing a claim that a person has been residing in India for
182 days or more. Apprehension is expressed that this
expression may also facilitate the entry of illegal immigrants.
These aspects can be taken care of by the respondents by
providing appropriate mechanism. We direct the respondents to
do the needful in this behalf. However, that would not render the
definition unconstitutional.
336) Section 3, by the very language thereof, mentions that it is an
enabling provision which ‘entitles’ every resident to obtain
Aadhaar number. Therefore, it is voluntary in nature. This is so
Writ Petition (Civil) No. 494 of 2012 connected matters Page 412 of 567
held by Division Bench of this Court in Binoy Viswam in thefollowing words:
“93. Before proceeding to discuss this argument, one
aspect of the matter needs clarification. There was a
debate as to whether the Aadhaar Act is voluntary or even
that Act makes enrolment under Aadhaar mandatory.94. First thing that is to be kept in mind is that the Aadhaar
Act is enacted to enable the Government to identify
individuals for delivery of benefits, subsidies and services
under various welfare schemes. This is so mentioned in
Section 7 of the Aadhaar Act which states that proof of
Aadhaar number is necessary for receipt of such subsidies,
benefits and services. At the same time, it cannot be
disputed that once a person enrols himself and obtains
Aadhaar number as mentioned in Section 3 of the Aadhaar
Act, such Aadhaar number can be used for many other
purposes. In fact, this Aadhaar number becomes the
Unique Identity (UID) of that person. Having said that, it is
clear that there is no provision in the Aadhaar Act which
makes enrolment compulsory. May be for the purpose of
obtaining benefits, proof of Aadhaar card is necessary as
per Section 7 of the Act. The proviso to Section 7 stipulates
that if an Aadhaar number is not assigned to enable an
individual, he shall be offered alternate and viable means
of identification for delivery of the subsidy, benefit or
service. According to the petitioners, this proviso, which
acknowledges alternate and viable means of identification,
and therefore makes Aadhaar optional and voluntary and
the enrolment is not necessary even for the purpose of
receiving subsidies, benefits and services under various
schemes of the Government. The respondents, however,
interpret the proviso differently and their plea is that the
words “if an Aadhaar number is not assigned to an
individual” deal with only that situation where application
for Aadhaar has been made but for certain reasons
Aadhaar number has not been assigned as it may take
some time to give Aadhaar card. Therefore, this proviso is
only by way of an interim measure till Aadhaar number is
assigned, which is otherwise compulsory for obtaining
certain benefits as stated in Section 7 of the Aadhaar Act.
Fact remains that as per the Government and UIDAI itself,
the requirement of obtaining Aadhaar number is voluntary.Writ Petition (Civil) No. 494 of 2012 connected matters Page 413 of 567
It has been so claimed by UIDAI on its website and
clarification to this effect has also been issued by UIDAI.95. Thus, enrolment under Aadhaar is voluntary. However,
it is a moot question as to whether for obtaining benefits as
prescribed under Section 7 of the Aadhaar Act, it is
mandatory to give Aadhaar number or not is a debatable
issue which we are not addressing as this very issue is
squarely raised which is the subject-matter of other writ
petition filed and pending in this Court.”Therefore, the apprehension of the petitioners that Section
3 is mandatory stands assuaged.
337) Section 5 is a special measure for issuance of Aadhaar number
to certain category of persons which attempts to take care of
certain disabilities with which certain individuals may be suffering.
Therefore, this provision is for the benefit of the categories of
persons mentioned in Section 5. No doubt, it mentions children
and persons with disabilities as well, that is an aspect is already
dealt with separately.
338) Section 6 deals only with the updation of demographic and
biometric information. This may become necessary under certain
circumstances. That by itself does not take away the voluntary
nature of the programme.
339) Insofar Section 9 is concerned, validity thereof is challenged
primarily on the ground that it serves as a proof of citizenship and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 414 of 567
domicile as well and some apprehensions are expressed on thatbasis. Such apprehensions have already been taken care of
while discussing the issue no. 1 pertaining to surveillance.
340) We have already discussed in detail the purpose of constituting
the Authority. In fact, the Act cannot operate without such an
Authority and, therefore, it’s constitution is imperative. Challenge
to validity of Sections 11 to 23 is predicated on the arguments of
surveillance etc. fails, having regard to our detailed discussion on
the said aspect.
341) Section 23 read with Section 54 give power to the Authority to
make certain Regulations. We do not find that this provision
gives excessive delegation to the Authority. These aspects have
already been discussed while determining the issue pertaining to
surveillance.
342) Apprehension expressed qua Section 29 are equally unfounded.
This Section rather imposes restrictions on sharing information.
No doubt, sub-section (2) states that the identity information (and
specifically excludes core biometric information) can be shared
only in accordance with the provisions of the Act and in such a
manner as may be specified by Regulations. That would not
Writ Petition (Civil) No. 494 of 2012 connected matters Page 415 of 567
make the provision unconstitutional when it is with the consent ofthe individual. In case, any regulation is made which permits
sharing of information that may contain undesirable
circumstance/reason for sharing information, such a regulation
can always be struck down. Insofar as sub-section (4) is
concerned, it is generally in favour of the residents/individuals
inasmuch as it states that information collected or created under
this Act shall not be published, displayed or posted publicly. The
is grievance, however, is that this provision enables the Authority
to publish or display etc. such an information ‘for the purposes as
may be specified by regulations’. The apprehension is that under
this provision, the Government can always make regulations
permitting publication of such information under certain
circumstances. At present, regulations which are in force are the
Aadhaar (Sharing of Information) Regulations, 2016. Chapter II
thereof is titled ‘restriction on sharing of identity information’.
Regulation 3(1) which falls under this chapter puts a categorical
ban on sharing of core biometric information collected by the
Authority under the Act, by mandating that it shall not be sharing
with anyone for any reason whatsoever. Sub-regulation (2) of
Regulation 3 permits sharing of demographic information and
photograph of an individual collected by the Authority under the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 416 of 567
Act, only with the consent of the Aadhaar number holder, that toofor authentication process in accordance with Authentication
Regulations. As already held by us, insofar as utilisation of
subsidies, benefits and services are concerned, the
authentication would be needed by the provider of such services
which would be the requesting entity and this provision has
already been upheld. Sub-regulation (3) permits sharing of
authentication records of Aadhaar number holder with him in
accordance with Regulation 28 of the Authentication Regulations.
This provision facilitates obtaining the information from the
Authority by the Aadhaar number holder herself. We are, thus, of
the opinion that Section 29 and the sharing regulations are the
provisions enacted to protect the interest of Aadhaar card holders
as they put restrictions on the sharing of information, which may
be described as provisions pertaining to data protection and
surveying legitimate state aim/interest as well. No doubt, Section
29 gives power to the delegatee to make regulations. However,
as already clarified above, as and when a regulation is made,
which impinges upon the privacy right of the Aadhaar card
holders, that can always be challenged. As of now, sharing
regulations do not contain any such provision.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 417 of 567
343) Section 33 provides for disclosure of information in certain cases.
The challenge to this provision is predicated on the ground that it
provides for the use of Aadhaar database for police verification,
which is against the ethos of Article 20(3) of the Constitution of
India, which is a rule against self-incrimination. In order to
appreciate this argument, we would like to reproduce Section 33
in its entirety:
“33. (1) Nothing contained in sub-section (2) or sub-section
(5) of section 28 or sub-section (2) of section 29 shall apply
in respect of any disclosure of information, including
identity information or authentication records, made
pursuant to an order of a court not inferior to that of a
District Judge:Provided that no order by the court under this sub-
section shall be made without giving an opportunity of
hearing to the Authority.(2) Nothing contained in sub-section (2) or sub-section (5)
of section 28 and clause (b) of sub-section (1), sub-section
(2) or sub-section (3) of section 29 shall apply in respect of
any disclosure of information, including identity information
or authentication records, made in the interest of national
security in pursuance of a direction of an officer not below
the rank of Joint Secretary to the Government of India
specially authorised in this behalf by an order of the Central
Government:Provided that every direction issued under this sub-
section, shall be reviewed by an Oversight Committee
consisting of the Cabinet Secretary and the Secretaries to
the Government of India in the Department of Legal Affairs
and the Department of Electronics and Information
Technology, before it takes effect:Provided further that any direction issued under this
sub-section shall be valid for a period of three months from
the date of its issue, which may be extended for a furtherWrit Petition (Civil) No. 494 of 2012 connected matters Page 418 of 567
period of three months after the review by the Oversight
Committee.”344) A close look at sub-section (1) of Section 33 would demonstrate
that the sub-section (1) is an exception to Section 28(2), Section
28(5) and Section 29(2) of the Act. Those provisions put a bar on
the disclosure of an information thereby protecting the information
available with the UIDAI in respect of any person. However, as
per sub-section (1), such information can be disclosed if there is
an order of a court which order is not inferior to that of a District
Judge. This provision, therefore, only states that in suitable
cases, if court passes an order directing an Authority to disclose
such an information, then the Authority would be obliged to do so.
Thus, an embargo contained in Sections 28 and 29 is partially
lifted only in the eventuality on passing an order by the court not
inferior to that of District Judge. This itself is a reasonable
safeguard. Obviously, in any proceedings where the Court feels
such an information is necessary for the determination of
controversy that is before the Court, before passing such an
order, it would hear the concerned parties which will include the
person in respect of whom the disclosure of information is sought.
We, therefore, clarify that provisions of sub-section (1) of Section
33 by reading into the provisions that an individual whose
Writ Petition (Civil) No. 494 of 2012 connected matters Page 419 of 567
information is sought to be released shall be afforded anopportunity of hearing. There is a reasonable presumption that
the said court shall take into consideration relevant law including
Article 20(3) of the Constitution as well as privacy rights or other
rights of that person before passing such an order. Moreover, a
person in respect of whom order is passed shall also be heard
and will have right to challenge the order in a higher forum. Not
only this, proviso to Section 33(1) puts an additional safeguard by
providing that even UIDAI shall be heard before an order is
passed to this effect by the Court. In that sense, the Authority is
to act as trustee and it may object to passing of the order by the
court. Such a happening is actually taken place. We have
already noticed that against the order of the High Court of
Bombay in some criminal proceedings, order was passed
directing the Authority to give biometric information of a person,
the Authority had filed Special Leave Petition (Criminal) No. 2524
of 2014 challenging the said order on the ground that giving of
such biometric information was contrary to the provisions of the
Aadhaar Act as the information was confidential. This Court
stays the operation of the said order which depicts that there are
sufficient safeguards provided in sub-section (1) of Section 33
itself.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 420 of 567
345) Adverting to sub-section (2) of Section 33, it can be seen that this
provision enables disclosure of information including identity
information records in the interest of national security. This
provision further states that the Authority is obliged to disclose
such information in pursuance of a direction of an officer not
below the rank of Joint Secretary to the Government of India
specially authorised in this behalf by an order of the Central
Government. Proviso thereto sub-section (2) puts an additional
safeguard by prescribing that every direction issued under this
sub-section shall be reviewed by an Oversight Committee
consisting of the Cabinet Secretary and the Secretaries to the
Government of India in the Department of Legal Affairs and the
Department of Electronics and Information Technology before it
takes effect. Further, such a direction is valid only for a period of
three months from the date of its issue which can be extended by
another three months.
346) Main contention of the petitioners in challenging the provisions of
sub-section (2) of Section 33 are that no definition of national
security is provided and, therefore, it is a loose ended provision
susceptible to misuse. It is also argued that there is no
independent oversight disclosure of such data on the ground of
Writ Petition (Civil) No. 494 of 2012 connected matters Page 421 of 567
security and also that the provision is unreasonable anddisproportionate and, therefore, unconstitutional.
347) We may point out that this Court has held in Ex-Armymen’s
Protection Services Private Limited v. Union of India Ors.110 that
what is in the interest of national security is not a question of law
but it is a matter of policy. We would like to reproduce following
discussion therefrom:
“16. What is in the interest of national security is not a
question of law. It is a matter of policy. It is not for the court
to decide whether something is in the interest of the State
or not. It should be left to the executive. To quote Lord
Hoffman in Secy. of State for Home Deptt. v. Rehman
[(2003) 1 AC 153 : (2001) 3 WLR 877 : (2002) 1 All ER 122
(HL)] : (AC p. 192C)“… [in the matter] of national security is not a
question of law. It is a matter of judgment and policy.Under the Constitution of the United Kingdom and
most other countries, decisions as to whether
something is or is not in the interests of national
security are not a matter for judicial decision. They
are entrusted to the executive.”17. Thus, in a situation of national security, a party cannot
insist for the strict observance of the principles of natural
justice. In such cases, it is the duty of the court to read into
and provide for statutory exclusion, if not expressly
provided in the rules governing the field. Depending on the
facts of the particular case, it will however be open to the
court to satisfy itself whether there were justifiable facts,
and in that regard, the court is entitled to call for the files
and see whether it is a case where the interest of national
security is involved. Once the State is of the stand that the
issue involves national security, the court shall not disclose
the reasons to the affected party.”110 (2014) 5 SCC 409
Writ Petition (Civil) No. 494 of 2012 connected matters Page 422 of 567348) Even in K.S. Puttaswamy, this Court has recognised data
retention by the Government which may be necessitated in the
public interest and in the interest of national security. We may
also usefully refer to the judgment of People’s Union for Civil
Liberties (PUCL) v. Union of India Anr.111. In that case, action
of telephone tapping was challenged as serious invasion of
individual’s privacy. The Court found that Section 5(2) of the
Telegraph Act, 1885 permits the interception of messages in
circumstances mentioned therein i.e. ‘occurrence of any public
emergency’ or ‘in the interest of public safety’. The Court
explained these expressions in the following manner:
“28. Section 5(2) of the Act permits the interception of
messages in accordance with the provisions of the said
section. “Occurrence of any public emergency” or “in the
interest of public safety” are the sine qua non for the
application of the provisions of Section 5(2) of the Act.Unless a public emergency has occurred or the interest of
public safety demands, the authorities have no jurisdiction
to exercise the powers under the said section. Public
emergency would mean the prevailing of a sudden
condition or state of affairs affecting the people at large
calling for immediate action. The expression “public safety”
means the state or condition of freedom from danger or risk
for the people at large. When either of these two conditions
are not in existence, the Central Government or a State
Government or the authorised officer cannot resort to
telephone-tapping even though there is satisfaction that it
is necessary or expedient so to do in the interests of
sovereignty and integrity of India etc. In other words, even
if the Central Government is satisfied that it is necessary or
expedient so to do in the interest of the sovereignty and
integrity of India or the security of the State or friendly
relations with sovereign States or public order or for
111 (1997) 1 SCC 301
Writ Petition (Civil) No. 494 of 2012 connected matters Page 423 of 567
preventing incitement to the commission of an offence, it
cannot intercept the messages or resort to telephone-
tapping unless a public emergency has occurred or the
interest of public safety or the existence of the interest of
public safety requires. Neither the occurrence of public
emergency nor the interest of public safety are secretive
conditions or situations. Either of the situations would be
apparent to a reasonable person.”349) Having regard to the aforesaid legal position, disclosure of
information in the interest of national security cannot be faulted
with. However, we are of the opinion that giving of such
important power in the hands of Joint Secretary may not be
appropriate. There has to be a higher ranking officer along with,
preferably, a Judicial Officer. The provisions contained in Section
33(2) of the Act to the extent it gives power to Joint Secretary is,
therefore, struck down giving liberty to the respondents to suitably
enact a provision on the aforesaid lines, which would adequately
protect the interest of individuals.
350) We now advert to the challenge laid to Section 47 of the Aadhaar
Act, which is captioned as ‘cognizance of offences’, it reads as
under:
“47. (1) No court shall take cognizance of any offence
punishable under this Act, save on a complaint made by
the Authority or any officer or person authorised by it.(2) No court inferior to that of a Chief Metropolitan
Magistrate or a Chief Judicial Magistrate shall try any
offence punishable under this Act.”Writ Petition (Civil) No. 494 of 2012 connected matters Page 424 of 567
351) Certain acts in Chapter VII are treated as offences and penalties
are also provided, from Section 34 to Section 43.
352) Section 44 clarifies that this Act would apply for offence or
contravention committed even outside India. Insofar as
investigation of these offences is concerned, Section 45 provides
that a police officer not below the rank of Inspector of Police shall
investigate any offence under this Act. Section 46, thereafter,
clarifies that penalties imposed under this Act shall not prevent
the imposition of any other penalty or punishment under any
other law for the time being in force. This scheme of Chapter VII
makes very strict provisions in respect of enforcement of the Act
which includes data protection as well. Last provision in Chapter
VII is Section 47 which provides that the cognizance would be
taken only on a complaint made by the Authority or any officer or
person authorised by it. Petitioners feel aggrieved by this
provision as it does not permit an individual citizen whose rights
are violated, to initiate the criminal process. Apprehensions are
expressed by submitting that there may be a possibility where the
Authority itself or some Governmental Authority may be guilty of
committing the offences under the Act and, in such a situation,
the Authority or any officer or person authorised by it may choose
Writ Petition (Civil) No. 494 of 2012 connected matters Page 425 of 567
not to file any complaint.353) According to the respondents, the rationale behind Section 47 is
to maintain purity and integrity of CIDR and the entire enrolment
storage in the CIDR and authentication exercise can be handled
only by the Authority. For this reason, it is the Authority which is
empowered to lodge the complaint. It is also pointed out that
similar provisions akin to Section 47 of the Aadhaar Act are
contained in many other statutes. Reference is made to Section
22 of the Mines and Minerals (Development and Regulation) Act,
1957, Section 34 of the Bureau of Indian Standards Act, 1986,
Section 34 of the Telecom Regulatory Authority of India Act, 1997,
Section 47 of the Banking Regulation Act, 1949, Section 26(1) of
the Securities and Exchange Board of India Act, 1992, Section 19
of the Environment (Protection) Act, 1986, Section 43 of the Air
(Prevention and Control of Pollution) Act, 1981 and Section 57(1)
of the Petroleum and Natural Gas Regulatory Board Act, 2006.
The respondents have also submitted that validity of such
provisions have been tested and affirmed by this Court.
Reference is made to the judgment in Raj Kumar Gupta v. Lt.
Governor, Delhi Ors.112. The respondents have also taken
support of the decision of this Court in State (NCT of Delhi) v.
112(1997) 1 SCC 556
Writ Petition (Civil) No. 494 of 2012 connected matters Page 426 of 567
Sanjay113 wherein Section 22 of the Mines and Minerals(Development and Regulation) Act, 1957 was tested. Insofar as
grievance and apprehension of the petitioners is concerned, it
can be taken care on interpreting the provisions by holding that
the Authority can lodge a complaint of its own motion or at the
request of the individual whose rights are affected thereby.
Notwithstanding the above, we are of the opinion that it
would be in the fitness of things if Section 47 is amended by
allowing individual/victim whose right is violated, to file a
complaint and initiate the proceedings. We hope that this aspect
shall be addressed at the appropriate level and if considered fit,
Section 47 would be suitably amended.
354) Section 48 cannot be treated as vague or arbitrary. ‘Public
Emergency’ is the expression which has been used in several
other enactments and held to be constitutional. It can always be
subject to scrutiny of the Courts.
355) With this, now we come to a provision which was highly debated.
At the time of arguments, the petitioners had taken strong
exception to some of its aspects. We may first take note of the
exact language of this provision:
113(2014) 9 SCC 772
Writ Petition (Civil) No. 494 of 2012 connected matters Page 427 of 567
“57. Nothing contained in this Act shall prevent the use of
Aadhaar number for establishing the identity of an
individual for any purpose, whether by the State or any
body corporate or person, pursuant to any law, for the time
being in force, or any contract to this effect: Provided that
the use of Aadhaar number under this section shall be
subject to the procedure and obligations under section 8
and Chapter VI.”356) In first blush, the provision appears to be innocuous. It enables
Aadhaar holder to establish her identity for any purpose as well.
In that sense, it may amount to empowering the Aadhaar number
holder, when she is carrying unique identity. It is her identity card
which she is able to use not only for the purposes mentioned in
the Aadhaar Act but also for any other purpose.
357) The petitioners, however, have pricked the provision with the
submission that it may be susceptible to making deep in-roads in
the privacy of individuals and is utterly disproportionate. The taint
in the provision, as projected by the petitioners, is that it brings in
private parties as well, apart from the State within the fold of
Aadhaar network giving untrammeled opportunity to them to
invade the privacy of such user. The offending portion of the
provision, according to them, is that:
(a) It allows ‘any body corporate or person’ (thereby
encompassing private bodies/persons as well) to make use of
authentication process, once an individual offers Aadhaar number
Writ Petition (Civil) No. 494 of 2012 connected matters Page 428 of 567
for establishing her identity.(b) The expression ‘for any purpose’ is wide enough, which
may be susceptible to misuse.
(c) This is permitted not only pursuant to any law for time being
in force but also pursuant to ‘any contract to this effect’ which
would mean that individuals may be forced to give their consent
in the form of contract for a purpose that may be justified or not
thereby permitting the private parties to collect biometric
information about the said individual.
358) It is argued that there are no procedural safeguards governing
the actions of the private entities. Equally no remedy is provided
in case such body corporate or person fails or denies services. In
this hue, it is also argued that it is an excessive piece of
legislation inasmuch as taking the umbrage of ‘any law’, the
regulations etc. can be framed by including within its fold much
more than what is provided by Section 7 of the Aadhaar Act. It,
therefore, according to the petitioners, does not meet the test of
proportionality. Mr. Divan submits that Section 57 is also patently
unconstitutional inasmuch as it allows an unrestricted extension
of the Aadhaar platform to users who may be government
agencies or private sector operators. Moreover, this provision
Writ Petition (Civil) No. 494 of 2012 connected matters Page 429 of 567
enables the seeding of the Aadhaar number across serviceproviders and other gateways and thereby enables the
establishment of a surveillance state. The impugned provision
enables the spread of applications and Aadhaar dependent
delivery systems that are provided not from Consolidated Fund of
India resources but through any other means. He also submits
that section 57 also enables commercial exploitation of an
individual’s biometrics and demographic information by the
Respondents as well as private entities.
359) As mentioned above, the respondents contend that it is only an
enabling provision which gives further facilities to Aadhaar card
holder, as per her choice and is, thus, enacted for the benefit of
such individuals.
360) We have already discussed in detail the principles on which
doctrine of proportionality is built upon and the test which need to
be satisfied. To put in nutshell, the proportionality principles seek
to safeguard citizens from excessive Government measures. The
inquiry, in such cases, is that a particular measure must not be
disproportionate in two distinctive utilitarian senses:
(i) The cost or burdens of the measure must not clearly exceed
the likely benefits, which can be described as ‘ends’ or ‘ends-
Writ Petition (Civil) No. 494 of 2012 connected matters Page 430 of 567
benefits’ proportionality.(ii) The measure must not be clearly more costly or more
burdensome than equally alternative measures, which is also
described by some jurists as a concept of necessity and narrow
tailoring and can be referred to as ‘means’ or ‘alternative-means’
proportionality.
361) We have also discussed in detail the principle of proportionality
that is developed in certain foreign legal regimes, particularly
Germany and Canada. The Supreme Court of Canada in R. v.
Oakes114 developed a two-tier constitutional control test. Once
the claimant has proved a violation of a right guaranteed in the
charter, the government must satisfy two criteria to establish that
the limit on individual rights “can be demonstrably justified in a
free and democratic society.”
362) First, measures limiting a constitutionally protected right must
serve an important objective that “relate[s] to concerns which are
pressing and substantial in a free and democratic society.”
Legislation limiting the rights of English-speaking parents in
Quebec to educate their children in English-speaking schools 115
has been found lacking an important public objective. Likewise,
114(1986) 1 SCR 103
115Quebec Ass’n of Protestant Sch. Bds. v. Quebec (A.G.), (1984) 2 SCR 66
Writ Petition (Civil) No. 494 of 2012 connected matters Page 431 of 567
the Supreme Court of Canada was unable to find any legitimatepublic objective that justified denying protection to gays and
lesbians under Alberta’s human rights law in Vriend v. Alberta116.
In R. v. Zundel117, it also prohibited an intrusive use of a law that
was unrelated to the objectives originally contemplated by the
Parliament when that law was enacted.
363) Secondly, once an important public objective or end has been
established, the selected means to attain it must be “reasonable
and demonstrably justified.” The Court said in R. v. Big M Drug
Mart Ltd.118 that this determination involves “a form of
proportionality test”. Although, it varies depending on the facts of
the case, the test involves the balancing of public and individual
interests based on three principles, which are as follows:
(i) the means must be rationally related to the objective. The
court has infrequently struck down legislation for lack of any
rational relation to the objective pursued. It employs a rather
deferential and contextual approach to determine the rational
relation of a provision to the desired end.
(ii) The means should “impair ‘as little as possible’ the right or
freedom in question.” This is believe to be the decisive element
116(1998) 1 SCR 493
117(1992) 2 SCR 731
118 (1985) 1 SCR 295
Writ Petition (Civil) No. 494 of 2012 connected matters Page 432 of 567
of proportionality review. It requires that the legislature adopt theleast intrusive measure capable of attaining the desired objective.
(iii) The public objective and actual effects of the means
adopted for its attainment must be proportionate to an important
public end or objective. The court noted that even if the means
satisfies the first two criteria, it may be declared unconstitutional
in view of its disproportionate harmful effects on an individual.
364) Insofar as development of law in Germany is concerned, as
already discussed in detail, proportionality is defined “as an
expression of general right of the citizen towards the State that
his freedom should be limited by the public authorities only to the
extent indispensable for the protection of the public interest.” 119
The principle of proportionality in German law incorporates three
important subprinciples: suitability, necessity, and proportionality
in the narrower sense. According to the High Court of Germany,
any government interference with basic rights must be suitable
and necessary for reaching the ends sought. Its disadvantages to
individuals “are generally only permissible if the protection of
others or of the public interest requires them, after having due
regard to the principle of proportionality.”
119 See Nicholas Emiliou, The Principle of Proportionality in European Law: A comparative Study 5
(Kluwer Law Int’l. 1996).Writ Petition (Civil) No. 494 of 2012 connected matters Page 433 of 567
365) The European Union has, by and large, adopted the German
system. We have also taken note of the development of doctrine
of proportionality in India through various judgments120.
366) We may mention here that insofar as U.S. Supreme Court is
concerned, it has refused to apply the least intrusive test 121
Though there was a debate at the bar as to whether this Court
should adopt European approach of applying least intrusive test
or go by American approach which repeatedly refused to apply
this test. Without going into this debate, even when we apply the
accepted norms laid down by this Court in Modern Dental
College and Research Centre and K.S. Puttaswamy cases, we
are of the view that a part of Section 57 does not pass the muster
of proportionality doctrine.
367) The respondents may be right in their explanation that it is only
an enabling provision which entitles Aadhaar number holder to
take the help of Aadhaar for the purpose of establishing his/her
identity. If such a person voluntary wants to offer Aadhaar card
as a proof of his/her identity, there may not be a problem.
120 Om Kumar Ors. v. Union of India, (2001) 2 SCC 386 where R. v. Oakes was referred to and
relied upon; Teri Oat Estates (P) Ltd. v. U.T., Chandigarh Ors., (2004) 2 SCC 130 where the
Court stressed upon maintaining a proper balance between adverse effect which the legislation
or the administrative order may have on the rights, liberties or interests of persons keeping in
mind the purpose which they were intended to serve; Modern Dental College and Research
Centre and K.S. Puttaswamy amongst others.
121 Vernonia School District v. Wayne Acton, 515 US 646, 132 L.Ed. 2D 564, Board of Education of
Independent School District v. Lindsay Earls, 536 US 822153 L.Ed.2d. 735.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 434 of 567368) Section 59, which is the last provision in the Act is aimed at
validating actions taken by the Central Government pursuant to
notification dated January 28, 2009 till the passing of the Act. It
reads as under:
“59. Anything done or any action taken by the Central
Government under the Resolution of the Government of
India, Planning Commission bearing notification number A-43011/02/2009-Admin. I, dated the 28th January, 2009, or
by the Department of Electronics and Information
Technology under the Cabinet Secretariat Notification
bearing notification number S.O. 2492(E), dated the 12th
September, 2015, as the case may be, shall be deemed to
have been validly done or taken under this Act.”369) The challenge to this provision is on the premise that in the
regime which prevailed prior to the passing of the Act and the
enrolments into Aadhaar scheme were done, that happened
without the consent of the persons who sought enrolment and,
therefore, those enrolments cannot be validated by making such
a provision. It was argued that even the Act makes provisions for
informed consent which is to be obtained from individuals at the
time of enrolment and absence of such consent makes the very
enrolment as impermissible thereby violating the right to privacy
and such acts cannot be validated.
370) The contention of the respondents, on the other hand, is that by
the very nature of the provision, it is intended to be prospective in
Writ Petition (Civil) No. 494 of 2012 connected matters Page 435 of 567
nature with a clear purport in mind, namely, to validate thenotification dated August 21, 2009 vide which the Authority was
created and the Aadhaar scheme was launched by
administrative fiat. The purpose is to give it a statutory backing.
371) We find that Section 59 uses the expression ‘anything done or
any action under the resolution’. According to us, this
terminology used in the provision by the legislature is clearly to
cover all actions of the Authority including enrolment of
individuals into Aadhaar scheme. The words ‘shall be deemed to
have been validly done or taken under this Act’ at the end of the
Section put the things beyond any pale of doubt. The legislative
intent is clear, namely, to make the provision retrospective so as
to cover the actions of the Authority from the date of its
establishment. Reading the provision in the manner the
petitioners suggest would have the effect of annulling Section 59
itself. Such an interpretation cannot be countenanced. We are of
the opinion that case is squarely covered by the Constitution
Bench judgment of this Court in West Ramnad Electric
Distribution Co., Ltd. v. State of Madras Anr.122as well as
Bishambhar Nath Kohli Ors. v. State of Uttar Pradesh Ors.123.
122 (1963) 2 SCR 747
123 (1966) 2 SCR 158
Writ Petition (Civil) No. 494 of 2012 connected matters Page 436 of 567372) We would also like to point out that the submission of the
petitioners that a particular action or a provision or statute which
is hit by Article 14 cannot be allowed to be validated is repelled by
this Court in State of Mysore Anr. v. D. Achiah Chetty, Etc.124.
The legislature is, thus, empowered to incorporate deeming
provisions in a statute. This proposition has also been repeatedly
affirmed by this Court. We may refer in this behalf the decision in
State of Karnataka v. State of Tamil Nadu Ors. 125 will be of
relevance wherein the Court held as under:
“72. The second limb of submission of Mr Rohatgi as
regards the maintainability pertains to the language
employed under Section 6(2) of the 1956 Act, which reads
as follows:“6. (2) The decision of the Tribunal, after its
publication in the Official Gazette by the Central
Government under sub-section (1), shall have the
same force as an order or decree of the Supreme
Court.”73. Relying on Section 6(2), which was introduced by way
of the Amendment Act, 2002 (Act 14 of 2002) that came
into force from 6-8-2002, it is submitted by Mr Rohatgi that
the jurisdiction of this Court is ousted as it cannot sit over in
appeal on its own decree. The said submission is seriously
resisted by Mr Nariman and Mr Naphade, learned Senior
Counsel contending that the said provision, if it is to be
interpreted to exclude the jurisdiction of the Supreme Court
of India, it has to be supported by a constitutional
amendment adding at the end of Article 136(2) the words
“or to any determination of any tribunal constituted under
the law made by Parliament under Article 262(2)” and, in
such a situation, in all possibility such an amendment to the
Constitution may be ultra vires affecting the power of124(1969) 1 SCC 248
125(2017) 3 SCC 362
Writ Petition (Civil) No. 494 of 2012 connected matters Page 437 of 567
judicial review which is a part of basic feature of the
Constitution. The learned Senior Counsel for the
respondent has drawn a distinction between the
conferment and the exclusion of the power of the Supreme
Court of India by the original Constitution and any
exclusion by the constitutional amendment. Be that as it
may, the said aspect need not be adverted to, as we are
only required to interpret Section 6(2) as it exists today on
the statute book. The said provision has been inserted to
provide teeth to the decision of the Tribunal after its
publication in the Official Gazette by the Central
Government and this has been done keeping in view the
Sarkaria Commission's Report on Centre-State Relations
(1980). The relevant extract of the Sarkaria Commission's
Report reads as follows:“17.4.19. The Act was amended in 1980 and Section
6-A was inserted. This section provides for framing a
scheme for giving effect to a Tribunal's award. The
scheme, inter alia provides for the establishment of
the authority, its term of office and other conditions of
service, etc. But the mere creation of such an agency
will not be able to ensure implementation of a
Tribunal's award. Any agency set up under Section 6-
A cannot really function without the cooperation of the
States concerned. Further, to make a Tribunal's
award binding and effectively enforceable, it should
have the same force and sanction behind it as an
order or decree of the Supreme Court. We
recommend that the Act should be suitably amended
for this purpose.***
17.6.05. The Inter-State Water Disputes Act, 1956
should be amended so that a Tribunal's award has
the same force and sanction behind it as an order or
decree of the Supreme Court to make a Tribunal's
award really binding.”74. The Report of the Commission as the language would
suggest, was to make the final decision of the Tribunal
binding on both the States and once it is treated as a
decree of this Court, then it has the binding effect. It was
suggested to make the award effectively enforceable. The
language employed in Section 6(2) suggests that the
decision of the Tribunal shall have the same force as theWrit Petition (Civil) No. 494 of 2012 connected matters Page 438 of 567
order or decree of this Court. There is a distinction between
having the same force as an order or decree of this Court
and passing of a decree by this Court after due
adjudication. Parliament has intentionally used the words
from which it can be construed that a legal fiction is meant
to serve the purpose for which the fiction has been created
and not intended to travel beyond it. The purpose is to
have the binding effect of the Tribunal's award and the
effectiveness of enforceability. Thus, it has to be narrowly
construed regard being had to the purpose it is meant to
serve.75. In this context, we may usefully refer to the Principles
of Statutory Interpretation, 14th Edn. by G.P. Singh. The
learned author has expressed thus:“In interpreting a provision creating a legal fiction, the
court is to ascertain for what purpose the fiction is
created [State of Travancore-Cochin v. Shanmugha
Vilas Cashewnut Factory, AIR 1953 SC 333; State of
Bombay v. Pandurang Vinayak, AIR 1953 SC 244 :
1953 Cri LJ 1094] , and after ascertaining this, the
Court is to assume all those facts and consequences
which are incidental or inevitable corollaries to the
giving effect to the fiction. [East End Dwellings Co.
Ltd.v. Finsbury Borough Council, 1952 AC 109 :
(1951) 2 All ER 587 (HL); CIT v. S. Teja Singh, AIR
1959 SC 352] But in so construing the fiction it is not
to be extended beyond the purpose for which it is
created [Bengal Immunity Co. Ltd. v. State of Bihar,
AIR 1955 SC 661; CIT v. Amarchand N. Shroff, AIR
1963 SC 1448], or beyond the language of the
section by which it is created. [CIT v. Shakuntala, AIR
1966 SC 719; Mancheri Puthusseri Ahmed v.Kuthiravattam Estate Receiver, (1996) 6 SCC 185 :
AIR 1997 SC 208] It cannot also be extended by
importing another fiction. [CIT v. Moon Mills Ltd., AIR
1966 SC 870] The principles stated above are ‘well-
settled’. [State of W.B. v. Sadan K. Bormal, (2004) 6
SCC 59 : 2004 SCC (Cri) 1739 : AIR 2004 SC 3666]
A legal fiction may also be interpreted narrowly to
make the statute workable. [Nandkishore Ganesh
Joshi v. Commr., Municipal Corpn. of Kalyan and
Dombivali, (2004) 11 SCC 417 : AIR 2005 SC 34] ”76. In Aneeta Hada v. Godfather Travels and Tours
[Aneeta Hada v. Godfather Travels and Tours, (2012) 5
Writ Petition (Civil) No. 494 of 2012 connected matters Page 439 of 567
SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri)
241] , a three-Judge Bench has ruled thus: (SCC p. 681,
paras 37-38)“37. In State of T.N. v. Arooran Sugars Ltd. [State of
T.N. v. Arooran Sugars Ltd., (1997) 1 SCC 326] the
Constitution Bench, while dealing with the deeming
provision in a statute, ruled that the role of a provision
in a statute creating legal fiction is well settled.
Reference was made to Chief Inspector of Mines v.
Karam Chand Thapar [Chief Inspector of Mines v.
Karam Chand Thapar, AIR 1961 SC 838 : (1961) 2
Cri LJ 1], J.K. Cotton Spg. and Wvg. Mills Ltd. v.
Union of India[J.K. Cotton Spg. and Wvg. Mills Ltd. v.
Union of India, 1987 Supp SCC 350 : 1988 SCC (Tax)
26], M. Venugopal v. LIC [M. Venugopal v. LIC, (1994)
2 SCC 323 : 1994 SCC (LS) 664] and Harish
Tandon v. ADM, Allahabad [Harish Tandon v. ADM,
Allahabad, (1995) 1 SCC 537] and eventually, it was
held that when a statute creates a legal fiction saying
that something shall be deemed to have been done
which in fact and truth has not been done, the Court
has to examine and ascertain as to for what purpose
and between which persons such a statutory fiction is
to be resorted to and thereafter, the courts have to
give full effect to such a statutory fiction and it has to
be carried to its logical conclusion.38. From the aforesaid pronouncements, the principle
that can be culled out is that it is the bounden duty of
the court to ascertain for what purpose the legal
fiction has been created. It is also the duty of the
court to imagine the fiction with all real consequences
and instances unless prohibited from doing so. That
apart, the use of the term “deemed” has to be read in
its context and further, the fullest logical purpose and
import are to be understood. It is because in modern
legislation, the term “deemed” has been used for
manifold purposes. The object of the legislature has
to be kept in mind.”77. In Hari Ram [State of U.P. v. Hari Ram, (2013) 4 SCC
280 : (2013) 2 SCC (Civ) 583] , the Court has held that
(SCC p. 293, para 18) in interpreting the provision creating
a legal fiction, the court is to ascertain for what purpose the
fiction is created and after ascertaining the same, the court
is to assume all those facts and consequences which are
Writ Petition (Civil) No. 494 of 2012 connected matters Page 440 of 567
incidental or inevitable corollaries for giving effect to the
fiction.”373) There is yet another angle from which the matter can be looked
into. In any case, when the Aadhaar scheme/project under the
Act has been saved from the challenge to its constitutionality, we
see no reason to invalidate the enrolments which were made
prior to the passing of this Act as it would lead to unnecessary
burden and exercise of enrolling these persons all over again.
Instead the problem can be solved by eliciting ‘consent’ of all
those persons who were enrolled prior to the passing of the Act.
Since, we have held that enrolment is voluntary in nature, those
who specifically refuse to give the consent, they would be allowed
to exit from Aadhaar scheme. After all, by getting Aadhaar card,
an individual so enrolled is getting a form of identity card. It
would still be open to such an individual to make use of the said
Aadhaar number or not. Those persons who need to avail any
subsidy, benefit or service would need Aadhaar in any case. It
would not be proper to cancel their Aadhaar cards. If direction is
given to invalidate all those enrolments which were made prior to
2016 then such persons will have to undergo the rigours of
getting themselves enrolled all over again. On the other hand,
those who do not get any benefit of the nature prescribed under
Writ Petition (Civil) No. 494 of 2012 connected matters Page 441 of 567
Section 7 of the Act, it would always be open for them not tomake use of Aadhaar card or to make use of this card in a limited
sense, namely, showing it as a proof of their identity, without
undergoing any authentication process. Therefore, to a large
extent, it does not harm this later category as well.
We, thus, uphold the validity of Section 59. As a corollary,
Aadhaar for the period from 2009 to 2016 also stands validated.
LIMITED GOVERNMENT, GOOD GOVERNANCE,
CONSTITUTIONAL TRUST AND CONSTITUTIONALISM374) Mr. Shyam Divan and Mr. Gopal Subramanium, learned senior
counsel, submit that a fundamental feature of the Constitution is
the sovereignty of the people with limited government authority.
The Constitution limits governmental authority in various ways,
amongst them Fundamental Rights, the distribution of powers
amongst organs of the state and the ultimate check by way of
judicial review. Article 245 of the Constitution of India is an
express embodiment of the principle of limited government to the
legislature inasmuch as it subjects laws to the Constitution:
“(1) Subject to the provisions of this Constitution,
Parliament may make laws for the whole or any part of the
territory of India, and the Legislature of a State may make
laws for the whole or any part of the State.”375) The concept of limited government is the underlying difference
Writ Petition (Civil) No. 494 of 2012 connected matters Page 442 of 567
between a ‘Constitution’ and ‘Constitutionalism’. Mr. Shyam Divanrefers to the introductory chapter of his book Indian Constitutional
Law, Prof. M.P. Jain writes:
“Modern political thought draws a distinction between
‘Constitutionalism’ and ‘Constitution’. A country may have
the ‘Constitution’ but not necessary ‘Constitutionalism’. For
example, a country with a dictatorship, where the dictator’s
word is law, can be said to have a ‘Constitution’ but not
‘Constitutionalism’.The underlying difference between the two concepts is that
a Constitution ought not merely to confer powers on the
various organs of the government, but also seek to restrain
those powers. Constitutionalism recognises the need for
government but insists upon limitations being placed upon
governmental powers. Constitutionalism envisages checks
and balances and putting the powers of the legislature and
the executive under some restraints and not making them
uncontrolled and arbitrary. Unlimited powers jeopardise
freedom of the people ... If the Constitution confers
unrestrained power on either the legislature or the
executive, it might lead to an authoritarian, oppressive
government... to preserve the basic freedoms of the
individual, and to maintain his dignity and personality, the
Constitution should be permeated with ‘Constitutionalism’:
it should have some in-built restrictions on the powers
conferred by it on governmental organs.‘Constitutionalism’ connotes in essence limited government
or a limitation on government. Constitutionalism is the
antithesis of arbitrary powers…... As PROFESSOR VILE has remarked: “Western
institutional theorists have concerned themselves with the
problems of ensuring that the exercise of governmental
power...should be controlled in order that it should not itself
be destructive of the values it was intended to promote.”376) Mr. Divan then cited various paragraphs from the cases of State
of M.P. v. Thakur Bharat Singh126, (1967) 2 SCR 454, Gobind v.
126(1967) 2 SCR 454
Writ Petition (Civil) No. 494 of 2012 connected matters Page 443 of 567
State of M.P.127, S.P. Sampath Kumar v. Union of India128, Sub-Committee on Judicial Accountability v. Union of India129, I.R.
Coelho v. State of T.N.130, Nandini Sundar v. State of
Chhattisgarh131, which have reiterated and upheld the principle of
limited governments and constitutionalism as a fundamental
principle of our constitutional scheme.
377) He submitted that limited government is also enshrined within our
Preamble, which is the essence of the Constitution of India, and
entitles every individual citizen and the citizenry collectively to
live, work, and enjoy their varied lives without being under the
continuous gaze of the State. He cites Chelameswar, J. in K.S.
Puttaswamy wherein he observed:
“The Constitution of any country reflects the aspirations
and goals of the people of that country (…) The
Constitution cannot be seen as a document written in ink to
replace one legal regime by another. It is a testament
created for securing the goals professed in the Preamble.Part-III of the Constitution is incorporated to ensure
achievement of the objects contained in the Preamble. ‘We
the People’ of this country are the intended beneficiaries of
the Constitution. Man is not a creature of the State. Life
and liberty are not granted by the Constitution. Constitution
only stipulates the limitations on the power of the State to
interfere with our life and liberty. Law is essential to enjoy
the fruits of liberty; it is not the source of liberty and
emphatically not the exclusive source.”127(1975) 2 SCC 148
128(1987) 1 SCC 124
129(1991) 4 SCC 699
130(2007) 2 SCC 1
131 (2011) 7 SCC 547
Writ Petition (Civil) No. 494 of 2012 connected matters Page 444 of 567378) The Directive Principles of State Policy also envisage a limited
government. Violation of fundamental rights cannot be justified by
the State on grounds of administrative convenience in meeting its
obligations under the Directive Principles of State Policy.
Protection of fundamental rights is essential for public welfare
contemplated under the Directive Principles of State Policy. This
has been upheld in various cases such as Minerva Mills Ltd. v.
Union of India132, where Y.V. Chandrachud, C.J observed:
“57. (…) just as the rights conferred by Part III would be
without a radar and a compass if they were not geared to
an ideal, in the same manner the attainment of the ideals
set out in Part IV would become a pretence for tyranny if
the price to be paid for achieving that ideal is human
freedoms.”379) Similarly, in Kesavananda Bharati v. State of Kerala133, S.M. Sikri,
C.J., inter alia, held:
“209. ...In my view that meaning would be appropriate
which would enable the country to achieve a social and
economic revolution without destroying the democratic
structure of the Constitution and the basic inalienable rights
guaranteed in Part III and without going outside the
contours delineated in the Preamble.xx xx xx
299. I am unable to hold that these provisions show that
some rights are not natural or inalienable rights. As a
matter of fact, India was a party to the Universal
Declaration of Rights which I have already referred to and
that Declaration describes some fundamental rights as132 (1980) 3 SCC 625
133 (1973) 4 SCC 225
Writ Petition (Civil) No. 494 of 2012 connected matters Page 445 of 567
inalienable. Various decisions of this Court describe
fundamental rights as ‘natural rights’ or ‘human rights’ ...”380) Mr. Divan quotes Seervai in his book Constitutional Law of
India134: A Critical Commentary where he writes:
“17.14... In India “Public Welfare” and “Welfare State”
became in the language of the Chaldean Oracle, “God-
given names of unexplained power”, which absolved
judges from a critical examination of the nature of
fundamental rights, and why they were made legally
enforceable and the nature of directive principles and why
they were made legally unenforceablexx xx xx
17.20...it is simply not true that persons entrusted with the
duty of implementing the directives will strive in good faith
to implement them according to the expectations of the
community.xx xx xx
The question then arises: What is the agency for bringing
about social and economic changes which would enable a
welfare state to be created? The answer is, legislative and
executive power controlled by constitutional limitations
including fundamental rights …xx xx xx
17.30 ... the conferment of legally enforceable fundamental
rights by our Constitution on persons, citizens and groups
of persons was the most effective way of securing public
welfare...Anything which enables those objectives to be
realised as fully as is practicable must, broadly speaking,
subserve public welfare...However, the Preamble, and to a
large extent, Fundamental Rights, enable us to say that our
Constitution has rejected a totalitarian form of government
in favour of a liberal democracy. The emphasis of the
Preamble is on securing the dignity of the individual …
134
H.M. Seervai, Constitutional Law of India: A Critical Commentary (N.M. Tripathi Private
Limited, Bombay, 4th Ed., Vol. 2, 1993) at pages 1928-1937.Writ Petition (Civil) No. 494 of 2012 connected matters Page 446 of 567
xx xx xx
17.34 But can fundamental rights acting as limitations on
legislative and executive power secure public welfare as
the framers of our Constitution intended? The answer is
“Yes”. For, when during the Emergency of 1975-77, almost
all the fetters on legislative power became unenforceable,
the public welfare suffered gravely and our free democratic
constitution was twisted out of shape and came near to a
dictatorship or a Police State ...”381) The principles of constitutional trust, constitutional morality and
good governance are also deeply intertwined with the principle of
minimum government. In Manoj Narula v. Union of India135, the
Court, inter alia, held:
“1. … Democracy, which has been best defined as the
government of the people, by the people and for the
people, expects prevalence of genuine orderliness, positive
propriety, dedicated discipline and sanguine sanctity by
constant affirmance of constitutional morality which is the
pillar stone of good governance.xx xx xx
75. The principle of constitutional morality basically means
to bow down to the norms of the Constitution and not to act
in a manner which would become violative of the rule of
law or reflectible of action in an arbitrary manner. It actually
works at the fulcrum and guides as a laser beam in
institution building. The traditions and conventions have to
grow to sustain the value of such a morality. The
democratic values survive and become successful where
the people at large and the persons in charge of the
institution are strictly guided by the constitutional
parameters without paving the path of deviancy and
reflecting in action the primary concern to maintain
institutional integrity and the requisite constitutional
restraints. Commitment to the Constitution is a facet of
constitutional morality.”135 (2014) 9 SCC 1
Writ Petition (Civil) No. 494 of 2012 connected matters Page 447 of 567
xx xx xx82. In a democracy, the citizens legitimately expect that the
Government of the day would treat the public interest as
the primary one and any other interest secondary. The
maxim salus populi suprema lex, has not only to be kept in
view but also has to be revered. The faith of the people is
embedded in the root of the idea of good governance
which means reverence for citizenry rights, respect for
fundamental rights and statutory rights in any governmental
action, deference for unwritten constitutional values,
veneration for institutional integrity, and inculcation of
accountability to the collective at large. It also conveys that
the decisions are taken by the decision-making authority
with solemn sincerity and policies are framed keeping in
view the welfare of the people, and including all in a
homogeneous compartment. The concept of good
governance is not a Utopian conception or an abstraction.
It has been the demand of the polity wherever democracy
is nourished. The growth of democracy is dependent upon
good governance in reality and the aspiration of the people
basically is that the administration is carried out by people
with responsibility with service orientation.83. … The issue of constitutional trust arises in the context
of the debate in the Constituent Assembly that had taken
place pertaining to the recommendation for appointment of
a Minister to the Council of Ministers. Responding to the
proposal for the amendment suggested by Prof. K.T. Shah
with regard to the introduction of a disqualification of a
convicted person becoming a Minister, Dr B.R. Ambedkar
had replied: (CAD Vol. VII, p. 1160)“His last proposition is that no person who is
convicted may be appointed a Minister of the State.Well, so far as his intention is concerned, it is no
doubt very laudable and I do not think any Member of
this House would like to differ from him on that
proposition. But the whole question is this: whether
we should introduce all these qualifications and
disqualifications in the Constitution itself. Is it not
desirable, is it not sufficient that we should trust the
Prime Minister, the legislature and the public at large
watching the actions of the Ministers and the actions
of the legislature to see that no such infamous thing is
done by either of them?I think this is a case which
Writ Petition (Civil) No. 494 of 2012 connected matters Page 448 of 567
may eminently be left to the good sense of the Prime
Minister and to the good sense of the legislature with
the general public holding a watching brief upon
them. I therefore say that these amendments are
unnecessary.”382) It is submitted by Mr. Divan that the Aadhaar project is destructive
of limited government, constitutionalism and constitutional trust.
The Constitution is not about the power of the State, but about
the limits on the power of the State. Post Aadhaar, the State will
completely dominate the citizen and alter the relationship
between citizen and State. The features of a Totalitarian State is
seen from:
(a) A person cannot conduct routine activities such as operating
a bank account, holding an investment in mutual funds, receiving
government pension, receiving scholarship, receiving food
rations, operating a mobile phone without the State knowing
about these activities.(Sections 7, 32 and 57 of the Aadhaar Act).
(b) The State can build a profile of the individual based on the
trail of authentication from which the nature of the citizen’s activity
can be determined. (Sections 2(d) and 32 of the Aadhaar Act and
Regulation 20, 26 and 27 of the Aadhaar (Authentication)
Regulation, 2016.
(c) By disabling Aadhaar the State can cause the civil death of
Writ Petition (Civil) No. 494 of 2012 connected matters Page 449 of 567
the person.(Sections 23(2)(g) of the Aadhaar Act and Regulation27 and 28 of the Aadhaar (Enrolment and Updates) Act, 2016).
(d) By making Aadhaar compulsory for other activities such as
air travel, rail travel, directorship in companies, services and
benefits extended by State governments and municipal
corporations etc. there will be virtually no zone of activity left
where the citizen is not under the gaze of the State. This will have
a chilling effect on the citizen.
(e) In such a society, there is little or no personal autonomy.
The State is pervasive, and dignity of the individual stands
extinguished.
(f) This is an inversion of the accountability in the Right to
Information age: instead of the State being transparent to the
citizen, it is the citizen who is rendered transparent to the State.
383) Mr. Sibal also added that accountability of governments and the
state is a phenomenon which is accepted across the world. In
furtherance of the Right to information Act, 2005 was passed
intended to ensure transparency and state accountability.
Through Aadhaar, on the other hand, the state seeks
transparency and accountability of an individual’s multifarious
Writ Petition (Civil) No. 494 of 2012 connected matters Page 450 of 567
activities in the course of his everyday life. This fundamentallyalters the relationship between the citizen and the State and
skews the balance of power in favour of the State, which is
anathema to the Constitution.
384) There is no dispute about the exposition of the principles of
limited government and good governance, etc., as highlighted by
the learned counsel for the petitioners and noted above.
We may add that we are the Republic and it becomes the
duty of the Court to keep it. That can be achieved by asking the
stakeholders to follow the Constitution, which we have. There are
six key constitutional notions, a brilliant exposition whereof has
been provided in the case of Manoj Narula v. Union of India136.
The idea of constitutional renaissance was first sounded in the
said judgment. It is further elaborated in the case of Government
of NCT of Delhi v. Union of India137 in the opinion penned down by
one of us138. It stands severally described now as “a constant
awakening as regards the text, context, perspective, purpose,
and the rule of law”, an awakening that makes space for a
“resurgent constitutionalism” and “allows no room for absolutism”
nor any “space for anarchy”. It is held, therein the term “rational
136 (2014) 9 SCC 1
137 (2018) SCC Online SC 661
138 Dipak Misra, CJI
Writ Petition (Civil) No. 494 of 2012 connected matters Page 451 of 567
anarchism” has “no entry in the field of constitutional governanceor the rule of law” and by the same token constitutional text and
context resolutely repudiate the lineages of absolutism or the
itineraries of dictatorship. One may then say that
“constitutionalism” is the space between “absolutism” and
“anarchy” and its constant repair and renewal is the prime
function of adjudication.
385) In an illuminating Article titled ‘A Constitutional Renaissance’ on
the aforesaid verdict authored by Prof. Upendra Baxi 139, the
learned Professor has made following pertinent comments:
“Awakening is a constant process; renaissance has a
beginning but knows no end because everyday fidelity to
the vision, spirit and letter of the Constitution is the
supreme obligation of all constitutional beings. One ought
to witness in daily decisions an “acceptance of
constitutional obligations” not just within the text of the
Constitution but also its “silences”. To thus reawaken is to
be “obeisant to the constitutional conscience with a sense
of constitutional vision”. Second, courts should adopt that
approach to interpretation which “glorifies the democratic
spirit of the Constitution”. “Reverence” for the Constitution
(or constitutionalism) is the essential first step towards
constitutional renaissance. Third, people are the true
sovereigns, never to be reduced to the servile status of
being a subject; rather as beings with rights, they are the
source of trust in governance and founts of legitimacy. The
relatively autonomous legislative, executive, administrative
and adjudicatory powers are legitimate only when placed at
the service of constitutional ends. All forms of public power
are held in trust. And political power is not an end but a
means to constitutional governance.”139 Published in The Indian Express on July 16, 2018
Writ Petition (Civil) No. 494 of 2012 connected matters Page 452 of 567386) Since the arguments on limited government advanced by Mr.
Shyam Divan were the same as advanced by him during the
hearing of Binoy Viswam, our purpose would be served by
reproducing the following discussion from the said judgment:
“85. There cannot be any dispute about the manner in
which Mr Shyam Divan explained the concept of “limited
Government” in his submissions. Undoubtedly, the
Constitution of India, as an instrument of governance of the
State, delineates the functions and powers of each wing of
the State, namely, the Legislature, the Judiciary and the
Executive. It also enshrines the principle of separation of
powers which mandates that each wing of the State has to
function within its own domain and no wing of the State is
entitled to trample over the function assigned to the other
wing of the State. This fundamental document of
governance also contains principle of federalism wherein
the Union is assigned certain powers and likewise powers
of the State are also prescribed. In this context, the Union
Legislature i.e. Parliament, as well as the State
Legislatures are given specific areas in respect of which
they have power to legislate. That is so stipulated in
Schedule VII to the Constitution wherein List I enumerates
the subjects over which Parliament has the dominion, List II
spells out those areas where the State Legislatures have
the power to make laws while List III is the Concurrent List
which is accessible both to the Union as well as the State
Governments. The scheme pertaining to making laws by
Parliament as well as by the legislatures of the State is
primarily contained in Articles 245 to 254 of the
Constitution. Therefore, it cannot be disputed that each
wing of the State has to act within the sphere delineated for
it under the Constitution. It is correct that crossing these
limits would render the action of the State ultra vires the
Constitution. When it comes to power of taxation,
undoubtedly, power to tax is treated as sovereign power of
any State. However, there are constitutional limitations
briefly described above.86. In a nine Judge Bench decision of this Court in Jindal
Stainless Ltd. Anr. v. State of Haryana Ors. discussion
on these constitutional limitations are as follows:Writ Petition (Civil) No. 494 of 2012 connected matters Page 453 of 567
“20. Exercise of sovereign power is, however, subject
to Constitutional limitations especially in a federal
system like ours where the States also to the extent
permissible exercise the power to make laws including
laws that levy taxes, duties and fees. That the power
to levy taxes is subject to constitutional limitations is
no longer res-integra. A Constitution Bench of this
Court has in Synthetics and Chemicals Ltd. v. State of
U.P. (1990) 1 SCC 109 recognised that in India the
Centre and the States both enjoy the exercise of
sovereign power, to the extent the Constitution confers
upon them that power. This Court declared:“56 … We would not like, however, to
embark upon any theory of police power
because the Indian Constitution does not
recognise police power as such. But we must
recognise the exercise of Sovereign power
which gives the State sufficient authority to
enact any law subject to the limitations of the
Constitution to discharge its functions.
Hence, the Indian Constitution as a
sovereign State has power to legislate on all
branches except to the limitation as to the
division of powers between the Centre and
the States and also subject to the
fundamental rights guaranteed under the
Constitution. The Indian States, between the
Centre and the States, has sovereign power.
The sovereign power is plenary and inherent
in every sovereign State to do all things
which promote the health, peace, morals,
education and good order of the people.Sovereignty is difficult to define. This power
of sovereignty is, however, subject to
constitutional limitations.”This power,
according to some constitutional authorities,
is to the public what necessity is to the
individual. Right to tax or levy impost must be
in accordance with the provisions of the
Constitution.”21. What then are the Constitutional limitations on the
power of the State legislatures to levy taxes or for that
matter enact legislations in the field reserved for them
under the relevant entries of List II and III of the
Seventh Schedule. The first and the foremost of these
Writ Petition (Civil) No. 494 of 2012 connected matters Page 454 of 567
limitations appears in Article 13 of the Constitution of
India which declares that all laws in force in the
territory of India immediately before the
commencement of the Constitution are void to the
extent they are inconsistent with the provisions of Part
III dealing with the fundamental rights guaranteed to
the citizens. It forbids the States from making any law
which takes away or abridges, any provision of Part III.
Any law made in contravention of the said rights shall
to the extent of contravention be void. There is no gain
saying that the power to enact laws has been
conferred upon the Parliament subject to the above
Constitutional limitation. So also in terms of Article
248, the residuary power to impose a tax not
otherwise mentioned in the Concurrent List or the
State List has been vested in the Parliament to the
exclusion of the State legislatures, and the States'
power to levy taxes limited to what is specifically
reserved in their favour and no more.22. Article 249 similarly empowers the Parliament to
legislate with respect to a matter in the State List for
national interest provided the Council of States has
declared by a resolution supported by not less than
two-thirds of the members present and voting that it is
necessary or expedient in national interest to do so.
The power is available till such time any resolution
remains in force in terms of Article 249(2) and the
proviso thereunder.23. Article 250 is yet another provision which
empowers the Parliament to legislate with respect to
any matter in the State List when there is a
proclamation of emergency. In the event of an
inconsistency between laws made by Parliament
under Articles 249 and 250, and laws made by
legislature of the States, the law made by Parliament
shall, to the extent of the inconsistency, prevail over
the law made by the State in terms of Article 251.24. The power of Parliament to legislate for two or more
States by consent, in regard to matters not otherwise within
the power of the Parliament is regulated by Article 252,
while Article 253 starting with a non-obstante clause
empowers Parliament to make any law for the whole
country or any part of the territory of India for implementing
any treaty, agreement or convention with any other country
Writ Petition (Civil) No. 494 of 2012 connected matters Page 455 of 567
or countries or any decision made at any international
conference, association or other body.”87. Mr. Divan, however, made an earnest endeavour to
further broaden this concept of ‘limited Government’ by
giving an altogether different slant. He submitted that there
are certain things that the States simply cannot do because
the action fundamentally alters the relationship between
the citizens and the State. In this hue, he submitted that it
was impermissible for the State to undertake the exercise
of collection of bio-metric data, including fingerprints and
storing at a central depository as it puts the State in an
extremely dominant position in relation to the individual
citizens. He also submitted that it will put the State in a
position to target an individual and engage in surveillance
thereby depriving or withholding the enjoyment of his rights
and entitlements, which is totally impermissible in a country
where governance of the State of founded on the concept
of ‘limited Government’. Again, this concept of limited
government is woven around Article 21 of the Constitution.88. Undoubtedly, we are in the era of liberalised
democracy. In a democratic society governed by the
Constitution, there is a strong trend towards the
constitutionalisation of democratic politics, where the
actions of democratically elected Government are judged in
the light of the Constitution. In this context, judiciary
assumes the role of protector of the Constitution and
democracy, being the ultimate arbiter in all matters
involving the interpretation of the Constitution.”387) We may observe that the matter is examined keeping in view the
fundamental principles of constitutionalism in mind, and more
particularly the principle that the concept of ‘limited government’
is applicable having regard to the fact that the three limbs of the
State are to act within the framework of a written Constitution
which assigns specific powers to each of the wing of the State
and this presupposes that the sovereign power of the Parliament
Writ Petition (Civil) No. 494 of 2012 connected matters Page 456 of 567
is circumscribed by the provisions of the Constitution and thelegislature is supposed to Act within the boundaries delineated by
the Constitution. The constitutionalism, which is the bedrock of
rule of law, is to be necessarily adhered to by the Parliament.
Further, the power of judicial review which is accorded to the
courts can be exercised to strike down any legislation or
executive action if it is unconstitutional.
388) When we examine this issue in the context of discussion on
various issues already dealt with, it is difficult to agree with the
sweeping proposition advanced by the petitioners that the
Aadhaar project is destructive of limited government and
constitutional trust. These submissions are premised on the
architecture of the Aadhaar being constitutionally intrusive which
threatens the autonomy of individuals and has a tendency of
creating a surveillance state. In support, the petitioners have
referred to certain provisions of the Aadhaar Act. Some
provisions which we found offending are struck down, some
others have been read down and some are tweaked with. We
feel that the statutory regime that would now govern the citizenry,
wards off such a danger, if any.
MONEY BILL
Writ Petition (Civil) No. 494 of 2012 connected matters Page 457 of 567
Is the Aadhaar Act a validly enacted law having been passed as
a Money Bill?389) Mr. Chidambaram and Mr. Datar had laid attack on the Act on the
ground that the Bill it could not have been introduced and passed
by the Parliament as Money Bill. It was argued that the Aadhaar
(Targeted Delivery of Financial and Other Subsidies, Benefits and
Services) Bill, 2016 (for short the ‘Bill’) was wrongly certified as
Money Bill under Article 110 of the Constitution of India by the
Hon’ble Speaker of the Lok Sabha, thereby, virtually excluding
the Rajya Sabha from the legislative process and depriving the
Hon’ble President of his power of return. This, according to them,
is illegal and grossly violates the constitutional provisions.
390) It was submitted that Bills are of three kinds:
(i) Ordinary Bills (Article 107);(ii) Financial Bills viz. subset of Ordinary Bills (Article 117);
(iii) Money Bill viz. subset of Financial Bills (Article 110).
391) Article 110 reads as under:
“Article 110 - Definition of "Money Bills".-
(1) For the purposes of this Chapter, a Bill shall be deemed
to be a Money Bill if it contains only provisions dealing with
all or any of the following matters, namely:--(a) the imposition, abolition, remission, alteration or
regulation of any tax;Writ Petition (Civil) No. 494 of 2012 connected matters Page 458 of 567
(b) the regulation of the borrowing of money or the giving of
any guarantee by the Government of India, or the
amendment of the law with respect to any financial
obligations undertaken or to be undertaken by the
Government of India;(c) the custody of the Consolidated Fund or the
Contingency Fund of India, the payment of moneys into or
the withdrawal of moneys from any such Fund;(d) the appropriation of moneys out of the Consolidated
Fund of India;(e) the declaring of any expenditure to be expenditure
charged on the Consolidated Fund of India or the
increasing of the amount of any such expenditure;(f) the receipt of money on account of the Consolidated
Fund of India or the public account of India or the custody
or issue of such money or the audit of the accounts of the
Union or of a State; or(g) any matter incidental to any of the matters specified in
sub-clauses (a) to (f).(2) A Bill shall not be deemed to be a Money Bill by reason
only that it provides for the imposition of fines or other
pecuniary penalties, or for the demand or payment of fees
for licenses or fees for services rendered, or by reason that
it provides for the imposition, abolition, remission, alteration
or regulation of any tax by any local authority or body for
local purposes.(3) If any question arises whether a Bill is a Money Bill or
not, the decision of the Speaker of the House of the People
thereon shall be final.(4) There shall be endorsed on every Money Bill when it is
transmit led to the Council of States under article 109, and
when it is presented to the President for assent under
article 111, the certificate of the Speaker of the House of
the People signed by him that it is a Money Bill.”392) It was submitted that a Money Bill may provide for matters
Writ Petition (Civil) No. 494 of 2012 connected matters Page 459 of 567
enumerated in Clause (a) to (f) of Article 110. Clause (g) hasbeen added because it may be necessary to include provisions
that are only “incidental” to any of matters specified in (a) to (f).
The learned counsel pointed out the distinguishing features of a
Money Bill are as below:
(i) It shall be introduced only on the recommendation of
President (Article 117(1)).
(ii) It shall be introduced only in the House of the People
(Article 117(1), 109(1)).
(iii) A Money Bill is transmitted by the Lok Sabha to the Rajya
Sabha. Rajya Sabha thereafter may only make recommendations
and return the Bill and not make amendments. The
recommendations may or may not be accepted by the Lok
Sabha. If the Money Bill is not returned within 14 days, it is
deemed to have been passed by both the Houses. (Article 109(2)
to Article 109(5)).
(iv) Upon submission of a Money Bill to the President for his
assent, the President cannot return the Money Bill with the
message requesting that the Houses will reconsider the Bill
(proviso to Article 111).
Hence, it is manifest that a Money Bill that a Money Bill is a
special kind of Bill that has the effect of denuding the power of the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 460 of 567
Rajya Sabha of its power to amend the Bill and depriving thePresident of his power to return the bill for reconsideration. On
that premise, it was argued that the provisions of a Money Bill
must be construed very strictly and narrowly and only if a Bill falls
strictly under definition of a Money Bill (Article 110), it can be
passed as a Money Bill. If the provisions of the Bill fall outside
the strict definition of Money Bill, the said Bill cannot be passed
as a Money Bill.
393) Great emphasis was laid on the word ‘only’ appearing in Article
110 which signified that to qualify as a Money Bill, it has to strictly
fall within one or more of the clauses of Article 110. For the
interpretation of the word ‘only’, reference was made to the
judgment in the case of Hari Ram Ors. v. Babu Gokul
Prasad140:
“3. Section 166 of M.P. Land Revenue Code, 1954 reads
as under:“166. Any person who holds land for agricultural
purposes from a tenure holder and who is not an
occupancy tenant under Section 169 or a protected
lessee under the Berar Regulation of Agricultural
Leases Act, 1951, shall be ordinary tenant of such
land.Explanation.— For the purposes of this section —
140(1991) Supp. 2 SCC 608
Writ Petition (Civil) No. 494 of 2012 connected matters Page 461 of 567(i) any person who pays lease money in respect of
any land in the form of crop share shall be deemed to
hold such land;(ii) any person who cultivates land in partnership with
the tenure holder shall not be deemed to hold such
land;(iii) any person to whom only the right to cut grass or
to graze cattle or to grow singhara (Trapa bispinosa)
or to propagate or collect lac is granted in any land
shall not be deemed to hold such land for agricultural
purposes.”A bare perusal of the section indicates that any tenant
other than occupancy tenant if he held the land for
agricultural purposes from a tenure holder, then he became
ordinary tenant by operation of law. Doubt if any stood
removed by the explanation which clarifies the class of
persons who could be deemed to be covered under a
tenant other than occupancy tenant. Since it has been
found that the land was let out to appellant not only for the
right to cut grass, he could not be held to be a person who
was not holding the land for agricultural purposes. The
word ‘only’ in Explanation (iii) is significant. It postulates
that entire land should have been used for the purposes
enumerated. If part of the land was used for cultivation,
then the land could not be deemed to have been granted
for cutting grass only. It has been found that out of 5 and
odd acres of land, the land under cultivation was 2 acres.
Therefore, the negative clause in Explanation (iii) did not
apply and the appellant became ordinary tenant under
Section 166. In 1959, M.P. Land Revenue Code was
enacted and Section 185 provided for the persons who
could be deemed to be occupancy tenants. Its relevant part
is extracted below:“185. Occupancy tenants.— (1) Every person who at
the coming into force of this Code holds—(i) in the Mahakoshal Region—
(a) ***
(b) ***
(c) any land as an ordinary tenant as defined in the
Madhya Pradesh Land Revenue Code, 1954 (2 of
1955);”394) The learned counsel also referred to M/s. Saru Smelting (P) Ltd.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 462 of 567
v. Commissioner of Sales Tax, Lucknow141:“3. The contention of the respondent is that Phosphorous
Bronze is an alloy containing not only the metals
mentioned in the aforesaid entry but Phosphorous also and
as such it is not covered under the aforesaid entry. The
words “other alloy containing any of these metals only”
mean that the alloy made of these metals i.e. copper, tin,
nickel or zinc only and that alone is covered under the said
entry. It was submitted that if any other metal or substance
is included in such an alloy, the same would not be covered
under the aforesaid entry.xx xx xx
5. We were referred to various dictionary meanings of the
words ‘Phosphorous Bronze’ which have been noticed by
the learned Judge dealing with the case in the High Court.
We are really concerned with the interpretation of the entry.The emphasis in the entry is — either it should be pure
copper, tin, nickel or zinc and if it is an alloy containing two
or more metals, it must be an alloy containing these metals
only. The expression “only” is very material for
understanding the meaning of the entry. Since the alloy in
dispute contains Phosphorous, may be in a very small
quantity, it cannot fall within Entry 2(a) of the aforesaid
Notification. The appeal consequently fails and is
dismissed with costs.”395) In order to demonstrate as to what would be the nature and
scope of the Money Bill, reference was made to the following
literature:
“RELEVANT EXCERPTS FROM ERSKINE MAY’S
“PARLIAMENTARY PRACTICE”Definition of Money Bill –
Section 1(2) of the Act defines a ‘Money Bill’ as a public bill
which in the opinion of the Speaker of the House of
Commons contains only provisions dealing with all or any
of the following subjects, namely, the imposition, repeal,
remission, alteration, or regulation of taxation; the
imposition for the payment of debt or other financial
141(1993) Supp. 3 SCC 97
Writ Petition (Civil) No. 494 of 2012 connected matters Page 463 of 567
purposes of charges on the Consolidated Fund or the
national Loans Fund, or on money provided by Parliament
or the variation or repeal of any such charges; Supply; the
appropriation, receipt, custody, issue or audit of accounts
of public money; the raising or guarantee of any loan or the
repayment thereof; or subordinate matters incidental to
those subjects or any of them. For the purposes of this
definition the expressions ‘taxation’, ‘public money’, and
‘loan’ respectively do not include any taxation, money, or
loan raised by local authorities or bodies for local purposes,
matters which, on the other hand, are included within the
scope of Commons financial privilege.PROCEDURE IN PASSING MONEY BILL
A ‘Money Bill’ which has been passed by the House of
Commons and sent up to the House of Lords at least one
month before the end of the session, but is not passed by
the House of Lords without amendment within one month
after it is so sent up, is, unless the House of Commons
direct to the contrary, to be presented for the Royal Assent
and becomes an Act of Parliament on the Royal Assent
being signified to it. A ‘Money Bil’, when it is sent up to the
House of Lords and when it is presented to Her Majesty,
must be endorsed with the Speaker’s certificate that it is
such a bill. Before giving this certificate the Speaker is
directed to consult, if practicable, those two members of
the Panel of Chairs who are appointed for the purpose at
the beginning of each session by the Committee of
Selection.When the Speaker has certified a bill to be a ‘Money Bill’
this is recorded in the Journal; and Section 3 of the
Parliament Act 1911 stipulates that such certificate is
conclusive for all purposes and may not be questioned in a
court of law.No serious practical difficulty normally arises in deciding
whether a particular bill is or is not a ‘Money Bill’; and
criticism has seldom been voiced of the Speaker’s action in
giving or withholding a certificate. A bill which contains any
of the enumerated matters and nothing besides is
indisputably a ‘Money bill’. If it contains any other matters,
then, unless these are ‘subordinate matters incidental to’
any of the enumerated matters so contained in the bill, the
bill is not a ‘Money bill’. Furthermore, even if the main
object of a bill is to create a new charge on the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 464 of 567
Consolidated Fund or on money provided by Parliament,
the bill will not be certified if it is apparent that the primary
purpose of the new charge is not purely financial.”THE PARLIAMENTARY ACT, 1911
Chapter 13 of the Parliament Act, 1911 wherein Money Bill
is defined as under:“(1) …
(2) A Money Bill means a Public Bill which in the opinion of
the Speaker of the House of Commons contains only
provisions dealing with all or any of the following subjects,
namely, the imposition, repeal, remission, alteration, or
regulation of taxation; the imposition for the payment of
debt or other financial purposes of charges on the
Consolidated Fund, or on money provided by Parliament,
or the variation or repeal of any such charges; supply; the
appropriation, receipt, custody, issue or audit of accounts
of public money; the raising or guarantee of any loan or the
repayment thereof; or subordinate matters incidental to
those subjects or any of them. In this subsection the
expressions “taxation”, “public money”, and “loan”
respectively do not include any taxation, money, or loan
raised by local authorities or bodies for local purposes.(3) There shall be endorsed on every Money Bill when it is
sent up to the House of Lords and when it is presented to
His Majesty for assent the certificate of the Speaker of the
House of Commons signed by him that it is a Money Bill.
Before giving his certificate, the Speaker shall consult, if
practicable, two members to be appointed from the
Chairmen’s Panel at the beginning of each Session by the
Committee of Selection.”RELEVANT EXCERPTS FROM THE CONSTITUTION OF
IRELAND(1) A Money Bill means a Bill which contains only
provisions dealing with all or any of the following matters,
namely, the imposition, repeal, remission, alteration or
regulation of taxation; the imposition for the payment of
debt or other financial purposes of charges on public
moneys or the variation or repeal of any such charges;
supply, the appropriation, receipt, custody, issue or audit of
accounts of public money; the raising or guarantee of any
Writ Petition (Civil) No. 494 of 2012 connected matters Page 465 of 567
loan or the repayment thereof; matters subordinate and
incidental to these matters or any of them.(2) In this definition the expressions “taxation”, “public
money” and “loan” respectively do not include any taxation,
money or loan raised by local authorities or bodies for local
purposes.RELEVANT EXCERPTS FROM KAUL SHAKDER’S
“PRACTICE AND PROCEDURE OF PARLIAMENT”, LOK
SABHA SECRETARIAT AT INDIASpeaker Mavalankar observed as follows:
“Prima facie, it appears to me that the words of
article 110 (imposition, abolition, remission, alteration,
regulation of any tax) are sufficiently wide to make the
Consolidated Bill a Money Bill. A question may arise as to
what is the exact significance or scope of the word ‘only’
and whether and how far that word goes to modify or
control the wide and general words ‘imposition, abolition,
remission, etc.’.I think, prima facie, that the word ‘only’ is not
restrictive of the scope of the general terms. If a Bill
substantially deals with the imposition, abolition, etc., of a
tax, then the mere fact of the inclusion in the Bill of other
provisions which may be necessary for the administration
of that tax or, I may say, necessary for the achievement of
the objective of the particular Bill, cannot take away the Bill
from the category of Money Bills. One has to look to the
objective of the bill. Therefore, if the substantial provisions
of the Bill aim at imposition, abolition, etc., of any tax then
the other provisions would be incidental and their inclusion
cannot be said to take it away from the category of a
Money Bill. Unless one construes the word ‘only’ in this
way it might lead to make article 110 a nullity. No tax can
be imposed without making provisions for its assessment,
collection, administration, reference to courts or tribunals,
etc, one can visualise only one section in a Bill imposing
the main tax and there may be fifty other sections which
may deal with the scope, method, manner, etc., of that
imposition.Further, we have also to consider the provisions of
sub-clause (2) of article 110; and these provisions may beWrit Petition (Civil) No. 494 of 2012 connected matters Page 466 of 567
helpful to clarify the scope of the word ‘only’, not directly
but indirectly.”396) It was further submitted that though clause (3) of Article 110
stipulates that decision of the Speaker on whether a Bill is a
Money Bill or not is final, that did not mean that it was not subject
to the judicial scrutiny and, therefore, in a given case, the Court
was empowered to decide as to whether decision of the Speaker
was constitutionally correct. In respect of Bill in question, it was
argued that though Section 7 states that subsidies, benefits and
services shall be provided from Consolidated Fund of India which
was an attempt to give it a colour of Money Bill, some of the other
provisions, namely, clauses 23(2)(h), 54(2)(m) and 57 of the Bill
(which corresponds to Sections 23(2)(h), 54(2)(m) and 57 of the
Aadhaar Act) do not fall under any of the clauses of Article 110 of
the Constitution. Therefore, some provisions which were other
than those covered by Money Bill and, therefore, introduction of
the Bill as Money Bill was clearly inappropriate. It was also
argued that, in this scenario, entire Act was bound to fail as there
is no provision for severing clauses in Indian Constitution, unlike
Section 55 of the Australian Constitution. Insofar as justiciability
of the Speaker’s decision is concerned, following judgments were
referred to:
Writ Petition (Civil) No. 494 of 2012 connected matters Page 467 of 567
(i) Sub-Committee on Judicial Accountability v. Union of
India Ors.142
(ii) S.R. Bommai Ors. v. Union of India Ors.143
(iii) Raja Ram Pal v. Hon’ble Speaker, Lok Sabha Ors.144
(iv) Ramdas Athawale v. Union of India Ors.145
(v) Kihoto Hollohan v. Zachillhu Ors.146
397) It was emphasised that the creation and composition of the Rajya
Sabha (Upper House) is an indicator of, and is essential to,
constitutional federalism. It is a part of basic structure of the
Constitution as held in Kuldip Nayar Ors. v. Union of India
Ors.147. Therefore, Rajya Sabha could not have been by-passed
while passing the legislation in question and doing away with this
process and also right of the President to return the Bill has
rendered the statute unconstitutional.
398) The learned Attorney General as well as Mr. Dwivedi and some
other counsel appearing for respondents refuted the aforesaid
submissions in a strongest manner possible. It was argued that
the Bill was rightly characterised as a Money Bill and introduced
under Article 110 of the Constitution. According to them, the
142(1991) 4 SCC 699
143(1994) 3 SCC 1
144(2007) 3 SCC 184
145(2010) 4 SCC 1
146(1992) Supp. 2 SCC 651
147(2006) 7 SCC 1
Writ Petition (Civil) No. 494 of 2012 connected matters Page 468 of 567
heart of the Aadhaar Act is Section 7. It is not the creation ofAadhaar number per se which is the core of the Act, rather, that is
only a means to identify the correct beneficiary and ensure
“targeted delivery of subsidies, benefits and services”, the
expenditure for which is incurred from the Consolidated Fund of
India. A conjoint reading of the preamble to the Act along with
Section 7 clearly discloses the legislative intent and the object of
the Act, which is to ensure that subsidy, benefit or service for
which expenditure is incurred from or the receipt therefrom forms
part of, the Consolidated Fund of India should be targeted to
reach the intended beneficiary. It was argued, without prejudice
to the above, that the decision of the Speaker incorporated into a
certificate sent to the President is final and cannot be the subject
matter of judicial review. To support the aforesaid proposition,
reference was made to the judgment in the case of Mohd. Saeed
Siddiqui v. State of Uttar Pradesh Anr.148 wherein the Court held
as under:
“7. Leave granted in the special leave petition. This appeal
is directed against the order dated 27-8-2012 passed by
the Division Bench of the High Court of Judicature of
Allahabad in Mukul Upadhyay v. N.K. Mehrotra [Civil Misc.Writ Petition No. 24905 of 2012 (Writ-C 24905 of 2012),
order dated 27-8-2012 (All)] whereby the High Court, while
allowing the amendment application to the writ petition and
holding the writ petition to be maintainable, directed to list
the petition on 27-9-2012 for hearing on merits. By way of148(2014) 11 SCC 415
Writ Petition (Civil) No. 494 of 2012 connected matters Page 469 of 567
the said amendment application, the writ petitioner sought
to add two grounds in the writ petition viz. the Amendment
Act is violative of the provisions of the Constitution of India
and the same was wrongly introduced as a Money Bill in
clear disregard to the provisions of Article 199 of the
Constitution of India. Accordingly, it was prayed to issue a
writ, order or direction in the nature of mandamus declaring
the Amendment Act as ultra vires the provisions of the
Constitution of India.xx xx xx
12. It was further submitted by Mr Venugopal that the
Amendment Act was not even passed by the State
Legislature in accordance with the provisions of the
Constitution of India and is, thus, a mere scrap of paper in
the eye of the law. The Bill in question was presented as a
Money Bill when, on the face of it, it could never be called
as a Money Bill as defined in Articles 199(1) and 199(2) of
the Constitution of India. Since the procedure for an
ordinary Bill was not followed and the assent of the
Governor was obtained to an inchoate and incomplete Bill
which had not even gone through the mandatory
requirements under the Constitution of India, the entire
action was unconstitutional and violative of Article 200 of
the Constitution of India.xx xx xx
31. The main apprehension of the petitioner is that the Bill
that led to the enactment of the Amendment Act was
passed as a Money Bill in violation of Articles 197 and 198
of the Constitution of India which should have been passed
by both the Houses viz. U.P. Legislative Assembly and U.P.
Legislative Council and was wrongly passed only by the
U.P. Legislative Assembly. During the course of hearing, Mr
Desai, learned Senior Counsel appearing for the State of
U.P., placed the original records pertaining to the
proceedings of the Legislative Assembly, decision of the
Speaker as well as the Governor, which we are going to
discuss in the latter part of our judgment.xx xx xx
34. The above provisions make it clear that the finality of
the decision of the Speaker and the proceedings of the
State Legislature being important privilege of the State
Writ Petition (Civil) No. 494 of 2012 connected matters Page 470 of 567
Legislature viz. freedom of speech, debate and
proceedings are not to be inquired by the courts. The
“proceeding of the legislature” includes everything said or
done in either House in the transaction of the parliamentary
business, which in the present case is enactment of the
Amendment Act. Further, Article 212 precludes the courts
from interfering with the presentation of a Bill for assent to
the Governor on the ground of non-compliance with the
procedure for passing Bills, or from otherwise questioning
the Bills passed by the House. To put it clear, proceedings
inside the legislature cannot be called into question on the
ground that they have not been carried on in accordance
with the Rules of Business. This is also evident from Article
194 which speaks about the powers, privileges of the
Houses of the Legislature and of the members and
committees thereof.35. We have already quoted Article 199. In terms of Article
199(3), the decision of the Speaker of the Legislative
Assembly that the Bill in question was a Money Bill is final
and the said decision cannot be disputed nor can the
procedure of the State Legislature be questioned by virtue
of Article 212. We are conscious of the fact that in the
decision of this Court in Raja Ram Pal v. Lok Sabha
[(2007) 3 SCC 184] , it has been held that the proceedings
which may be tainted on account of substantive or gross
irregularity or unconstitutionality are not protected from
judicial scrutiny.36. Even if it is established that there was some infirmity in
the procedure in the enactment of the Amendment Act, in
terms of Article 255 of the Constitution the matters of
procedure do not render invalid an Act to which assent has
been given by the President or the Governor, as the case
may be.xx xx xx
43. As discussed above, the decision of the Speaker of the
Legislative Assembly that the Bill in question was a Money
Bill is final and the said decision cannot be disputed nor
can the procedure of the State Legislature be questioned
by virtue of Article 212. Further, as noted earlier, Article 252
also shows that under the Constitution the matters of
procedure do not render invalid an Act to which assent has
been given by the President or the Governor, as the case
may be. Inasmuch as the Bill in question was a Money Bill,
Writ Petition (Civil) No. 494 of 2012 connected matters Page 471 of 567
the contrary contention by the petitioner against the
passing of the said Bill by the Legislative Assembly alone is
unacceptable.”399) It was submitted that the challenge on identical grounds was,
thus, repelled in the aforesaid case wherein validity of legislative
enactment of a State in question, on the same ground, namely, it
could not called Money Bill as defined in Article 199 of the
Constitution, which was pari materia with Article 110 of the
Constitution qua the Parliament. Judgment in the case of
Yogendra Kumar Jaiswal Ors. v. State of Bihar Ors.149 was
also referred to wherein the Court was concerned with Orissa
Special Courts Act, 2006 which was also passed as Money Bill
and was challenged as violative of Article 199 of the Constitution.
It was argued that the Court held in this case that decision of the
Speaker that the Bill in question is a Money Bill is final and such a
decision cannot be disputed nor can the procedure of the state
legislature can be questioned by virtue of Article 212 of the
Constitution. The learned Attorney General specifically read out
the following portion from the said judgment:
“42. In this regard, we may profitably refer to the authority
in Mohd. Saeed Siddiqui v. State of U.P. [Mohd. Saeed
Siddiqui v. State of U.P., (2014) 11 SCC 415], wherein a
three-Judge Bench while dealing with such a challenge,
held that Article 212 precludes the courts from interfering
with the presentation of a Bill for assent to the Governor on149(2016) 3 SCC 183
Writ Petition (Civil) No. 494 of 2012 connected matters Page 472 of 567
the ground of non-compliance with the procedure for
passing Bills, or from otherwise questioning the Bills
passed by the House, for proceedings inside the legislature
cannot be called into question on the ground that they have
not been carried on in accordance with the Rules of
Business. Thereafter, the Court referring to Article 199(3)
ruled that the decision of the Speaker of the Legislative
Assembly that the Bill in question was a Money Bill is final
and the said decision cannot be disputed nor can the
procedure of the State Legislature be questioned by virtue
of Article 212. The Court took note of the decision in Raja
Ram Pal [Raja Ram Pal v. Lok Sabha, (2007) 3 SCC 184]
wherein it has been held that the proceedings which may
be tainted on account of substantive or gross irregularity or
unconstitutionality are not protected from judicial scrutiny.
Eventually, the Court repelled the challenge.43. In our considered opinion, the authorities cited by the
learned counsel for the appellants do not render much
assistance, for the introduction of a Bill, as has been held
in Mohd. Saeed Siddiqui [Mohd. Saeed Siddiqui v. State of
U.P., (2014) 11 SCC 415] , comes within the concept of
“irregularity” and it does come within the realm of
substantiality. What has been held in Special Reference
No. 1 of 1964 [Powers, Privileges and Immunities of State
Legislatures, In re, Special Reference No. 1 of 1964, AIR
1965 SC 745] has to be appositely understood. The factual
matrix therein was totally different than the case at hand as
we find that the present controversy is wholly covered by
the pronouncement in Mohd. Saeed Siddiqui [Mohd.Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] and
hence, we unhesitatingly hold that there is no merit in the
submission so assiduously urged by the learned counsel
for the appellants.”400) Reliance was also placed on three judgments of Constitution
Bench of this Court150. The learned Attorney General also
submitted that even if it is presumed that there is illegality of
procedure in the conduct of business in the Parliament, such
150Mangalore Ganesh Beedi Works v. State of Mysore Anr., 1963 Supp (1) SCR 275; Ramdas
Athawale v. Union of India Ors., (2010) 4 SCC 1, and; M.S.M. Sharma v. Dr. Shree Krishna
Sinha Ors., AIR 1960 SC 1186
Writ Petition (Civil) No. 494 of 2012 connected matters Page 473 of 567
parliamentary proceedings were immune from challenge.Attention of the Court was also drawn to Article 122, which
prohibits any proceedings of Parliament being called in question
on the ground of “any alleged irregularity of procedure”. It was
submitted that the decision and certification of the Speaker being
a matter of procedure is included in the Chapter under the heads
“Legislative Procedure” being Articles 107 to 111, “Procedure in
Financial Matters” being Articles 112 to 117 and “Procedure
Generally” being Article 118 to 122 placing beyond doubt that
separation of powers is embedded in these provisions clearly
excluding judicial review in matters of procedure. Submission
was that if this is clearly a Money Bill, being placed beyond
challenge in a Court of Law, then to term it as a Financial Bill as
contended by the petitioners would be wholly unjustified. Dilating
the aforesaid proposition, it was pointed out that in the Draft
Constitution prepared by the drafting committee, Article 101
provided for immunity of Parliamentary proceedings from judicial
intervention on ‘alleged irregularity of procedure’. This article
finally got renumbered as Article 122 in the Constitution of India.
During the Constituent Assembly debates, Shri H.V. Kamath
suggested an amendment to draft Article 101 to clarify that the
validity of any Parliamentary proceedings shall not be called in
Writ Petition (Civil) No. 494 of 2012 connected matters Page 474 of 567
question in any court. Accordingly, he suggested that the words‘called in question’ be replaced with ‘called in question in any
court’. Refuting this suggested amendment, Dr. B.R. Ambedkar
categorically stated:
“Sir, with regard to the amendment of Mr. Kamath, I do not
think it is necessary, because where can the proceedings
of Parliament be questioned in a legal manner except in a
court? Therefore the only place where the proceedings of
Parliament can be questioned in a le-gal manner and legal
sanction obtained is the Court. Therefore it is unnecessary
to mention the words which Mr. Kamath wants in his
amendment. For the reason I have explained, the only
forum there the proceedings can be questioned in a
legal manner and legal relief obtained either against
the President or the Speaker or any officer or Member,
being the Court, it is unnecessary to specify the forum.Mr. Kamath will see that the marginal note makes it clear.”
401) Support of the judgment rendered by Patna High Court in Patna
Zilla Truck Owners Association Ors. v. State of Bihar Ors.151
was also taken, which has been approved by the Constitution
Bench judgment of this Court in State of Punjab v. Sat Pal Dang
Ors.152. It was also argued that the legal position was similar in
other Parliamentary democracies like Australia and Canada.
402) In any case, argued the learned Attorney General and Mr.
Dwivedi, the Bill was rightly introduced as Money Bill as it merited
such a description in law as well. To buttress this submission,
doctrine of pith and substance was invoked as a guiding test. It
151AIR 1963 Pat 16
152(1969) 1 SCR 478
Writ Petition (Civil) No. 494 of 2012 connected matters Page 475 of 567
was argued that Section 7 which was the heart and soul of theAadhaar Act fulfilled this requirement as the subsidies, benefits
and services, the expenditure of which is incurred from the
Consolidated Fund of India. Therefore, conditions laid down in
Article 110 were fully satisfied. Following judgments 153 explaining
the doctrine of pith and substance were pressed into substance.
It was submitted that undoubtedly in pith and substance, the
object of the Aadhaar Act is to identify the correct beneficiaries
and ensure the “targeted delivery of subsidies, benefits and
services”, the expenditure for which is incurred from the
Consolidated Fund of India. The creation of the Aadhaar number
and authentication facility are in furtherance of the object of the
Aadhaar Act, which is permissible under Article 110(g). It was
also argued that Section 57, which has been attacked as being
untraceable to any of the sub-clauses of (a) to (f) of Article 110
cannot be looked at in isolation. This Bill in its pith and substance
should pass the test of being a Money Bill and not isolated
provisions. On the contrary, Section 57 of the Act is also
incidental to the object of the Act and creates a limitation upon
use of Aadhaar by private parties wherein even though nothing
prevents them from using Aadhaar for other purposes, the same
153A.S. Krishna v. State of Madras, (1957) SCR 399; Union of India Ors. v. Shah Goverdhan L.
Kabra Teachers’ College, (2002) 8 SCC 228, and; P.N. Krishna Lal Ors. v. Government of
Kerala Anr., 1995 Supp (2) SCC 187
Writ Petition (Civil) No. 494 of 2012 connected matters Page 476 of 567
has been subjected to the procedure and obligations of Section8, which requires, inter alia, informed consent of the Aadhaar
number holder, purpose limitation, i.e. the identity information will
be used only for submission to CIDR for authentication and the
private entity must provide alternatives to submission of such
identity information, which, in other words, means that private
parties cannot insist upon Aadhaar and make Aadhaar
mandatory, unless required by law. Therefore, Section 57 is a
limitation imposed under the Aadhaar Act on the use of Aadhaar
number by private parties which is purely incidental to the object
of the Act and would squarely fall within Article 110(g) of the
Constitution.
403) At the outset, we would like to recognise the importance of Rajya
Sabha (Upper House) in a bicameral system of the Parliament.
The significance and relevance of the Upper House has been
succinctly exemplified by this Court in Kuldip Nayar’s case in the
following words:
“74. The growth of “bicameralism” in parliamentary forms
of Government has been functionally associated with the
need for effective federal structures. This nexus between
the role of “Second Chambers” or Upper Houses of
Parliament and better coordination between the Central
Government and those of the constituent units, was
perhaps first laid down in definite terms with the
Constitution of the United States of America, which was
ratified by the thirteen original States of the Union in theWrit Petition (Civil) No. 494 of 2012 connected matters Page 477 of 567
year 1787. The Upper House of the Congress of USA,
known as the Senate, was theoretically modelled on the
House of Lords in the British Parliament, but was totally
different from the latter with respect to its composition and
powers.75. Since then, many nations have adopted a bicameral
form of Central Legislature, even though some of them are
not federations. On account of colonial rule, these British
institutions of parliamentary governance were also
embodied in the British North America Act, 1867 by which
the Dominion of Canada came into existence and the
Constitution of India, 1950. In Canada, Parliament consists
of the House of Commons and the Senate (the Upper
House). Likewise, the Parliament of the Union of India
consists of the Lok Sabha (House of the People) and the
Rajya Sabha (Council of States, which is the Upper
House). In terms of their functions as agencies of
representative democracies, the Lower Houses in the
legislatures of India, USA and Canada, namely, the Lok
Sabha, the House of Representatives and the House of
Commons broadly follow the same system of composition.
As of now, Members of the Lower Houses are elected from
pre-designated constituencies through universal adult
suffrage. The demarcation of these constituencies is in
accordance with distribution of population, so as to accord
equity in the value of each vote throughout the territory of
the country. However, with the existence of constituent
States of varying areas and populations, the representation
accorded to these States in the Lower House becomes
highly unequal. Hence, the composition of the Upper
House has become an indicator of federalism, so as to
more adequately reflect the interests of the constituent
States and ensure a mechanism of checks and balances
against the exercise of power by Central authorities that
might affect the interests of the constituent States.xx xx xx
79. The genesis of the Indian Rajya Sabha on the other
hand benefited from the constitutional history of several
nations which allowed the Constituent Assembly to
examine the federal functions of an Upper House.However, “bicameralism” had been introduced to the
provincial legislatures under the British rule in 1921. The
Government of India Act, 1935 also created an Upper
House in the federal legislature, whose members were to
Writ Petition (Civil) No. 494 of 2012 connected matters Page 478 of 567
be elected by the members of provincial legislatures and in
case of Princely States to be nominated by the rulers of
such territories. However, on account of the realities faced
by the young Indian Union, a Council of States (the Rajya
Sabha) in the Union Parliament was seen as an essential
requirement for a federal order. Besides the former British
provinces, there were vast areas of Princely States that
had to be administered under the Union. Furthermore, the
diversity in economic and cultural factors between regions
also posed a challenge for the newly-independent country.
Hence, the Upper House was instituted by the Constitution-
framers which would substantially consist of members
elected by the State Legislatures and have a fixed number
of nominated members representing non-political fields.
However, the distribution of representation between the
States in the Rajya Sabha is neither equal nor entirely
based on population distribution. A basic formula is used to
assign relatively more weightage to smaller States but
larger States are accorded weightage regressively for
additional population. Hence the Rajya Sabha incorporates
unequal representation for States but with proportionally
more representation given to smaller States. The theory
behind such allocation of seats is to safeguard the interests
of the smaller States but at the same time giving adequate
representation to the larger States so that the will of the
representatives of a minority of the electorate does not
prevail over that of a majority.80. In India, Article 80 of the Constitution of India
prescribes the composition of the Rajya Sabha. The
maximum strength of the House is 250 members, out of
which up to 238 members are the elected representatives
of the States and the Union Territories [Article 80(1)(b)],
and 12 members are nominated by the President as
representatives of non-political fields like literature,
science, art and social services [Articles 80(1)(a) and
80(3)]. The members from the States are elected by the
elected members of the respective State Legislative
Assemblies as per the system of proportional
representation by means of the single transferable vote
[Article 80(4)]. The manner of election for representatives
from the Union Territories has been left to prescription by
Parliament [Article 80(5)]. The allocation of seats for the
various States and Union Territories of the Indian Union is
enumerated in the Fourth Schedule to the Constitution,
which is read with Articles 4(1) and 80(2). This allocationWrit Petition (Civil) No. 494 of 2012 connected matters Page 479 of 567
has obviously varied with the admission and reorganisation
of States.”404) The Rajya Sabha, therefore, becomes an important institution
signifying constitutional fedaralism. It is precisely for this reason
that to enact any statute, the Bill has to be passed by both the
Houses, namely, Lok Sabha as well as Rajya Sabha. It is the
constitutional mandate. The only exception to the aforesaid
Parliamentary norm is Article 110 of the Constitution of India.
Having regard to this overall scheme of bicameralism enshrined
in our Constitution, strict interpretation has to be accorded to
Article 110. Keeping in view these principles, we have
considered the arguments advanced by both the sides.
405) We would also like to observe at this stage that insofar as
submission of the respondents about the justiciability of the
decision of the Speaker of the Lok Sabha is concerned, we are
unable to subscribe to such a contention. Judicial review would
be admissible under certain circumstances having regard to the
law laid down by this Court in various judgments which have
been cited by Mr. P. Chidambaran, learned senior counsel
appearing for the petitioners, and taken note of in paragraph 396.
406) From the submissions of the learned counsel for the parties as
Writ Petition (Civil) No. 494 of 2012 connected matters Page 480 of 567
taken note of above, it is clear that the petitioners accept thatSection 7 of the Aadhaar Act has the elements of ‘Money Bill’.
The attack is on the premise that some other provisions, namely,
clauses 23(2)(h), 54(2)(m) and 57 of the Bill (which corresponds
to Sections 23(2)(h), 54(2)(m) and 57 of the Aadhaar Act) do not
fall under any of the clauses of Article 110 of the Constitution and,
therefore, Bill was not limited to only those subjects mentioned in
Article 110. Insofar as Section 7 is concerned, it makes receipt of
subsidy, benefit or service subject to establishing identity by the
process of authentication under Aadhaar or furnish proof of
Aadhaar etc. It is also very clearly declared in this provision that
the expenditure incurred in respect of such a subsidy, benefit or
service would be from the Consolidated Fund of India. It is also
accepted by the petitioners that Section 7 is the main provision of
the Act. In fact, Introduction to the Act as well as the Statement
of Objects and Reasons very categorically record that the main
purpose of Aadhaar Act is to ensure that such subsidies, benefits
and services reach those categories of persons, for whom they
are actually meant. Sections 2(f), (w) and (x) of the Aadhaar Act
define benefit, service and subsidy respectively. These
provisions read as under:
“2(f) “benefit” means any advantage, gift, reward, relief, or
payment, in cash or kind, provided to an individual or a
Writ Petition (Civil) No. 494 of 2012 connected matters Page 481 of 567
group of individuals and includes such other benefits as
may be notified by the Central Government;2(w) “service” means any provision, facility, utility or any
other assistance provided in any form to an individual or a
group of individuals and includes such other services as
may be notified by the Central Government;2(x) “subsidy” means any form of aid, support, grant,
subvention, or appropriation, in cash or kind, to an
individual or a group of individuals and includes such other
subsidies as may be notified by the Central Government.”407) As all these three kinds of welfare measures are sought to be
extended to the marginalised section of society, a collective
reading thereof would show that the purpose is to expand the
coverage of all kinds of aid, support, grant, advantage, relief
provisions, facility, utility or assistance which may be extended
with the support of the Consolidated Fund of India with the
objective of targeted delivery. It is also clear that various
schemes which can be contemplated by the aforesaid provisions,
relate to vulnerable and weaker section of the society. Whether
the social justice scheme would involve a subsidy or a benefit or
a service is merely a matter of the nature and extent of
assistance and would depend upon the economic capacity of the
State. Even where the state subsidizes in part, whether in cash
or kind, the objective of emancipation of the poor remains the
goal.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 482 of 567
408) The respondents are right in their submission that the expression
subsidy, benefit or service ought to be understood in the context
of targeted delivery to poorer and weaker sections of society. Its
connotation ought not to be determined in the abstract. For as an
abstraction one can visualize a subsidy being extended by
Parliament to the King; by Government to the Corporations or
Banks; etc. The nature of subsidy or benefit would not be the
same when extended to the poor and downtrodden for producing
those conditions without which they cannot live a life with dignity.
That is the main function behind the Aadhaar Act and for this
purpose, enrolment for Aadhaar number is prescribed in Chapter
II which covers Sections 3 to 6. Residents are, thus, held entitled
to obtain Aadhaar number. We may record here that such an
enrolment is of voluntary nature. However, it becomes
compulsory for those who seeks to receive any subsidy, benefit
or service under the welfare scheme of the Government
expenditure whereof is to be met from the Consolidated Fund of
India. It follows that authentication under Section 7 would be
required as a condition for receipt of a subsidy, benefit or service
only when such a subsidy, benefit or service is taken care of by
Consolidated Fund of India. Therefore, Section 7 is the core
Writ Petition (Civil) No. 494 of 2012 connected matters Page 483 of 567
provision of the Aadhaar Act and this provision satisfies theconditions of Article 110 of the Constitution. Upto this stage,
there is no quarrel between the parties.
409) In this context, let us examine provisions of Sections 23(2)(h),
54(2)(m) and 57 of the Aadhaar Act. Insofar as Section 23 is
concerned, it deals with powers and functions of the Authority.
Sub-section (1) thereof says that the Authority shall develop the
policy, procedure and systems for issuing Aadhaar numbers to
individuals and perform authentication thereof under this Act. As
mentioned above, under Section 3 of the Aadhaar Act, Aadhaar
number is to be issued and authentication is performed under
Section 8 of the Aadhaar Act. Sub-section (2) stipulates certain
specified powers and functions which the Authority may perform
and sub-section (h) thereof reads as under:
“23(2)(h) specifying the manner of use of Aadhaar
numbers for the purposes of providing or availing of various
subsidies, benefits, services and other purposes for which
Aadhaar numbers may be used.”410) This provision, thus, enables the Authority to specify the manner
of use of Aadhaar with specific purpose in mind, namely, for
providing or availing of various subsidies, benefits and services.
These are relatable to Section 7. However, it uses the
expression ‘other purposes’ as well. The expression ‘other
Writ Petition (Civil) No. 494 of 2012 connected matters Page 484 of 567
purposes’ can be read ejusdem generis which would have itsrelation to subsidies, benefits and services as mentioned in
Section 7 and it can be confined only to that purpose i.e. scheme
of targeted delivery for giving any grant, relief etc. when it is
chargeable to Consolidated Fund of India. Therefore, this
provision, according to us, can be read as incidental to the main
provision and would be covered by Article 110(g) of the
Constitution. Section 54 confers power upon the Authority to
make regulations consistent with the Act and rules made
thereunder, for carrying out the provisions of the Act. Clause (m)
of sub-section (2) of Section 54 relates to Section 23(2)(h) as can
be seen from its language.
“54(2)(m) the manner of use of Aadhaar numbers for the
purposes of providing or availing of various subsidies,
benefits, services and other purposes for which Aadhaar
numbers may be used under clause (h) of sub-section (2)
of section 23.”411) The interpretation which we have given to Section 23(2)(h) would
apply here as well and, therefore, we do not find any problem
with this provision also. Coming to Section 57 of the Aadhaar
Act, it mentions that Aadhaar Act would not prevent use of
Aadhaar number for other purposes under the law. It is only an
enabling provision as it permits the use of Aadhaar number for
other purposes as well. This provision is to be viewed in the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 485 of 567
backdrop that Section 7 is the core provision. We have alreadyheld that it has substantial nexus with the appropriation of funds
from the Consolidated Fund of India and is directly connected
with Article 110 of the Constitution. To facilitate this, UIDAI is
established as Authority under the Act which performs various
functions including that of a regulator needing funds for staff
salary and it’s own expenses. Respondents have rights
remarked that the Authority is the performer in chief, the
predominant dramatis personae. It appoints Registrars, enrollers,
REs and ASAs; it lays down device and software specifications,
and develops softwares too; it enrols; it de-duplicates; it
establishes CIDR and manages it; it authenticates; it inspects; it
prosecutes; it imposes disincentives; etc. And all this it does
based on funds obtained by appropriations from Consolidated
Fund of India (Section 24).
412) When we examine the provision of Section 57 in the aforesaid
backdrop, as stated above, it only enables holder of Aadhaar
number to use the said number for other purposes as well. That
would not take away or dilute the sheen of clause 7 (now Section
7) for which purposes the Bill was introduced as Money Bill. In
any case, a part of Section 57 has already declared
Writ Petition (Civil) No. 494 of 2012 connected matters Page 486 of 567
unconstitutional whereby even a body corporate in private sectoror person may seek authentication from the Authority for
establishing the identity of an individual.
For all the aforesaid reasons, we are of the opinion that Bill
was rightly introduced as Money Bill. Accordingly, it is not
necessary for us to deal with other contentions of the petitioners,
namely, whether certification by the Speaker about the Bill being
Money Bill is subject to judicial review or not, whether a provision
which does not relate to Money Bill is severable or not. We
reiterate that main provision is a part of Money Bill and other are
only incidental and, therefore, covered by clause (g) of Article 110
of the Constitution.
Section 139AA of the Income Tax Act, 1961:
413) The Division Bench of this Court in Binoy Viswam has already
upheld the validity of Section 139AA of the Income Tax Act, 1961
by repelling the contention predicated on Articles 14 and 19 of the
Constitution of India. No doubt, in the said judgment, the Court
held that insofar as scope of judicial review of legislative act is
concerned, it is available on two grounds, namely:
(i) The Act is not within the competence of the legislature
which passed the law, and/or
(ii) It is in contravention of any fundamental rights stipulated in
Writ Petition (Civil) No. 494 of 2012 connected matters Page 487 of 567
Part III of the Constitution or any other rights/provisions of theConstitution.
414) We have already acknowledged the existence of third ground as
pointed out in Shayara Bano case, namely, ‘manifest
arbitrariness’. An Act which is manifestly arbitrary would be
unreasonable and contrary to rule of law and, therefore, violative
of Article 14 of the Constitution. Even when we consider the
provisions of Section 139AA of the Income Tax Act, 1961 from
this point of view, it cannot be said that the provision suffers from
the vice of manifest arbitrariness. On the contrary, in Binoy
Viswam itself, the benevolent purpose for inserting such a
provision as a bona fide move has been highlighted. Therefore,
the provision needs this test as well. In this behalf, the Court
observed:
“101. The varying needs of different classes or sections of
people require differential and separate treatment. The
legislature is required to deal with diverse problems arising
out of an infinite variety of human relations. It must,
therefore, necessarily have the power of making laws to
attain particular objects and, for that purpose, of
distinguishing, selecting and classifying persons and things
upon which its laws are to operate. The principle of equality
of law, thus, means not that the same law should apply to
everyone but that a law should deal alike with all in one
class; that there should be an equality of treatment under
equal circumstances. It means that equals should not be
treated unlike and unlikes should not be treated alike. Likes
should be treated alike.”Writ Petition (Civil) No. 494 of 2012 connected matters Page 488 of 567
415) Since the issue as to whether right to privacy is a facet of
fundamental rights or not was pending before the Constitution
Bench, the challenge to Section 139AA was not examined in the
context of privacy rights, specifically Article 21 of the Constitution
though this aspect was argued. The Division Bench observed in
this behalf, as under:
“136. Subject to the aforesaid, these writ petitions are
disposed of in the following manner:136.1. We hold that Parliament was fully competent to
enact Section 139-AA of the Act and its authority to make
this law was not diluted by the orders of this Court.136.2. We do not find any conflict between the provisions
of the Aadhaar Act and Section 139-AA of the Income Tax
Act inasmuch as when interpreted harmoniously, they
operate in distinct fields.136.3. Section 139-AA of the Act is not discriminatory nor it
offends equality clause enshrined in Article 14 of the
Constitution.136.4. Section 139-AA is also not violative of Article 19(1)
(g) of the Constitution insofar as it mandates giving of
Aadhaar enrolment number for applying for PAN cards, in
the income tax returns or notified Aadhaar enrolment
number to the designated authorities. Further, the proviso
to sub-section (2) thereof has to be read down to mean that
it would operate only prospectively.136.5. The validity of the provision upheld in the aforesaid
manner is subject to passing the muster of Article 21 of the
Constitution, which is the issue before the Constitution
Bench in Writ Petition (Civil) No. 494 of 2012 and other
connected matters. Till then, there shall remain a partial
stay on the operation of the proviso to sub-section (2) of
Section 139-AA of the Act, as described above. No costs.”416) The nine Judge Bench has already, since then, answered the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 489 of 567
reference by holding that right to privacy is a fundamental right.Having regard to that, validity of Section 139AA of the Act needs
to be tested on this ground.
417) As already explained above, the Constitution Bench has held that
in K.S. Puttaswamy though privacy is a fundamental right inter
alia traceable to the right to liberty enshrined in Article 21 of the
Constitution, it is not an absolute right but subject to limitations.
The Court also laid down the triple test which need to be satisfied
for judging the permissible limits for invasion of privacy while
testing the validity of any legislation. These are:
(a) The existence of a law.(b) A “legitimate State interest”; and
(c) Such law should pass the “test of proportionality”.
418) In the present case, there is no dispute that first requirement
stands satisfied as Section 139AA is a statutory provision and,
therefore, there is a backing of law. Mr. Tushar Mehta, learned
ASG had argued that not only other two requirements are also
satisfied, rather these have been specifically dealt with by the
Division Bench in Binoy Viswam inasmuch as these aspects were
eluded to, consider, examined and the Court recorded its findings
on these aspects. We find force in this submission of Mr. Mehta.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 490 of 567
Insofar as requirement of ‘legitimate State interest’ is concerned,he pointed out that though Nariman, J. provided for a lenient test,
namely, ‘larger public interest’ as against ‘legitimate State
interest’, the provision satisfies both the tests. We agree with his
submission, as Section 139AA of the Income Tax Act, 1961 seeks
to safeguard the following interest:
“To prevent income tax evasion by requiring, through an
amendment to the Income Tax Act, that the Aadhaar
number be linked with the PAN.”419) The mandatory requirement of quoting/producing PAN number is
given in Rule 114 and the Form 49A. While mandating that
“every person”, (the term “person” as defined under Section 2(31)
of the Act), shall apply for and get a PAN, the legislature also
provided for the requirement so as to how such number will be
given to every “person” in Rule 114 of the Income Tax Rules, the
relevant part of which is Rule 114(1). While complying with the
mandatory requirement (which have been in existence since
1989) and that for all “persons”, many facts were required to be
disclosed and such disclosure was/is in public interest including
demographic details and biometrics i.e. left thumb
impression/signature.
420) The Parliament, considering the “legitimate State interest” as well
Writ Petition (Civil) No. 494 of 2012 connected matters Page 491 of 567
as the “larger public interest” has now introduced Section 139AAwhich is only an extension of Section 139A which requires linking
of PAN number with Aadhaar number which is issued under the
Act for the purpose of eliminating duplicate PANs from the system
with the help of a robust technology solution. Therefore, those
who have PAN number and have already provided the
information required to get PAN number cannot claim to have any
legitimate expectation of withholding any data required for
Aadhaar under the ground of “privacy”.
421) The respondents have demonstrated with empirical data, in the
common additional affidavit of respondent Nos. 1 and 3 the
existence of the “legitimate State interest” and “larger public
interest”. Being a unique identifier, the problem of bogus or
duplicate PANs can be dealt with in a more systematic and full-
proof manner (though, in the context of Articles 14 and 19 of the
Constitution, but at the same time, relevant from the perspective
of legitimate State interest also). Discussion on this aspect, in
Binoy Viswam, proceeds as under:
“60.2. PAN is the key or identifier of all computerised
records relating to the taxpayer. The requirement for
obtaining of PAN is mandated through Section 139-A of the
Act. The procedure for application for PAN is prescribed in
Rule 114 of the Rules. The forms prescribed for PAN
application are Forms 49-A and 49-AA for Indian and
foreign citizens/entities. Quoting of PAN has been
Writ Petition (Civil) No. 494 of 2012 connected matters Page 492 of 567
mandated for certain transactions above specified
threshold value in Rule 114-B of the Rules.60.3. For achieving the objective of one PAN to one
assessee, it is required to maintain uniqueness of PAN.
The uniqueness of PAN is achieved by conducting a de-
duplication check on all already existing allotted PAN
against the data furnished by new applicant. Under the
existing system of PAN only demographic data is captured.
De-duplication process is carried out using a phonetic
algorithm whereby a Phonetic PAN (PPAN) is created in
respect of each applicant using the data of applicant's
name, father's name, date of birth, gender and status. By
comparison of newly generated PPAN with existing set of
PPANs of all assessees duplicate check is carried out and
it is ensured that same person does not acquire multiple
PANs or one PAN is not allotted to multiple persons. Due to
prevalence of common names and large number of PAN
holders, the demographic way of de-duplication is not
foolproof. Many instances are found where multiple PANs
have been allotted to one person or one PAN has been
allotted to multiple persons despite the application of
abovementioned de-duplication process. While allotment of
multiple PANs to one person has the risk of diversion of
income of person into several PANs resulting in evasion of
tax, the allotment of same PAN to multiple persons results
in wrong aggregation and assessment of incomes of
several persons as one taxable entity represented by
single PAN.60.4. Presently verification of original documents in only
0.2% cases (200 out of 1,00,000 PAN applications) is done
on a random basis which is quite less. In the case of
Aadhaar, 100% verification is possible due to availability of
online Aadhaar authentication service provided by the
UIDAI. Aadhaar seeding in PAN database will make PAN
allotment process more robust.60.5. Seeding of Aadhaar number into PAN database will
allow a robust way of de-duplication as Aadhaar number is
de-duplicated using biometric attributes of fingerprints and
iris images. The instance of a duplicate Aadhaar is almost
non-existent. Further seeding of Aadhaar will allow the
Income Tax Department to weed out any undetected
duplicate PANs. It will also facilitate resolution of cases of
one PAN allotted to multiple persons.Writ Petition (Civil) No. 494 of 2012 connected matters Page 493 of 567
xx xx xx
104. Insofar as the impugned provision is concerned, Mr
Datar had conceded that first test that of reasonable
classification had been satisfied as he conceded that
individual assessees form a separate class and the
impugned provision which targeted only individual
assessees would not be discriminatory on this ground. His
whole emphasis was that Section 139-AA of the Act did not
satisfy the second limb of the twin tests of classification as,
according to him, this provision had no rational nexus with
the object sought to be achieved. In this behalf, his
submission was that if the purpose of the provision was to
curb circulation of black money, such an object was not
achievable by seeding PAN with Aadhaar inasmuch as
Aadhaar is only for individuals. His submission was that it
is only the individuals who are responsible for generating
black money or money laundering. This was the basis for
Mr Datar's submission. We find it somewhat difficult to
accept such a submission.105. Unearthing black money or checking money
laundering is to be achieved to whatever extent possible.Various measures can be taken in this behalf. If one of the
measures is introduction of Aadhaar into the tax regime, it
cannot be denounced only because of the reason that the
purpose would not be achieved fully. Such kind of menace,
which is deep-rooted, needs to be tackled by taking
multiple actions and those actions may be initiated at the
same time. It is the combined effect of these actions which
may yield results and each individual action considered in
isolation may not be sufficient. Therefore, rationality of a
particular measure cannot be challenged on the ground
that it has no nexus with the objective to be achieved. Of
course, there is a definite objective. For this purpose alone,
individual measure cannot be ridiculed. We have already
taken note of the recommendations of SIT on black money
headed by Justice M.B. Shah. We have also reproduced
the measures suggested by the Committee headed by
Chairman, CBDT on “Measures to Tackle Black Money in
India and Abroad”. They have, in no uncertain terms,
suggested that one singular proof of identity of a person for
entering into finance/business transactions, etc. may go a
long way in curbing this foul practice. That apart, even if
solitary purpose of de-duplication of PAN cards is taken
into consideration, that may be sufficient to meet the
second test of Article 14. It has come on record that 11.35
Writ Petition (Civil) No. 494 of 2012 connected matters Page 494 of 567
lakh cases of duplicate PAN or fraudulent PAN cards have
already been detected and out of this 10.52 lakh cases
pertain to individual assessees. Seeding of Aadhaar with
PAN has certain benefits which have already been
enumerated. Furthermore, even when we address the
issue of shell companies, fact remains that companies are
after all floated by individuals and these individuals have to
produce documents to show their identity. It was sought to
be argued that persons found with duplicate/bogus PAN
cards are hardly 0.4% and, therefore, there was no need to
have such a provision. We cannot go by percentage
figures. The absolute number of such cases is 10.52 lakhs,
which figure, by no means, can be termed as miniscule, to
harm the economy and create adverse effect on the nation.
The respondents have argued that Aadhaar will ensure that
there is no duplication of identity as biometrics will not
allow that and, therefore, it may check the growth of shell
companies as well.xx xx xx
127. It would be apposite to quote the following discussion
by the Comptroller and Auditor General in his report for the
year 2011:“Widening of Tax Base
The assessee base grew over the last five years from
297.9 lakh taxpayers in 2005-06 to 340.9 lakh
taxpayers in 2009-10 at the rate of 14.4 per cent.The Department has different mechanisms available
to enhance the assessee base which include
inspection and survey, information sharing with other
tax departments and third-party information available
in annual information returns. Automation also
facilitates greater crosslinking. Most of these
mechanisms are available at the level of assessing
officers. The Department needs to holistically harness
these mechanisms at macro level to analyse the gaps
in the assessee base. Permanent Account Numbers
(PANs) issued up to March 2009 and March 2010
were 807.9 lakhs and 958 lakhs respectively. The
returns filled in 2008-09 and 2009-10 were 326.5
lakhs and 340.9 lakhs respectively. The gap between
PANs and the number of returns filed was 617.1 lakhs
in 2009-10. The Board needs to identify the reasons
Writ Petition (Civil) No. 494 of 2012 connected matters Page 495 of 567
for the gap and use this information for appropriately
enhancing the assessee base. The gap may be due
to issuance of duplicate PAN cards and death of
some PAN card holders. The Department needs to
put in place appropriate controls to weed out the
duplicate PANs and also update the position in
respect of deceased assessee. It is significant to note
that the number of PAN card holders has increased
by 117.7 per cent between 2005-06 to 2009-10
whereas the number of returns filed in the same
period has increased by 14.4 per cent only.The total direct tax collection has increased by 128.8
per cent during the period 2005-06 to 2009-10. The
increase in the tax collection was around nine times
as compared to increase in the assessee base. It
should be the constant endeavour of the Department
to ensure that the entire assessee base, once
correctly identified is duly meeting the entire tax
liability. However, no assurance could be obtained
that the tax liability on the assessee is being
assessed and collected properly. This comment is
corroborated in Para 2.4.1 of Chapter 2 of this report
where we have mentioned about our detection of
undercharge of tax amounting to Rs 12,842.7 crores
in 19,230 cases audited during 2008-09. However,
given the fact that ours is a test audit, the Department
needs to take firm steps towards strengthening the
controls available on the existing statutes towards
deriving an assurance on the tax collections.”
(emphasis supplied)128. Likewise, the Finance Minister in his Budget speech in
February 2013 described the extent of tax evasion and
offering lesser income tax than what is actually due thereby
labelling India as tax non-compliant, with the following
figures:“India's tax to GDP ratio is very low, and the
proportion of direct tax to indirect tax is not optional
from the viewpoint of social justice. I place before you
certain data to indicate that our direct tax collection is
not commensurate with the income and consumption
pattern of Indian economy. As against estimated 4.2
crore persons engaged in organised sector
employment, the number of individuals filing return for
salary income are only 1.74 crores. As against 5.6
Writ Petition (Civil) No. 494 of 2012 connected matters Page 496 of 567
crore informal sector individual enterprises and firms
doing small business in India, the number of returns
filed by this category are only 1.81 crores. Out of the
13.94 lakh companies registered in India up to 31-3-
2014, 5.97 lakh companies have filed their returns for
Assessment Year 2016-17. Of the 5.97 lakh
companies which have filed their returns for
Assessment Year 2016-17 so far, as many as 2.76
lakh companies have shown losses or zero income.
2.85 lakh companies have shown profit before tax of
less than Rs 1 crore. 28,667 companies have shown
profit between Rs 1 crore to Rs 10 crores, and only
7781 companies have profit before tax of more than
Rs 10 crores. Among 3.7 crore individuals who filed
the tax returns in 2015-16, 99 lakhs show income
below the exemption limit of Rs 2.5 lakh p.a. 1.95
crores show income between Rs 2.5 to Rs 5 lakhs, 52
lakhs show income between Rs 5 to Rs 10 lakhs and
only 24 lakh people show income above Rs 10 lakhs.
Of the 76 lakh individual assessees who declare
income above Rs 5 lakhs, 56 lakhs are in the salaried
class. The number of people showing income more
than 50 lakhs in the entire country is only 1.72 lakhs.
We can contrast this with the fact that in the last five
years, more than 1.25 crore cars have been sold, and
number of Indian citizens who flew abroad, either for
business or tourism, is 2 crores in the year 2015.
From all these figures we can conclude that we are
largely a tax non-compliant society. The
predominance of the cash in the economy makes it
possible for the people to evade their taxes. When
too many people evade the taxes, the burden of their
share falls on those who are honest and compliant.”129. The respondents have also claimed that linking of
Aadhaar with PAN is consistent with India's international
obligations and goals. In this behalf, it is pointed out that
India has signed the Inter-Governmental Agreement (IGA)
with USA on 9-7-2015, for Improving International Tax
Compliance and implementing the Foreign Account Tax
Compliance Act (FATCA). India has also signed a
multilateral agreement on 3-6-2015, to automatically
exchange information based on Article 6 of the Convention
on Mutual Administrative Assistance in Tax Matters under
the Common Reporting Scheme (CRS), formally referred to
as the Standard for Automatic Exchange of Financial
Account Information (AEoI). As part of India's commitment
Writ Petition (Civil) No. 494 of 2012 connected matters Page 497 of 567
under FATCA and CRS, financial sector entities capture the
details about the customers using the PAN. In case the
PAN or submitted details are found to be incorrect or
fictitious, it will create major embarrassment for the country.
Under Non-filers Monitoring System (NMS), the Income
Tax Department identifies non-filers with potential tax
liabilities. Data analysis is carried out to identify non-filers
about whom specific information was available in AIR, CIB
data and TDS/TCS returns. Email/SMS and letters are sent
to the identified non-filers communicating the information
summary and seeking to know the submission details of
income tax return. In a large number of cases (more than
10 lakh PANs every year) it is seen that the PAN holder
neither submits the response and in many cases the letters
are return unserved. Field verification by field formations
have found that in a large number of cases, the PAN holder
is untraceable. In many cases, the PAN holder mentions
that the transaction does not relate to them. There is a
need to strengthen PAN by linking it with Aadhaar/biometric
information to prevent use of wrong PAN for high value
transactions.”422) Adverting to the aspect of proportionality, here again there was a
specific discussion in Binoy Viswam as this argument was raised,
though in the context of Article 19 of the Constitution. The Court
after explaining the doctrine of proportionality specifically held
that proportionality test stood applied with. Following discussion
in the said judgment would amply demonstrate this proposition:
“65. While monitoring the PILs relating to night shelters for
the homeless and the right to food through the public
distribution system, this Court has lauded and
complimented the efforts of the State Governments for inter
alia carrying out biometric identification of the head of
family of each household to eliminate fictitious, bogus and
ineligible BPL/AAY household cards.xx xx xx
Writ Petition (Civil) No. 494 of 2012 connected matters Page 498 of 567
125.2. Menace of corruption and black money has reached
alarming proportion in this country. It is eating into the
economic progress which the country is otherwise
achieving. It is not necessary to go into the various reasons
for this menace. However, it would be pertinent to comment
that even as per the observations of the Special
Investigation Team (SIT) on black money headed by
Justice M.B. Shah, one of the reasons is that persons have
the option to quote their PAN or UID or passport number or
driving licence or any other proof of identity while entering
into financial/business transactions. Because of this
multiple methods of giving proofs of identity, there is no
mechanism/system at present to collect the data available
with each of the independent proofs of ID. For this reason,
even SIT suggested that these databases be
interconnected. To the same effect is the recommendation
of the Committee headed by Chairman, CBDT on
measures to tackle black money in India and abroad which
also discusses the problem of money laundering being
done to evade taxes under the garb of shell companies by
the persons who hold multiple bogus PAN numbers under
different names or variations of their names. That can be
possible if one uniform proof of identity, namely, UID is
adopted. It may go a long way to check and minimise the
said malaise.125.3. Thirdly, Aadhaar or UID, which has come to be
known as the most advanced and sophisticated
infrastructure, may facilitate law-enforcement agencies to
take care of problem of terrorism to some extent and may
also be helpful in checking the crime and also help
investigating agencies in cracking the crimes. No doubt,
going by the aforesaid, and may be some other similarly
valid considerations, it is the intention of the Government to
give fillip to Aadhaar movement and encourage the people
of this country to enrol themselves under the Aadhaar
Scheme.126. Whether such a scheme should remain voluntary or it
can be made mandatory imposing compulsiveness on the
people to be covered by Aadhaar is a different question
which shall be addressed at the appropriate stage. At this
juncture, it is only emphasised that mala fides cannot be
attributed to this scheme. In any case, we are concerned
with the vires of Section 139-AA of the Income Tax Act,
1961 which is a statutory provision. This Court is, thus,
dealing with the aspect of judicial review of legislation.Writ Petition (Civil) No. 494 of 2012 connected matters Page 499 of 567
Insofar as this provision is concerned, the explanation of
the respondents in the counter-affidavit, which has already
been reproduced above, is that the primary purpose of
introducing this provision was to take care of the problem
of multiple PAN cards obtained in fictitious names. Such
multiple cards in fictitious names are obtained with the
motive of indulging into money laundering, tax evasion,
creation and channelising of black money. It is mentioned
that in de-duplication exercises, 11.35 lakh cases of
duplicate PANs/fraudulent PANs have been detected. Out
of these, around 10.52 lakhs pertain to the individual
assessees. Parliament in its wisdom thought that one PAN
to one person can be ensured by adopting Aadhaar for
allotment of PAN to individuals. As of today, that is the only
method available i.e. by seeding of existing PAN with
Aadhaar. It is perceived as the best method, and the only
robust method of de-duplication of PAN database. It is
claimed by the respondents that the instance of duplicate
Aadhaar is almost non-existent. It is also claimed that
seeding of PAN with Aadhaar may contribute to widening of
the tax case as well, by checking the tax evasions and
bringing into tax hold those persons who are liable to pay
tax but deliberately avoid doing so.”423) It has been stated by the respondents, on affidavit, that analysis
of Form 61/60 data using PAN Aadhaar linkage shows that a
large number of PAN holders do not quote their PAN in the
prescribed transactions to prevent linking of the transactions to
the PAN. The analysis was performed by matching the Aadhaar
number and person name reported in Form 61 (which was
possible only due to linking of financial transactions/accounts with
Aadhaar) with the Aadhaar and name of the entity available in the
ITD PAN database (possible due to linking of PAN with Aadhaar).
This analysis identified 1.65 crore non-PAN transactions reported
Writ Petition (Civil) No. 494 of 2012 connected matters Page 500 of 567
through Form 61 (relating to FY 2016-17 and FY 2017-18) wherePAN of the transacting party was present in the PAN database
and was not mentioned filing a wrong form deliberately. These
transactions totalled to around Rs. 33,000 crore (based on
transaction amount reported). This is the amount of undisclosed
high value transaction which would have gone undetected had it
not been for Aadhaar linkage. Similar matching has also helped
populating PAN in 1.12 lakh non-PAN transactions reported under
Statement of Financial Transactions (SFT). Majority of the non-
PAN transactions reported are around Deposit in Cash,
Investment in time deposit, Sale of immovable property, Purchase
of immovable property and Opening an account (other than
savings and time deposit). Thus, linking of PAN with Aadhaar will
significantly enhance legitimate collection of country’s revenue.
424) Taking into account the aforesaid consideration as well as other
factors mentioned above, we feel that there is a justifiable reason
with the State for collection and storage of data in the form of
Aadhaar and linking it with PAN insofar as Section 139AA of the
Income Tax Act is concerned. We would like to reproduce para
311 of K.S. Puttaswamy judgment, which reads as under:
“311. Apart from national security, the State may have
justifiable reasons for the collection and storage of data. In
a social welfare State, the Government embarks upon
Writ Petition (Civil) No. 494 of 2012 connected matters Page 501 of 567
programmes which provide benefits to impoverished and
marginalised sections of society. There is a vital State
interest in ensuring that scarce public resources are not
dissipated by the diversion of resources to persons who do
not qualify as recipients. Allocation of resources for human
development is coupled with a legitimate concern that the
utilisation of resources should not be siphoned away for
extraneous purposes. 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 utilised for legitimate purposes of
the State and ought not to be utilised unauthorisedly for
extraneous purposes. This will ensure that the legitimate
concerns of the State are duly safeguarded while, at the
same time, protecting privacy concerns. Prevention and
investigation of crime and protection of the revenue are
among the legitimate aims of the State. Digital platforms
are a vital tool of ensuring good governance in a social
welfare State. Information technology—legitimately
deployed is a powerful enabler in the spread of innovation
and knowledge.”425) Following passages from Subramanian Swamy v. Union of India,
Ministry of Law Ors.154 may also be relevant in this behalf and
the same are reproduced below:
“122. In State of Madras v. V.G. Row, the Court has ruled
that the test of reasonableness, wherever prescribed,
should be applied to each individual statute impugned and
no abstract standard, or general pattern of reasonableness
can be laid down as applicable to all cases. The nature of
the right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the extent and urgency
of the evil sought to be remedied thereby, the disproportion
of the imposition, the prevailing conditions at the time,
should all enter into the judicial verdict.xx xx xx
130. The principles as regards reasonable restriction as
has been stated by this Court from time to time are that the154(2016) 7 SCC 221
Writ Petition (Civil) No. 494 of 2012 connected matters Page 502 of 567
restriction should not be excessive and in public interest.The legislation should not invade the rights and should not
smack of arbitrariness. The test of reasonableness cannot
be determined by laying down any abstract standard or
general pattern. It would depend upon the nature of the
right which has been infringed or sought to be infringed.
The ultimate “impact”, that is, effect on the right has to be
determined. The “impact doctrine” or the principle of
“inevitable effect” or “inevitable consequence” stands in
contradistinction to abuse or misuse of a legislation or a
statutory provision depending upon the circumstances of
the case. The prevailing conditions of the time and the
principles of proportionality of restraint are to be kept in
mind by the court while adjudging the constitutionality of a
provision regard being had to the nature of the right. The
nature of social control which includes public interest has a
role. The conception of social interest has to be borne in
mind while considering reasonableness of the restriction
imposed on a right. The social interest principle would
include the felt needs of the society.xx xx xx
194. Needless to emphasise that when a law limits a
constitutional right which many laws do, such limitation is
constitutional if it is proportional. The law imposing restriction is
proportional if it is meant to achieve a proper purpose, and if the
measures taken to achieve such a purpose are rationally
connected to the purpose, and such measures are necessary.
Such limitations should not be arbitrary or of an excessive
nature beyond what is required in the interest of the public.Reasonableness is judged with reference to the objective which
the legislation seeks to achieve, and must not be in excess of
that objective (see P.P. Enterprisesv. Union of India). Further,
the reasonableness is examined in an objective manner from
the standpoint of the interest of the general public and not from
the point of view of the person upon whom the restrictions are
imposed or abstract considerations (see Mohd. Hanif Quareshi
v. State of Bihar)On independent examination of the matter, the aforesaid
exercise undertaken in the Binoy Viswam is hereby affirmed as
we are in agreement therewith. We, thus, hold that the provisions
Writ Petition (Civil) No. 494 of 2012 connected matters Page 503 of 567
of Section 139AA of the Income Tax Act, 1961 meet the triple testof right to privacy, contained in K.S. Puttaswamy.
Prevention of Money Laundering Rules:
426) The petitioners have challenged amendment to Rule 9 of the
Prevention of Money Laundering (Maintenance of Records)
Rules, 2005, (Rules, 2005) which was amended by Prevention of
Money Laundering (Maintenance of Records) Seventh
Amendment Rules, 2017. Rule 9 of the aforesaid Rules is
amended by Second Amendment Rules, 2017 whereby following
additions are made. The amendment reads as under:
“(b) in rule 9, for sub-rule (4) to sub-rule (9), the following
sub-rules shall be substituted, namely:-(4) Where the client is an individual, who is eligible to be
enrolled for an Aadhaar number, he shall for the purpose of
sub-rule (1) submit to the reporting entity,-(a) the Aadhaar number issued by the Unique
Identification Authority of India; and(b) the Permanent Account Number or Form No. 60 as
defined in Income Tax Rules, 1962,and such other documents including in respect of the
nature of business and financial status of the client as may
be required by the reporting entity:Provided that where an Aadhaar number has not
been assigned to a client, the client shall furnish proof of
application of enrolment for Aadhaar and in case the
Permanent Account Number is not submitted, one certified
copy of an ‘officially valid document’ shall be submitted.Writ Petition (Civil) No. 494 of 2012 connected matters Page 504 of 567
Provided further that photograph need not be
submitted by a client falling under clause (b) of sub-rule (1).(4A) Where the client is an individual, who is not eligible to
be enrolled for an Aadhaar number, he shall for the
purpose of sub-rule (1), submit to the reporting entity, the
Permanent Account Number or Form No. 60 as defined in
the Income Tax Rules, 1962:Provided that if the client does not submit the
Permanent Account Number, he shall submit one certified
copy of an ‘officially valid document’ containing details of
his identity and address, one recent photograph and such
other documents including in respect of the nature or
business and financial status of the client as may be
required by the reporting entity.(5) Notwithstanding anything contained in sub-rules (4)
and (4A), an individual who desires to open a small
account in a banking company may be allowed to open
such an account on production of a self-attested
photograph and affixation of signature or thumb print, as
the case may be, on the form for opening the account:Provided that-
(i) the designated officer of the banking company, while
opening the small account, certifies under his signature
that the person opening the account has affixed his
signature or thumb print, as the case may be, in his
presence;(ii) the small account shall be opened only at Core
Banking Solution linked banking company branches or in a
branch where it is possible to manually monitor and ensure
that foreign remittances are not credited to a small account
and that the stipulated limits on monthly and annual
aggregate of transactions and balance in such accounts
are not breached, before a transaction is allowed to take
place;(iii) the small account shall remain operational initially for
a period of twelve months, and thereafter for a further
period of twelve months if the holder of such an account
provides evidence before the banking company of having
applied for any of the officially valid documents within
twelve months of the opening of the said account, with the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 505 of 567
entire relaxation provisions to be reviewed in respect of the
said account after twenty-four months;(iv) the small account shall be monitored and when there
is suspicion of money laundering or financing of terrorism
or other high risk scenarios, the identity of client shall be
established through the production of officially valid
documents, as referred to in sub-rule (4) and the Aadhaar
number of the client or where an Aadhaar number has not
been assigned to the client, through the production of proof
of application towards enrolment for Aadhaar along with an
officially valid document;Provided further that if the client is not eligible to be
enrolled for an Aadhaar number, the identity of client shall
be established through the production of an officially valid
document;(v) the foreign remittance shall not be allowed to be
credited into the small account unless the identity of the
client is fully established through the production of officially
valid documents, as referred to in sub-rule (4) and the
Aadhaar number of the client or where an Aadhaar number
has not been assigned to the client, through the production
of proof of application towards enrolment for Aadhaar along
with an officially valid document:Provided that if the client is not eligible to be enrolled
for the Aadhaar number, the identity of client shall be
established through the production of an officially valid
document.(6) Where the client is a company, it shall for the
purposes of sub-rule (1), submit to the reporting entity the
certified copies of the following documents:-(i) Certificate of incorporation;
(ii) Memorandum and Articles of Association;
(iii) A resolution from the Board of Directors and power
of attorney granted to its managers, officers or employees
to transact on its behalf;(iv) (a) Aadhaar numbers; and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 506 of 567
(b) Permanent Account Numbers or Form 60 as defined
in the Income Tax Rules, 1962,issued to managers, officers or employees holding an
attorney to transact on the company’s behalf or where an
Aadhaar number has not been assigned, proof of
application towards enrolment for Aadhaar and in case
Permanent Account Number is not submitted an officially
valid document shall be submitted:Provided that for the purpose of this clause if the
managers, officers or employees holding an attorney to
transact on the company’s behalf are not eligible to be
enrolled for Aadhaar number and do not submit the
Permanent Account Number, certified copy of an officially
valid document shall be submitted.(7) Where the client is a partnership firm, it shall, for the
purposes of sub-rule (1), submit to the reporting entity the
certified copies of the following documents:-(i) registration certificate;
(ii) partnership deed; and
(iii) (a) Aadhaar number; and
(b) Permanent Account Number or Form 60 as defined
in the Income Tax Rules, 1962,issued to the person holding an attorney to transact on its
behalf or where an Aadhaar number has not been
assigned, proof of application towards enrolment for
Aadhaar and in case Permanent Account Number is not
submitted an officially valid document shall be submitted:Provided that for the purpose of this clause, if the
person holding an attorney to transact on the company’s
behalf is not eligible to be enrolled for Aadhaar number and
does not submit the Permanent Account Number, certified
copy of an officially valid document shall be submitted.(8) Where the client is a trust, it shall, for the purposes of
sub-rule (1) submit to the reporting entity the certified
copies of the following documents:-(i) registration certificate;
Writ Petition (Civil) No. 494 of 2012 connected matters Page 507 of 567
(ii) trust deed; and(iii) (a) Aadhaar number; and
(b) Permanent Account Number or Form 60 as defined
in the Income Tax Rules, 1962,issued to the person holding an attorney to transact on its
behalf or where Aadhaar number has not been assigned,
proof of application towards enrolment for Aadhaar and in
case Permanent Account Number is not submitted an
officially valid document shall be submitted:Provided that for the purpose of this clause if the
person holding an attorney to transact on the company’s
behalf is not eligible to be enrolled for Aadhaar number and
does not submit the Permanent Account Number, certified
copy of an officially valid document shall be submitted.(9) Where the client is an unincorporated association or
a body of individuals, it shall submit to the reporting entity
the certified copies of the following documents:-(i) resolution of the managing body of such association
or body of individuals;(ii) power of attorney granted to him to transact on its
behalf;(iii) (a) the Aadhaar number; and
(b) Permanent Account Number or Form 60 as defined
in the Income Tax Rules, 1962,issued to the person holding an attorney to transact on its
behalf or where Aadhaar number has not been assigned,
proof of application towards enrolment for Aadhaar and in
case the Permanent Account Number is not submitted an
officially valid document shall be submitted; and(iv) such information as may be required by the reporting
entity to collectively establish the legal existence of such an
association or body of individuals:Provided that for the purpose of this clause if the
person holding an attorney to transact on the company’s
Writ Petition (Civil) No. 494 of 2012 connected matters Page 508 of 567
behalf is not eligible to be enrolled for Aadhaar number and
does not submit the Permanent Account Number, certified
copy of an officially valid document shall be submitted.”(c) after sub-rule (14), the following sub-rules shall be
inserted, namely,-(15) Any reporting entity, at the time of receipt of the
Aadhaar number under provisions of this rule, shall carry
out authentication using either e-KYC authentication facility
or Yes/No authentication facility provided by Unique
Identification Authority of India.(16) In case the client referred to in sub-rules (4) to (9) of
rule 9 is not a resident or is a resident in the States of
Jammu and Kashmir, Assam or Meghalaya and does not
submit the Permanent Account Number, the client shall
submit to the reporting entity one certified copy of officially
valid document containing details of his identity and
address, one recent photograph and such other document
including in respect of the nature of business and financial
status of the client as may be required by the reporting
entity.(17) (a) In case the client, eligible to be enrolled for
Aadhaar and obtain a Permanent Account Number,
referred to in sub-rules (4) to (9) of rule 9 does not submit
the Aadhaar number or the Permanent Account Number at
the time of commencement of an account based
relationship with a reporting entity, the client shall submit
the same within a period of six months from the date of the
commencement of the account based relationship:Provided that the clients, eligible to be enrolled for
Aadhaar and obtain the Permanent Account Number,
already having an account based relationship with
reporting entities prior to date of this notification, the client
shall submit the Aadhaar number and Permanent Account
Number by 31st December, 2017.(b) As per regulation 12 of the Aadhaar (Enrolment and
Update) Regulations, 2016, the local authorities in the
State Governments or Union-territory Administrations have
become or are in the process of becoming UIDAI
Registrars for Aadhaar enrolment and are organising
special Aadhaar enrolment camps at convenient locations
for providing enrolment facilities in consultation with UIDAI
Writ Petition (Civil) No. 494 of 2012 connected matters Page 509 of 567
and any individual desirous of commencing an account
based relationship as provided in this rule, who does not
possess the Aadhaar number or has not yet enrolled for
Aadhaar, may also visit such special Aadhaar enrolment
camps for Aadhaar enrolment or any of the Aadhaar
enrolment centres in the vicinity with existing registrars of
UIDAI.(c) In case the client fails to submit the Aadhaar number
and Permanent Account Number within the aforesaid six
months period, the said account shall cease to be
operational till the time the Aadhaar number and
Permanent Account Number is submitted by the client:Provided that in case client already having an
account based relationship with reporting entities prior to
date of this notification fails to submit the Aadhaar number
and Permanent Account Number by 31st December, 2017,
the said account shall cease to be operational till the time
the Aadhaar number and Permanent Account Number is
submitted by the client.(18) In case the identity information relating to the
Aadhaar number or Permanent Account Number submitted
by the client referred to in sub-rules (4) to (9) of rule 9 does
not have current address of the client, the client shall
submit an officially valid documents to the reporting entity.”As can be seen from the above, linking of Aadhaar with the
bank account is now mandatory. It applies not only to those bank
accounts which would be opened after the bringing into force the
amendment but even the existing accounts as well.
427) Linking of a banking account to Aadhaar is challenged as
violative of Articles 14, 19(1)(g) and 21 of the Constitution and
also of Prevention of Money Laundering Act, 2002. Elaborate
submissions were made by Mr. Arvind Datar on the aforesaid
Writ Petition (Civil) No. 494 of 2012 connected matters Page 510 of 567
aspects. It was argued that those persons who do not choose toenrol for Aadhaar number would not be in a position to open the
bank account or even operate the existing bank account and
there is no valid explanation as to why all bank accounts had to
be authenticated. It was also argued that provisions of the Rule
referred to companies, firms, trust etc. as well, though the
Aadhaar Act is meant for establishing identity of individuals only.
It was further submitted that in case a person fails to link Aadhaar
with the bank account, such person would be rendered ineligible
to operate the bank account, which would amount to forfeiting her
money lying in the account which belongs to her. This amounts
to depriving the person from her property and is, therefore,
violative of Article 300A of the Constitution as such a deprivation
can take place only by primary legislation and not by subordinate
legislation in the form of Rules. Much emphasis was also laid on
the argument that the amended Rule does not pass the
proportionality test.
428) Mr. Tushar Mehta, learned Additional Solicitor General, refuted
the aforesaid submissions. He pointed out the objective with
which the Prevention of Money Laundering Act was enacted,
namely, to curb money laundering and black money, which is
Writ Petition (Civil) No. 494 of 2012 connected matters Page 511 of 567
becoming a menace. Therefore, the amendment to Rules servesa legitimate State aim. He argued that the Rules are not arbitrary
and satisfies the proportionality test also, having regard to the
laudable objective which it seeks to serve.
429) After giving our thoughtful consideration to the various aspects,
we feel that it is not even necessary to deal with each and every
contention raised by the petitioners. Our considered opinion is
that it does not meet the test of proportionality and is also
violative of right to privacy of a person which extends to banking
details.
430) This Court has held in Ram Jethmalani Ors. v. Union of India
Ors.155 that revelation of bank details without prima facie ground
of wrong doing would be violative of right to privacy. The said
decision has been approved in K.S. Puttaswamy. Under the garb
of prevention of money laundering or black money, there cannot
be such a sweeping provision which targets every resident of the
country as a suspicious person. Presumption of criminality is
treated as disproportionate and arbitrary.
431) Nobody would keep black money in the bank account. We
accept the possibility of opening an account in an assumed name
155(2011) 8 SCC 1
Writ Petition (Civil) No. 494 of 2012 connected matters Page 512 of 567
and keeping black money therein which can be laundered aswell. However, the persons doing such an Act, if at all, would be
very few. More importantly, those having bank accounts with
modest balance and routine transactions can be safely ruled out.
Therefore, the provision in the present form does not meet the
test of proportionality. Therefore, for checking this possible
malice, there cannot be a mandatory provision for linking of every
bank account.
432) In Lal Babu Hussein v. Electoral Registration Officer and
Others156, this Court had struck down the order of the Electoral
Officer asking the residents of a particular en masse to prove
their identity as unconstitutional. The Court held that the
Electoral officer asking residents of a particular area en masse to
prove their identity was unconstitutional. In the case, the EO
went on the assumption that all inhabitants of a particular area
were foreigners, notwithstanding their name appearing in earlier
electoral rolls. The court held the following:
(a) Right to vote cannot be disallowed by insisting only on 4
proofs of identity-voters can rely on any other proof of identity and
obtain right to vote.
(b) Notices were quashed because they failed to distinguish
156(1995) 3 SCC 100
Writ Petition (Civil) No. 494 of 2012 connected matters Page 513 of 567
between existing voters who had voted several times and newvoters.
(c) Large-scale presumption of illegality impermissible.
433) This linking is made compulsory not only for opening a new bank
account but even for existing bank accounts with a stipulation that
if the same is not done then the account would be deactivated,
with the result that the holder of the account would not be entitled
to operate the bank account till the time seeding of the bank
account with Aadhaar is done. This amounts to depriving a
person of his property. We find that this move of mandatory
linking of Aadhaar with bank account does not satisfy the test of
proportionality. To recapitulate, the test of proportionality requires
that a limitation of the fundamental rights must satisfy the
following to be proportionate: (i) it is designated for a proper
purpose; (ii) measures are undertaken to effectuate the limitation
are rationally connected to the fulfilment of the purpose; (iii) there
are no alternative less invasive measures; and (iv) there is a
proper relation between the importance of achieving the aim and
the importance of limiting the right.
434) The Rules are disproportionate for the following reasons:
(a) a mere ritualistic incantation of “money laundering”, “black
Writ Petition (Civil) No. 494 of 2012 connected matters Page 514 of 567
money” does not satisfy the first test;(b) no explanations have been given as to how mandatory
linking of every bank account will eradicate/reduce the problems
of “money laundering” and “black money”;
(c) there are alternative methods of KYC which the banks are
already undertaking, the state has not discharged its burden as to
why linking of Aadhaar is imperative. We may point out that RBI’s
own Master Direction (KYC Direction, 2016) No. DBR.AML.BC.
No. 81/14.01.001/2015-16 allows using alternatives to Aadhaar to
open bank accounts.
435) There may be legitimate State aim for such a move as it aims at
prevention of money laundering and black money. However,
there has not been a serious thinking while making such a
provision applicable for every bank account. Maintaining back
account in today’s world has almost become a necessity. The
Government itself has propagated the advantages thereof and is
encouraging people to open the bank account making it possible
to have one even with Zero Balance under the Pradhan Mantri
Jan Dhan Yojana. The Government has taken various measures
to give a boost to digital economy. Under these schemes,
millions of persons, who are otherwise poor, are opening their
bank accounts. They are also becoming habitual to the good
Writ Petition (Civil) No. 494 of 2012 connected matters Page 515 of 567
practice of entering into transactions through their banks andeven by using digital modes for operation of the bank accounts.
Making the requirement of Aadhaar compulsory for all such and
other persons in the name of checking money laundering or black
money is grossly disproportionate. There should have been a
proper study about the methods adopted by persons who indulge
in money laundering, kinds of bank accounts which such persons
maintain and target those bank accounts for the purpose of
Aadhaar. It has not been done.
436) We, thus, hold the amendment to Rule 9, by the Seventh
Amendment Rules, 2017, in the present form, to be
unconstitutional.
Linking of Mobile Number with Aadhaar
437) By a Circular dated March 23, 2017, the Department of
Telecommunications has directed that all licensees shall reverify
the existing mobile subscribers (pre-paid and post-paid) through
Aadhaar based e-KYC process. In fine, it amounts to mandatory
linking of mobile connections with Aadhaar, which requirement is
not only in respect of those individuals who would be becoming
mobile subscribers, but applies to existing subscribers as well.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 516 of 567
438) It was the submission of the petitioners that such a linking of the
SIM card with Aadhaar number violates their right to privacy. It is
argued that since it is a fundamental right, the restrictions/curb
thereupon in the form of said linking does not satisfy the tests laid
down in K.S. Puttaswamy inasmuch as it is neither backed by any
law nor it serves any legitimate state aim nor does it meet the
requirement of proportionality test.
439) At the outset, it may be mentioned that the respondents have not
been able to show any statutory provision which permits the
respondents to issue such a circular. It is administrative in
nature. The respondents have, however, tried to justify the same
on the ground that there have been numerous instances where
non-verification of SIM cards have posed serious security threats.
Having regard to the same, this Court had given direction in
Lokniti Foundation v. Union of India Anr.157 for the linking of SIM
card with Aadhaar and it is pursuant to those directions that the
Telecom Regulatory Authority of India (TRAI) recommended this
step. Therefore, as per the respondents, Circular dated March
23, 2017 is the outcome of the aforesaid directions and
recommendations which should be treated as backing of law.
According to them, direction of this Court is a law under Article
157 (2017) 7 SCC 155
Writ Petition (Civil) No. 494 of 2012 connected matters Page 517 of 567
141 of the Constitution. In addition, it is also argued that sinceSection 4 of the Indian Telegraph Act, 1885 empowers the
Central Government to issue licenses for establishing,
maintaining and working telegraphs, it is within the power of the
Central Government to grant such licenses with condition and,
therefore, Circular dated March 23, 2017 may be read as
condition for grant of licenses. On this premise, attempt is to
show that the Circular is issued in exercise of the powers
contained in Section 4 of the Indian Telegraph Act, 1885 which is
the force of law.
440) In order to appreciate the respondents’ contentions, we
reproduce the relevant portion of Circular dated March 23, 2017,
which reads as under:
“Hon’ble Supreme Court, in its order dated 06.02.2017
passed in Writ Petition (C) No. 607/2016 filed by Lokniti
Foundation v/s Union of India, while taking into cognizance
of “Aadhaar based e-KYC process for issuing new
telephone connection” issued by the Department, has inter-
alia observed that “an effective process has been evolved
to ensure identity verification, as well as, the addresses of
all mobile phone subscribers for new subscribers. In the
near future, and more particularly, within one year from
today, a similar verification will be completed, in case of
existing subscribers.” This amounts to a direction which is
to be completed within a time frame of one year.2. A meeting was held on 13.02.2017 in the Department
with the telecom industry wherein UIDAI, TRAI and PMO
representatives also participated to discuss the way
forward to implement the directions of Hon’ble Supreme
Court. Detailed discussions and deliberations were held in
Writ Petition (Civil) No. 494 of 2012 connected matters Page 518 of 567
the meeting. The suggestions received from the industry
have been examined in the Department.3. Accordingly, after taking into consideration the
discussions held in the meeting and suggestions received
from telecom industry, the undersigned is directed to
convey the approval of competent authority that all
Licensees shall re-verify all existing mobile subscribers
(prepaid and postpaid) through Aadhaar based e-KYC
process as mentioned in this office letter No. 800-29/2010-
VAS dated 16.08.2016. The instructions mentioned in
subsequent paragraphs shall be strictly followed while
carrying out the re-verification exercise.”441) In the first instance, it may be noticed that reference is made to
the judgment of this Court in Lokniti Foundation which has
prompted the Ministry of Communications to issue this circular.
Paragraph 1 of the Circular itself states that the observations of
the Court in Lokniti Foundation amount to a direction. Thus, the
Circular is not issued in exercise of powers under Section 4 of the
Indian Telegraph Act, 1885 (though that itself would be debatable
as to whether Section 4 gives such a power at all). Insofar as
observations of this Court in that case are concerned, it is clear
that in the said brief order, this Court did not go into the issue as
to whether linking of SIM card with Aadhaar would be violate of
privacy rights of the citizens. In that petition filed as a Public
Interest Litigation, a prayer was made to the effect that identity of
each subscriber and also the numbers should be verified so that
unidentified and unverified subscribers are not allowed to misuse
Writ Petition (Civil) No. 494 of 2012 connected matters Page 519 of 567
mobile numbers. In response, the Union of India had filed thecounter affidavit bringing to the notice of the Court that the
Department had launched Aadhaar based e-KYC for issuing
mobile connections. Based on this statement, orders were
passed by this Court. Lis, which is the subject matter of instant
petitions, was not raised in the said case. Obviously, the Court
did not deliberate on the aspects of necessity of such a provision
in the light of right to privacy. It was a case where both the sides
were at ad idem. In the absence of any such issue or discussion
thereupon, such a case cannot be treated as precedent and as a
corollary it cannot be termed as ‘law’ within the meaning of Article
13 or Article 141 of the Constitution. Moreover, we are unable to
read the order in Lokniti Foundation as a direction of the Court. It
simply disposed of the petition after recording the submission of
the Union of India to the effect that the grievance of the petitioner
therein stood redressed by evolving the procedure of linking. On
that the Court simply observed that undertaking given to this
Court will be seriously taken and given effect to. No doubt, the
Central Government, as a licensor, can impose conditions while
granting licenses under Section 4 of the Indian Telegraph Act,
1885. However, such directions/conditions have to be legally
valid. When it affects the rights of the third parties (like the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 520 of 567
petitioners herein who are not party to the licenses granted by theGovernment to the Telecom Service Providers) they have a right
to challenge such directions. Here, the case made out by the
petitioners is that it infringes their right to privacy.
442) We are of the opinion that not only such a circular lacks backing
of a law, it fails to meet the requirement of proportionality as well.
It does not meet ‘necessity stage’ and ‘balancing stage’ tests to
check the primary menace which is in the mind of the respondent
authorities. There can be other appropriate laws and less
intrusive alternatives. For the misuse of such SIM cards by a
handful of persons, the entire population cannot be subjected to
intrusion into their private lives. It also impinges upon the
voluntary nature of the Aadhaar scheme. We find it to be
disproportionate and unreasonable state compulsion. It is to be
borne in mind that every individual/resident subscribing to a SIM
card does not enjoy the subsidy benefit or services mentioned in
Section 7 of the Act.
We, therefore, have no hesitation in declaring the Circular
dated March 23, 2017 as unconstitutional.
Violation of the orders passed by this Court:
Whether certain actions of the respondents are in contravention
of the interim orders passed by the Court, if so, the effect
Writ Petition (Civil) No. 494 of 2012 connected matters Page 521 of 567
thereof?443) It was vehemently argued that this Court had passed number of
interim orders (which have already been taken note of in the
beginning of this judgment) categorically stating that the Aadhaar
enrolment is voluntary; that no person would be forced to enrol
under the scheme; that a person would be told about the
voluntary nature of the scheme; and that enrolment shall not be
given to any illegal migrant. As per the petitioners,
notwithstanding these orders, the Central Government as well as
the State Governments have issued various notifications
requiring Aadhaar authentication for benefits, subsidies and
schemes mandatory. In this manner, according to the petitioners,
the respondents have violated the orders of this Court and it is
the majesty of the Court which is at stake.
444) It is not in dispute that the aforesaid orders were passed when
the Aadhaar Act had not come into force. After the enactment,
Section 7 had altered the position statutorily. The notifications
and circulars etc. are issued under this provision. Therefore,
technically speaking, it cannot be held that these circulars are
issued in contravention of the orders passed by this Court.
445) We feel that it would have been better had a clarification been
Writ Petition (Civil) No. 494 of 2012 connected matters Page 522 of 567
obtained from the Court after the passing of the Aadhaar Actbefore issuing such circulars and orders under Section 7. When
the matter is sub judice in the Court and certain orders operating,
the respondents should have shown some fairness by taking that
route, which expectation would be high where the respondent is
the State. However, it would be difficult to hold the respondents
in contempt of the orders passed by this Court. We may note
that similar argument was advanced in Binoy Viswam, namely,
insertion of Section 139AA in the Income Tax Act was in breach of
interim orders passed by this Court. This argument was repelled
in the following manner:
“99. Main emphasis, however, is on the plea that
Parliament or any State Legislature cannot pass a law that
overrules a judgment thereby nullifying the said decision,
that too without removing the basis of the decision. This
argument appears to be attractive inasmuch as few orders
are passed by this Court in pending writ petitions which are
to the effect that the enrolment of Aadhaar would be
voluntary. However, it needs to be kept in mind that the
orders have been passed in the petitions where Aadhaar
Scheme floated as an executive/administrative measure
has been challenged. In those cases, the said orders are
not passed in a case where the Court was dealing with a
statute passed by Parliament. Further, these are interim
orders as the Court was of the opinion that till the matter is
decided finally in the context of right to privacy issue, the
implementation of the said Aadhaar Scheme would remain
voluntary. In fact, the main issue as to whether Aadhaar
card scheme whereby biometric data of an individual is
collected violates right to privacy and, therefore, is
offensive of Article 21 of the Constitution or not is yet to be
decided. In the process, the Constitution Bench is also
called upon to decide as to whether right to privacy is a
part of Article 21 of the Constitution at all. Therefore, no
Writ Petition (Civil) No. 494 of 2012 connected matters Page 523 of 567
final decision has been taken. In a situation like this, it
cannot be said that Parliament is precluded from or it is
rendered incompetent to pass such a law. That apart, the
argument of the petitioners is that the basis on which the
aforesaid orders are passed has to be removed, which is
not done. According to the petitioners, it could be done only
by making the Aadhaar Act compulsory. It is difficult to
accept this contention for two reasons: first, when the
orders passed by this Court which are relied upon by the
petitioners were passed when the Aadhaar Act was not
even enacted. Secondly, as already discussed in detail
above, the Aadhaar Act and the law contained in Section
139-AA of the Income Tax Act deal with two different
situations and operate in different fields. This argument of
legislative incompetence also, therefore, fails.”Summary and Conclusions:
446) (a) The architecture and structure of the Aadhaar Act reveals
that the UIDAI is established as a statutory body which is given
the task of developing the policy, procedure and system for
issuing Aadhaar numbers to individuals and also to perform
authentication thereof as per the provisions of the Act. For the
purpose of enrolment and assigning Aadhaar numbers, enrolling
agencies are recruited by the Authority. All the residents in India
are eligible to obtain an Aadhaar number. To enable a resident to
get Aadhaar number, he is required to submit demographic as
well as biometric information i.e., apart from giving information
relating to name, date of birth and address, biometric information
in the form of photograph, fingerprint, iris scan is also to be
provided. Aadhaar number given to a particular person is treated
Writ Petition (Civil) No. 494 of 2012 connected matters Page 524 of 567
as unique number as it cannot be reassigned to any otherindividual.
(b) Insofar as subsidies, benefits or services to be given by the
Central Government or the State Government, as the case may
be, is concerned, these Governments can mandate that receipt of
these subsidies, benefits and services would be given only on
furnishing proof of possession of Aadhaar number (or proof of
making an application for enrolment, where Aadhaar number is
not assigned). An added requirement is that such individual
would undergo authentication at the time of receiving such
benefits etc. A particular institution/body from which the aforesaid
subsidy, benefit or service is to be claimed by such an individual,
the intended recipient would submit his Aadhaar number and is
also required to give her biometric information to that agency. On
receiving this information and for the purpose of its
authentication, the said agency, known as Requesting Entity
(RE), would send the request to the Authority which shall perform
the job of authentication of Aadhaar number. On confirming the
identity of a person, the individual is entitled to receive subsidy,
benefit or service. Aadhaar number is permitted to be used by
the holder for other purposes as well.
(c) In this whole process, any resident seeking to obtain an
Writ Petition (Civil) No. 494 of 2012 connected matters Page 525 of 567
Aadhaar number is, in the first instance, required to submit herdemographic information and biometric information at the time of
enrolment. She, thus, parts with her photograph, fingerprint and
iris scan at that stage by giving the same to the enrolling agency,
which may be a private body/person. Likewise, every time when
such Aadhaar holder intends to receive a subsidy, benefit or
service and goes to specified/designated agency or person for
that purpose, she would be giving her biometric information to
that RE, which, in turn, shall get the same authenticated from the
Authority before providing a subsidy, benefit or service.
(d) Attack of the petitioners to the Aadhaar programme and its
formation/structure under the Aadhaar Act is founded on the
arguments that it is a grave risk to the rights and liberties of the
citizens of this country which are secured by the Constitution of
India. It militates against the constitutional abiding values and its
foundational morality and has the potential to enable an intrusive
state to become a surveillance state on the basis of information
that is collected in respect of each individual by creation of a joint
electronic mesh. In this manner, the Act strikes at the very
privacy of each individual thereby offending the right to privacy
which is elevated and given the status of fundamental right by
tracing it to Articles 14, 19 and 21 of the Constitution of India by a
Writ Petition (Civil) No. 494 of 2012 connected matters Page 526 of 567
nine Judge Bench judgment of this Court in K.S. Puttaswamy.(e) The respondents, on the other hand, have attempted to
shake the very foundation of the aforesaid structure of the
petitioners’ case. They argue that in the first instance, minimal
biometric information of the applicant, who intends to have
Aadhaar number, is obtained which is also stored in CIDR for the
purpose of authentication. Secondly, no other information is
stored. It is emphasised that there is no data collection in respect
of religion, caste, tribe, language records of entitlement, income
or medical history of the applicant at the time of Aadhaar
enrolment. Thirdly, the Authority also claimed that the entire
Aadhaar enrolment eco-system is foolproof inasmuch as within
few seconds of the biometrics having been collected by the
enrolling agency, the said information gets transmitted the
Authorities/CIDR, that too in an encrypted form, and goes out of
the reach of the enrolling agency. Same is the situation at the
time of authentication as biometric information does not remain
with the requesting agency. Fourthly, while undertaking the
authentication process, the Authority simply matches the
biometrics and no other information is received or stored in
respect of purpose, location or nature or transaction etc.
Therefore, the question of profiling does not arise at all.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 527 of 567
(f) In the aforesaid scenario, it is necessary, in the first
instance, to find out the extent of core information, biometric as
well as demographic, that is collected and stored by the Authority
at the time of enrolment as well as at the time of authentication.
This exercise becomes necessary in order to consider the
argument of the petitioners about the profiling of the Aadhaar
holders. On going through this aspect, on the basis of the
powerpoint presentation given by Dr. Ajay Bhushan Pandey, CEO
of UIDAI, and the arguments of both the sides, including the
questions which were put by the petitioners to Dr. Pandey and the
answers thereupon, the Court has come to the conclusion that
minimal possible data, demographic and biometric, is obtained
from the Aadhaar holders.
(g) The Court also noticed that the whole architecture of Aadhaar
is devised to give unique identity to the citizens of this country.
No doubt, a person can have various documents on the basis of
which that individual can establish her identify. It may be in the
form of a passport, PAN card, ration card and so on. For the
purpose of enrolment itself number of documents are prescribed
which an individual can produce on the basis of which Aadhaar
card can be issued. Thus, such documents, in a way, are also
proof of identity. However, there is a fundamental difference
Writ Petition (Civil) No. 494 of 2012 connected matters Page 528 of 567
between the Aadhaar card as a mean of identity and otherdocuments through which identity can be established. Enrolment
for Aadhaar card also requires giving of demographic information
as well as biometric information which is in the form of iris and
fingerprints. This process eliminates any chance of duplication.
It is emphasised that an individual can manipulate the system by
having more than one or even number of PAN cards, passports,
ration cards etc. When it comes to obtaining Aadhaar card, there
is no possibility of obtaining duplicate card. Once the biometric
information is stored and on that basis Aadhaar card is issued, it
remains in the system with the Authority. Wherever there would
be a second attempt for enrolling for Aadhaar and for this
purpose same person gives his biometric information, it would be
immediately get matched with the same biometric information
already in the system and the second request would stand
rejected. It is for this reason the Aadhaar card is known as
Unique Identification (UID). Such an identity is unparalleled.
(h) There is, then, another purpose for having such a system of
issuing unique identification cards in the form of Aadhaar card. A
glimpse thereof is captured under the heading ‘Introduction’
above, while mentioning how and under what circumstances the
whole project was conceptualised. To put it tersely, in addition to
Writ Petition (Civil) No. 494 of 2012 connected matters Page 529 of 567
enabling any resident to obtain such unique identification proof, itis also to empower marginalised section of the society,
particularly those who are illiterate and living in abject poverty or
without any shelter etc. It gives identity to such persons also.
Moreover, with the aid of Aadhaar card, they can claim various
privileges and benefits etc. which are actually meant for these
people.
(i) Identity of a person has a significance for every individual in
his/her life. In a civilised society every individual, on taking birth,
is given a name. Her place of birth and parentage also becomes
important as she is known in the society and these demographic
particulars also become important attribute of her personality.
Throughout their lives, individuals are supposed to provide such
information: be it admission in a school or college or at the time of
taking job or engaging in any profession or business activity, etc.
When all this information is available in one place, in the form of
Aadhaar card, it not only becomes unique, it would also qualify as
a document of empowerment. Added with this feature, when an
individual knows that no other person can clone her, it assumes
greater significance.
(j) Thus, the scheme by itself can be treated as laudable when
it comes to enabling an individual to seek Aadhaar number, more
Writ Petition (Civil) No. 494 of 2012 connected matters Page 530 of 567
so, when it is voluntary in nature. Howsoever benevolent thescheme may be, it has to pass the muster of constitutionality.
According to the petitioners, the very architecture of Aadhaar is
unconstitutional on various grounds.
(k) The Court has taken note of the heads of challenge of the
Act, Scheme and certain Rules etc. and clarified that the matter is
examined with objective examination of the issues on the
touchstone of the constitutional provisions, keeping in mind the
ethos of constitutional democracy, rule of law, human rights and
other basic features of the Constitution.
Discussing the scope of judicial review, the Court has
accepted that apart from two grounds noticed in Binoy Viswam,
on which legislative Act can be invalidated [(a) the Legislature
does not have competence to make the law; and b) law made is
in violation of fundamental rights or any other constitutional
provision], another ground, namely, manifest arbitrariness, can
also be the basis on which an Act can be invalidated. The issues
are examined having regard to the aforesaid scope of judicial
review.
(l) From the arguments raised by the petitioners and the
grounds of challenge, it becomes clear that the main plank of
challenge is that the Aadhaar project and the Aadhaar Act
Writ Petition (Civil) No. 494 of 2012 connected matters Page 531 of 567
infringes right to privacy. Inbuilt in this right to privacy is the rightto live with dignity, which is a postulate of right to privacy. In the
process, discussion leads to the issue of proportionality, viz.
whether measures taken under the Aadhaar Act satisfy the
doctrine of proportionality.
(m) In view of the above, the Court discussed the contours of
right to privacy, as laid down in K.S. Puttaswamy, principle of
human dignity and doctrine of proportionality. After taking note of
the discussion contained in different opinions of six Hon’ble
Judges, it stands established, without any pale of doubt, that
privacy has now been treated as part of fundamental right. The
Court has held that, in no uncertain terms, that privacy has
always been a natural right which given an individual freedom to
exercise control over his or her personality. The judgment further
affirms three aspects of the fundamental right to privacy, namely:
(i) intrusion with an individual’s physical body,
(ii) informational privacy and
(iii) privacy of choice.
(n) As succinctly put by Nariman, J., first aspect involves the
person himself/herself and guards a person’s rights relatable to
his physical body thereby controlling the uncalled invasion by the
State. Insofar as second aspect, namely, informational privacy is
Writ Petition (Civil) No. 494 of 2012 connected matters Page 532 of 567
concerned, it does not deal with a person’s body but deals with aperson’s mind. In this manner, it protects a person by giving her
control over the dissemination of material that is personal to her
and disallowing unauthorised use of such information by the
State. Third aspect of privacy relates to individual’s autonomy by
protecting her fundamental personal choices. These aspects
have functional connection and relationship with dignity. In this
sense, privacy is a postulate of human dignity itself. Human
dignity has a constitutional value and its significance is
acknowledged by the Preamble. Further, by catena of judgments,
human dignity is treated as fundamental right as a facet not only
of Article 21, but that of right to equality (Article 14) and also part
of bouquet of freedoms stipulated in Article 19. Therefore, privacy
as a right is intrinsic of freedom, liberty and dignity. Viewed in this
manner, one can trace positive and negative contents of privacy.
The negative content restricts the State from committing an
intrusion upon the life and personal liberty of a citizen. Its positive
content imposes an obligation on the State to take all necessary
measures to protect the privacy of the individual.
(o) In developing the aforesaid concepts, the Court has been
receptive to the principles in international law and international
instruments. It is a recognition of the fact that certain human
Writ Petition (Civil) No. 494 of 2012 connected matters Page 533 of 567
rights cannot be confined within the bounds of geographicallocation of a nation but have universal application. In the
process, the Court accepts the concept of universalisation of
human rights, including the right to privacy as a human right and
the good practices in developing and understanding such rights in
other countries have been welcomed. In this hue, it can also be
remarked that comparative law has played a very significant role
in shaping the aforesaid judgment on privacy in Indian context,
notwithstanding the fact that such comparative law has only
persuasive value.
The whole process of reasoning contained in different
opinions of the Hon’ble Judges would, thus, reflect that the
argument that it is difficult to precisely define the common
denominator of privacy, was rejected. While doing so, the Court
referred to various approaches to formulating privacy
(p) We have also remarked above, the taxonomy of privacy,
namely, on the basis of ‘harms’, ‘interest’ and ‘aggregation of
rights’. We have also discussed the scope of right to privacy with
reference to the cases at hand and the circumstances in which
such a right can be limited. In the process, we have also taken
note of the passage from the judgment rendered by Nariman, J.
in K.S. Puttaswamy stating the manner in which law has to be
Writ Petition (Civil) No. 494 of 2012 connected matters Page 534 of 567
tested when it is challenged on the ground that it violates thefundamental right to privacy.
(q) One important comment which needs to be made at this
stage relates to the standard of judicial review while examining
the validity of a particular law that allegedly infringes right to
privacy. The question is as to whether the Court is to apply ‘strict
scrutiny’ standard or the ‘just, fair and reasonableness’ standard.
In the privacy judgment, different observations are made by the
different Hon’ble Judges and the aforesaid aspect is not
determined authoritatively, may be for the reason that the Bench
was deciding the reference on the issue as to whether right to
privacy is a fundamental right or not and, in the process, it was
called upon to decide the specific questions referred to it. This
Court preferred to adopt a ‘just, fair and reasonableness’
standard which is in tune with the view expressed by majority of
Judges in their opinion. Even otherwise, this is in consonance
with the judicial approach adopted by this Court while construing
‘reasonable restrictions’ that the State can impose in public
interest, as provided in Article 19 of the Constitution. Insofar as
principles of human dignity are concerned, the Court, after taking
note of various judgments where this principle is adopted and
elaborated, summed up the essential ingredients of dignity
Writ Petition (Civil) No. 494 of 2012 connected matters Page 535 of 567
jurisprudence by noticing that the basic principle of dignity andfreedom of the individual is an attribute of natural law which
becomes the right of all individuals in a constitutional democracy.
Dignity has a central normative role as well as constitutional
value. This normative role is performed in three ways:
First, it becomes basis for constitutional rights;
Second, it serves as an interpretative principle for
determining the scope of constitutional rights; and,
Third, it determines the proportionality of a statute limiting a
constitutional right. Thus, if an enactment puts limitation on a
constitutional right and such limitation is disproportionate, such a
statute can be held to be unconstitutional by applying the doctrine
of proportionality.
(r) As per Dworkin, there are two principles about the concept
of human dignity, First principle regards an ‘intrinsic value’ of
every person, namely, every person has a special objective value
which value is not only important to that person alone but success
or failure of the lives of every person is important to all of us. It
can also be described as self respect which represents the free
will of the person, her capacity to think for herself and to control
her own life. The second principle is that of ‘personal
responsibility’, which means every person has the responsibility
Writ Petition (Civil) No. 494 of 2012 connected matters Page 536 of 567
for success in her own life and, therefore, she must use herdiscretion regarding the way of life that will be successful from her
point of view.
(s) Sum total of this exposition can be defined by explaining
that as per the aforesaid view dignity is to be treated as
‘empowerment’ which makes a triple demand in the name of
‘respect’ for human dignity, namely:
(i) respect for one's capacity as an agent to make one's own
free choices;
(ii) respect for the choices so made; and
(iii) respect for one's need to have a context and conditions
in which one can operate as a source of free and informed
choice.
(t) In the entire formulation of dignity right, ‘respect’ for an
individual is the fulcrum, which is based on the principle of
freedom and capacity to make choices and a good or just social
order is one which respects dignity via assuring ‘contexts’ and
‘conditions’ as the ‘source of free and informed choice’. The
aforesaid discourse on the concept of human dignity is from an
individual point of view. That is the emphasis of the petitioners as
well. That would be one side of the coin. A very important
feature which the present case has brought into focus is another
Writ Petition (Civil) No. 494 of 2012 connected matters Page 537 of 567
dimension of human dignity, namely, in the form of ‘commongood’ or ‘public good’. Thus, our endeavour here is to give richer
and more nuanced understanding to the concept of human
dignity.
(u) We, therefore, have to keep in mind humanistic concept of
Human Dignity which is to be accorded to a particular segment of
the society and, in fact, a large segment. Their human dignity is
based on the socio-economic rights that are read in to the
Fundamental Rights as already discussed above.
When we read socio-economic rights into human dignity,
the community approach also assumes importance along with
individualistic approach to human dignity. It has now been well
recognised that at its core, human dignity contains three
elements, namely, Intrinsic Value, Autonomy and Community
Value. These are known as core values of human dignity. These
three elements can assist in structuring legal reasoning and
justifying judicial choices in ‘hard cases’.
(v) When it comes to dignity as a community value, it
emphasises the role of the community in establishing collective
goals and restrictions on individual freedoms and rights on behalf
of a certain idea of good life. The relevant question here is in
what circumstances and to what degree should these actions be
Writ Petition (Civil) No. 494 of 2012 connected matters Page 538 of 567
regarded as legitimate in a constitutional democracy? The liberalpredicament that the state must be neutral with regard to different
conceptions of the good in a plural society is not incompatible, of
course, with limitation resulting from the necessary coexistence of
different views and potentially conflicting rights. Such
interferences, however, must be justified on grounds of a
legitimate idea of justice, an “overlapping consensus” 158 that can
be shared by most individuals and groups. Whenever such
tension arises, the task of balancing is to be achieved by the
Courts.
We would like to highlight one more significant feature
which the issues involved in the present case bring about. It is
the balancing of two facets of dignity of the same individual.
Whereas, on the one hand, right of personal autonomy is a part of
dignity (and right to privacy), another part of dignity of the same
individual is to lead a dignified life as well (which is again a facet
of Article 21 of the Constitution). Therefore, in a scenario where
the State is coming out with welfare schemes, which strive at
giving dignified life in harmony with human dignity and in the
process some aspect of autonomy is sacrificed, the balancing of
the two becomes an important task which is to be achieved by the
158“Overlapping consensus” is a term coined by John Rawls that identifies basic ideas of justice
that can be shared by supporters of different religious, political, and moral comprehensive
doctrines.Writ Petition (Civil) No. 494 of 2012 connected matters Page 539 of 567
Courts. For, there cannot be undue intrusion into the autonomy
on the pretext of conferment of economic benefits.
(w) In this way, the concept of human dignity has been widened
to deal with the issues at hand. As far as doctrine of
proportionality is concerned, after discussing the approaches that
are adopted by the German Supreme Court and the Canadian
Supreme Court, which are somewhat different from each other,
this Court has applied the tests as laid down in Modern Dental
College Research Centre, which are approved in K.S.
Puttaswamy as well. However, at the same time, a modification
is done by focusing on the parameters set down of Bilchitz which
are aimed at achieving a more ideal approach.
447) After stating the aforesaid manner in which different issues that
arose are specified and discussed, these questions and
conclusions thereupon are summarised below:
(1) Whether the Aadhaar Project creates or has tendency to
create surveillance state and is, thus, unconstitutional on this
ground?Incidental Issues:
(a) What is the magnitude of protection that need to be
accorded to collection, storage and usage of
biometric data?(b) Whether the Aadhaar Act and Rules provide such
protection, including in respect of data minimisation,
purpose limitation, time period for data retention andWrit Petition (Civil) No. 494 of 2012 connected matters Page 540 of 567
data protection and security?Answer:
(a) The architecture of Aadhaar as well as the provisions of the
Aadhaar Act do not tend to create a surveillance state. This is
ensured by the manner in which the Aadhaar project operates.
(b) We have recorded in detail the powerpoint presentation that
was given by Dr. Ajay Bhushan Pandey, CEO of the Authority,
which brings out the following salient features:
(i) During the enrolment process, minimal biometric data in the
form of iris and fingerprints is collected. The Authority does not
collect purpose, location or details of transaction. Thus, it is
purpose blind. The information collected, as aforesaid, remains
in silos. Merging of silos is prohibited. The requesting agency is
provided answer only in ‘Yes’ or ‘No’ about the authentication of
the person concerned. The authentication process is not
exposed to the Internet world. Security measures, as per the
provisions of Section 29(3) read with Section 38(g) as well as
Regulation 17(1)(d) of the Authentication Regulations, are strictly
followed and adhered to.
(ii) There are sufficient authentication security measures taken
as well, as demonstrated in Slides 14, 28 and 29 of the
presentation.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 541 of 567
(iii) The Authority has sufficient defence mechanism, as
explained in Slide 30. It has even taken appropriate protection
measures as demonstrated in Slide 31.
(iv) There is an oversight by Technology and Architecture
Review Board (TARB) and Security Review Committee.
(v) During authentication no information about the nature of
transaction etc. is obtained.
(vi) The Authority has mandated use of Registered Devices
(RD) for all authentication requests. With these, biometric data is
signed within the device/RD service using the provider key to
ensure it is indeed captured live. The device provider RD service
encrypts the PID block before returning to the host application.
This RD service encapsulates the biometric capture, signing and
encryption of biometrics all within it. Therefore, introduction of
RD in Aadhaar authentication system rules out any possibility of
use of stored biometric and replay of biometrics captured from
other source. Requesting entities are not legally allowed to store
biometrics captured for Aadhaar authentication under Regulation
17(1)(a) of the Authentication Regulations.
(vii) The Authority gets the AUA code, ASA code, unique device
code, registered device code used for authentication. It does not
get any information related to the IP address or the GPS location
Writ Petition (Civil) No. 494 of 2012 connected matters Page 542 of 567
from where authentication is performed as these parameters arenot part of authentication (v2.0) and e-KYC (v2.1) API. The
Authority would only know from which device the authentication
has happened, through which AUA/ASA etc. It does not receive
any information about at what location the authentication device
is deployed, its IP address and its operator and the purpose of
authentication. Further, the authority or any entity under its
control is statutorily barred from collecting, keeping or maintaining
any information about the purpose of authentication under
Section 32(3) of the Aadhaar Act.
(c) After going through the Aadhaar structure, as demonstrated
by the respondents in the powerpoint presentation from the
provisions of the Aadhaar Act and the machinery which the
Authority has created for data protection, we are of the view that it
is very difficult to create profile of a person simply on the basis of
biometric and demographic information stored in CIDR. Insofar as
authentication is concerned, the respondents rightly pointed out
that there are sufficient safeguard mechanisms. To recapitulate, it
was specifically submitted that there was security technologies in
place (slide 28 of Dr. Pandey’s presentation), 24/7 security
monitoring, data leak prevention, vulnerability management
programme and independent audits (slide 29) as well as the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 543 of 567
Authority’s defence mechanism (slide 30). It was further pointedout that the Authority has taken appropriate pro-active protection
measures, which included disaster recovery plan, data backup
and availability and media response plan (slide 31). The
respondents also pointed out that all security principles are
followed inasmuch as: (a) there is PKI-2048 encryption from the
time of capture, meaning thereby, as soon as data is given at the
time of enrolment, there is an end to end encryption thereof and it
is transmitted to the Authority in encrypted form. The said
encryption is almost foolproof and it is virtually impossible to
decipher the same; (b) adoption of best-in-class security
standards and practices; and (c) strong audit and traceability as
well as fraud detection. Above all, there is an oversight of
Technology and Architecture Review Board (TARB) and Security
Review Committee. This Board and Committee consists of very
high profiled officers. Therefore, the Act has endeavoured to
provide safeguards.
(d) Insofar as use and protection of data is concerned, having
regard to the principles enshrined in various cases, Indian and
foreign, the matter is examined from the stand point of data
minimisation, purpose limitation, time period for data retention,
data protection and security (qua CIDR, requisite entities,
Writ Petition (Civil) No. 494 of 2012 connected matters Page 544 of 567
enrolment agencies and Registrars, authentication serviceagency, hacking, biometric solution providers, substantive
procedural or judicial safeguards). After discussing the aforesaid
aspect with reference to certain provisions of the Aadhaar Act, we
are of the view that apprehensions of the petitioners stand
assuaged with the striking down or reading down or clarification
of some of the provisions, namely:
(i) Authentication records are not to be kept beyond a period
of six months, as stipulated in Regulation 27(1) of the
Authentication Regulations. This provision which permits
records to be archived for a period of five years is held to
be bad in law.
(ii) Metabase relating to transaction, as provided in Regulation
26 of the aforesaid Regulations in the present form, is held
to be impermissible, which needs suitable amendment.
(iii) Section 33(1) of the Aadhaar Act is read down by clarifying
that an individual, whose information is sought to be
released, shall be afforded an opportunity of hearing.
(iv) Insofar as Section 33(2) of the Act in the present form is
concerned, the same is struck down.
(v) That portion of Section 57 of the Aadhaar Act which
enables body corporate and individual to seek
Writ Petition (Civil) No. 494 of 2012 connected matters Page 545 of 567
authentication is held to be unconstitutional.(vi) We have also impressed upon the respondents, to bring
out a robust data protection regime in the form of an
enactment on the basis of Justice B.N. Srikrishna (Retd.)
Committee Report with necessary modifications thereto as
may be deemed appropriate.
(2) Whether the Aadhaar Act violates right to privacy and is
unconstitutional on this ground?Answer:
(a) After detailed discussion, it is held that all matters pertaining
to an individual do not qualify as being an inherent part of right to
privacy. Only those matters over which there would be a
reasonable expectation of privacy are protected by Article 21.
This can be discerned from the reading of Paras 297 to 307 of the
judgment.
(b) The Court is also of the opinion that the triple test laid down
in order to adjudge the reasonableness of the invasion to privacy
has been made. The Aadhaar scheme is backed by the statute,
i.e. the Aadhaar Act. It also serves legitimate State aim, which
can be discerned from the Introduction to the Act as well as the
Statement of Objects and Reasons which reflect that the aim in
passing the Act was to ensure that social benefit schemes reach
Writ Petition (Civil) No. 494 of 2012 connected matters Page 546 of 567
the deserving community. The Court noted that the failure toestablish identity of an individual has proved to be a major
hindrance for successful implementation of those programmes as
it was becoming difficult to ensure that subsidies, benefits and
services reach the unintended beneficiaries in the absence of a
credible system to authenticate identity of beneficiaries. The
Statement of Objects and Reasons also discloses that over a
period of time, the use of Aadhaar number has been increased
manifold and, therefore, it is also necessary to take measures
relating to ensuring security of the information provided by the
individuals while enrolling for Aadhaar card.
(c) It may be highlighted that the petitioners are making their
claim on the basis of dignity as a facet of right to privacy. On the
other hand, Section 7 of the Aadhaar Act is aimed at offering
subsidies, benefits or services to the marginalised section of the
society for whom such welfare schemes have been formulated
from time to time. That also becomes an aspect of social justice,
which is the obligation of the State stipulated in Para IV of the
Constitution. The rationale behind Section 7 lies in ensuring
targeted delivery of services, benefits and subsidies which are
funded from the Consolidated Fund of India. In discharge of its
solemn Constitutional obligation to enliven the Fundamental
Writ Petition (Civil) No. 494 of 2012 connected matters Page 547 of 567
Rights of life and personal liberty (Article 21) to ensure Justice,Social, Political and Economic and to eliminate inequality (Article
14) with a view to ameliorate the lot of the poor and the Dalits, the
Central Government has launched several welfare schemes.
Some such schemes are PDS, scholarships, mid day meals, LPG
subsidies, etc. These schemes involve 3% percentage of the
GDP and involve a huge amount of public money. Right to
receive these benefits, from the point of view of those who
deserve the same, has now attained the status of fundamental
right based on the same concept of human dignity, which the
petitioners seek to bank upon. The Constitution does not exist for
a few or minority of the people of India, but “We the people”. The
goals set out in the Preamble of the Constitution do not
contemplate statism and do not seek to preserve justice, liberty,
equality an fraternity for those who have the means and
opportunity to ensure the exercise of inalienable rights for
themselves. These goals are predominantly or at least equally
geared to “secure to all its citizens”, especially, to the
downtrodden, poor and exploited, justice, liberty, equality and “to
promote” fraternity assuring dignity. Interestingly, the State has
come forward in recognising the rights of deprived section of the
society to receive such benefits on the premise that it is their
Writ Petition (Civil) No. 494 of 2012 connected matters Page 548 of 567
fundamental right to claim such benefits. It is acknowledged bythe respondents that there is a paradigm shift in addressing the
problem of security and eradicating extreme poverty and hunger.
The shift is from the welfare approach to a right based approach.
As a consequence, right of everyone to adequate food no more
remains based on Directive Principles of State Policy (Art 47),
though the said principles remain a source of inspiration. This
entitlement has turned into a Constitutional fundamental right.
This Constitutional obligation is reinforced by obligations under
International Convention.
(d) Even the petitioners did not seriously question the purpose
and bona fides of the Legislature enacting the law.
(e) The Court also finds that the Aadhaar Act meets the test of
proportionality as the following components of proportionality
stand satisfied:
(i) A measure restricting a right must have a legitimate goal
(legitimate goal stage).(ii) It must be a suitable means of furthering this goal
(suitability or rationale connection stage).(iii) There must not be any less restrictive but equally effective
alternative (necessity stage).(iv) The measure must not have a disproportionate impact on
the right holder (balancing stage).(f) In the process, the Court has taken note of various
Writ Petition (Civil) No. 494 of 2012 connected matters Page 549 of 567
judgments pronounced by this Court pertaining to right to food,issuance of BPL Cards, LPG connections and LPG cylinders at
minimal cost, old age and other kind of pensions to deserving
persons, scholarships and implementation of MGNREGA
scheme.
(g) The purpose behind these orders was to ensure that the
deserving beneficiaries of the scheme are correctly identified and
are able to receive the benefits under the said scheme, which is
their entitlement. The orders also aimed at ensuring ‘good
governance’ by bringing accountability and transparency in the
distribution system with the pious aim in mind, namely, benefits
actually reached those who are rural, poor and starving.
(h) All this satisfies the necessity stage test, particularly in the
absence of any less restrictive but equally effective alternative.
(i) Insofar as balancing is concerned, the matter is examined
at two levels:
(i) Whether, ‘legitimate state interest’ ensures ‘reasonable
tailoring’? There is a minimal intrusion into the privacy and the
law is narrowly framed to achieve the objective. Here the Act
is to be tested on the ground that whether it is found on a
balancing test that the social or public interest and the
reasonableness of the restrictions outweigh the particular
Writ Petition (Civil) No. 494 of 2012 connected matters Page 550 of 567
aspect of privacy, as claimed by the petitioners. This is thetest we have applied in the instant case.
(ii) There needs to be balancing of two competing
fundamental rights, right to privacy on the one hand and right
to food, shelter and employment on the other hand.
Axiomatically both the rights are founded on human dignity. At
the same time, in the given context, two facets are in conflict
with each other. The question here would be, when a person
seeks to get the benefits of welfare schemes to which she is
entitled to as a part of right to live life with dignity, whether her
sacrifice to the right to privacy, is so invasive that it creates
imbalance?
(j) In the process, sanctity of privacy in its functional
relationship with dignity is kept in mind where it says that
legitimate expectation of privacy may vary from intimate zone to
the private zone and from the private to public arena.
Reasonable expectation of privacy is also taken into
consideration. The Court finds that as the information collected at
the time of enrolment as well as authentication is minimal,
balancing at the first level is met. Insofar as second level,
namely, balancing of two competing fundamental rights is
concerned, namely, dignity in the form of autonomy (informational
Writ Petition (Civil) No. 494 of 2012 connected matters Page 551 of 567
privacy) and dignity in the form of assuring better living standardsof the same individual, the Court has arrived at the conclusion
that balancing at the second level is also met. The detailed
discussion in this behalf amply demonstrates that enrolment in
Aadhaar of the unprivileged and marginalised section of the
society, in order to avail the fruits of welfare schemes of the
Government, actually amounts to empowering these persons. On
the one hand, it gives such individuals their unique identity and,
on the other hand, it also enables such individuals to avail the
fruits of welfare schemes of the Government which are floated as
socio-economic welfare measures to uplift such classes. In that
sense, the scheme ensures dignity to such individuals. This facet
of dignity cannot be lost sight of and needs to be acknowledged.
We are, by no means, accepting that when dignity in the form of
economic welfare is given, the State is entitled to rob that person
of his liberty. That can never be allowed. We are concerned with
the balancing of the two facets of dignity. Here we find that the
inroads into the privacy rights where these individuals are made
to part with their biometric information, is minimal. It is coupled
with the fact that there is no data collection on the movements of
such individuals, when they avail benefits under Section 7 of the
Act thereby ruling out the possibility of creating their profiles. In
Writ Petition (Civil) No. 494 of 2012 connected matters Page 552 of 567
fact, this technology becomes a vital tool of ensuring goodgovernance in a social welfare state. We, therefore, are of the
opinion that the Aadhaar Act meets the test of balancing as well.
(k) Insofar as the argument based on probabilistic system of
Aadhaar, leading to ‘exclusion’ is concerned, the Authority has
claimed that biometric accuracy is 99.76% and the petitioners
have also proceeded on that basis. In this scenario, if the
Aadhaar project is shelved, 99.76% beneficiaries are going to
suffer. Would it not lead to their exclusion? It will amount to
throwing the baby out of hot water along with the water. In the
name of 0.232% failure (which can in any case be remedied)
should be revert to the pre-Aadhaar stage with a system of
leakages, pilferages and corruption in the implementation of
welfare schemes meant for marginalised section of the society,
the full fruits thereof were not reaching to such people?
(l) The entire aim behind launching this programme is the
‘inclusion’ of the deserving persons who need to get such
benefits. When it is serving much larger purpose by reaching
hundreds of millions of deserving persons, it cannot be crucified
on the unproven plea of exclusion of some. It is clarified that the
Court is not trivialising the problem of exclusion if it is there.
However, what we are emphasising is that remedy is to plug the
Writ Petition (Civil) No. 494 of 2012 connected matters Page 553 of 567
loopholes rather than axe a project, aimed for the welfare of largesection of the society. Obviously, in order to address the failures
of authentication, the remedy is to adopt alternate methods for
identifying such persons, after finding the causes of failure in their
cases. We have chosen this path which leads to better
equilibrium and have given necessary directions also in this
behalf, viz:
(i) We have taken on record the statement of the learned
Attorney General that no deserving person would be denied
the benefit of a scheme on the failure of authentication.
(ii) We are also conscious of the situation where the
formation of fingerprints may undergo change for various
reasons. It may happen in the case of a child after she grows
up; it may happen in the case of an individual who gets old; it
may also happen because of damage to the fingers as a result
of accident or some disease etc. or because of suffering of
some kind of disability for whatever reason. Even iris test can
fail due to certain reasons including blindness of a person.
We again emphasise that no person rightfully entitled to the
benefits shall be denied the same on such grounds. It would
be appropriate if a suitable provision be made in the
concerned regulations for establishing an identity by alternate
Writ Petition (Civil) No. 494 of 2012 connected matters Page 554 of 567
means, in such situations.(m) As far as subsidies, services and benefits are concerned,
their scope is not to be unduly expanded thereby widening the net
of Aadhaar, where it is not permitted otherwise. In this respect, it
is held as under:
(i) ‘Benefits’ and ‘services’ as mentioned in Section 7
should be those which have the colour of some kind of
subsidies etc., namely, welfare schemes of the Government
whereby Government is doling out such benefits which are
targeted at a particular deprived class.
(ii) It would cover only those ‘benefits’ etc. the
expenditure thereof has to be drawn from the Consolidated
Fund of India.
(iii) On that basis, CBSE, NEET, JEE, UGC etc. cannot
make the requirement of Aadhaar mandatory as they are
outside the purview of Section 7 and are not backed by any
law.
(3) Whether children can be brought within the sweep of
Sections 7 and 8 of the Aadhaar Act?Answer:
(a) For the enrolment of children under the Aadhaar Act, it
would be essential to have the consent of their parents/guardian.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 555 of 567
(b) On attaining the age of majority, such children who are
enrolled under Aadhaar with the consent of their parents, shall be
given the option to exit from the Aadhaar project if they so choose
in case they do not intend to avail the benefits of the scheme.
(c) Insofar as the school admission of children is concerned,
requirement of Aadhaar would not be compulsory as it is neither a
service nor subsidy. Further, having regard to the fact that a child
between the age of 6 to 14 years has the fundamental right to
education under Article 21A of the Constitution, school admission
cannot be treated as ‘benefit’ as well.
(d) Benefits to children between 6 to 14 years under Sarv
Shiksha Abhiyan, likewise, shall not require mandatory Aadhaar
enrolment.
(e) For availing the benefits of other welfare schemes which are
covered by Section 7 of the Aadhaar Act, though enrolment
number can be insisted, it would be subject to the consent of the
parents, as mentioned in (a) above.
(f) We also clarify that no child shall be denied benefit of any of
these schemes if, for some reasons, she is not able to produce
the Aadhaar number and the benefit shall be given by verifying
the identity on the basis of any other documents. This we say
having regard to the statement which was made by Mr. K.K.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 556 of 567
Venugopal, learned Attorney General for India, at the Bar.(4) Whether the following provisions of the Aadhaar Act and
Regulations suffer from the vice of unconstitutionality:(i) Sections 2(c) and 2(d) read with Section 32
(ii) Section 2(h) read with Section 10 of CIDR
(iii) Section 2(l) read with Regulation 23
(iv) Section 2(v)
(v) Section 3
(vi) Section 5
(vii) Section 6
(viii) Section 8
(ix) Section 9
(x) Sections 11 to 23
(xi) Sections 23 and 54
(xii) Section 23(2)(g) read with Chapter VI VII –
Regulations 27 to 32(xiii) Section 29
(xiv) Section 33
(xv) Section 47
(xvi) Section 48
(xvii) Section 57
(xviii) Section 59Answer:
(a) Section 2(d) which pertains to authentication records, such
records would not include metadata as mentioned in Regulation
26(c) of the Aadhaar (Authentication) Regulations, 2016.
Therefore, this provision in the present form is struck down.
Liberty, however, is given to reframe the regulation, keeping in
view the parameters stated by the Court.
(b) Insofar as Section 2(b) is concerned, which defines
‘resident’, the apprehension expressed by the petitioners was that
Writ Petition (Civil) No. 494 of 2012 connected matters Page 557 of 567
it should not lead to giving Aadhaar card to illegal immigrants.We direct the respondent to take suitable measures to ensure
that illegal immigrants are not able to take such benefits.
(c) Retention of data beyond the period of six months is
impermissible. Therefore, Regulation 27 of Aadhaar
(Authentication) Regulations, 2016 which provides archiving a
data for a period of five years is struck down.
(d) Section 29 in fact imposes a restriction on sharing
information and is, therefore, valid as it protects the interests of
Aadhaar number holders. However, apprehension of the
petitioners is that this provision entitles Government to share the
information ‘for the purposes of as may be specified by
regulations’. The Aadhaar (Sharing of Information) Regulations,
2016, as of now, do not contain any such provision. If a provision
is made in the regulations which impinges upon the privacy rights
of the Aadhaar card holders that can always be challenged.
(e) Section 33(1) of the Act prohibits disclosure of information,
including identity information or authentication records, except
when it is by an order of a court not inferior to that of a District
Judge. We have held that this provision is to be read down with
the clarification that an individual, whose information is sought to
be released, shall be afforded an opportunity of hearing. If such
Writ Petition (Civil) No. 494 of 2012 connected matters Page 558 of 567
an order is passed, in that eventuality, he shall also have right tochallenge such an order passed by approaching the higher court.
During the hearing before the concerned court, the said individual
can always object to the disclosure of information on accepted
grounds in law, including Article 20(3) of the Constitution or the
privacy rights etc.
(f) Insofar as Section 33(2) is concerned, it is held that
disclosure of information in the interest of national security cannot
be faulted with. However, for determination of such an
eventuality, an officer higher than the rank of a Joint Secretary
should be given such a power. Further, in order to avoid any
possible misuse, a Judicial Officer (preferably a sitting High Court
Judge) should also be associated with. We may point out that
such provisions of application of judicial mind for arriving at the
conclusion that disclosure of information is in the interest of
national security, are prevalent in some jurisdictions. In view
thereof, Section 33(2) of the Act in the present form is struck
down with liberty to enact a suitable provision on the lines
suggested above.
(g) Insofar as Section 47 of the Act which provides for the
cognizance of offence only on a complaint made by the Authority
or any officer or person authorised by it is concerned, it needs a
Writ Petition (Civil) No. 494 of 2012 connected matters Page 559 of 567
suitable amendment to include the provision for filing of such acomplaint by an individual/victim as well whose right is violated.
(h) Insofar as Section 57 in the present form is concerned, it is
susceptible to misuse inasmuch as: (a) It can be used for
establishing the identity of an individual ‘for any purpose’. We
read down this provision to mean that such a purpose has to be
backed by law. Further, whenever any such “law” is made, it
would be subject to judicial scrutiny. (b) Such purpose is not
limited pursuant to any law alone but can be done pursuant to
‘any contract to this effect’ as well. This is clearly impermissible
as a contractual provision is not backed by a law and, therefore,
first requirement of proportionality test is not met. (c) Apart from
authorising the State, even ‘any body corporate or person’ is
authorised to avail authentication services which can be on the
basis of purported agreement between an individual and such
body corporate or person. Even if we presume that legislature
did not intend so, the impact of the aforesaid features would be to
enable commercial exploitation of an individual biometric and
demographic information by the private entities. Thus, this part of
the provision which enables body corporate and individuals also
to seek authentication, that too on the basis of a contract between
the individual and such body corporate or person, would impinge
Writ Petition (Civil) No. 494 of 2012 connected matters Page 560 of 567
upon the right to privacy of such individuals. This part of thesection, thus, is declared unconstitutional.
(i) Other provisions of Aadhaar Act are held to be valid,
including Section 59 of the Act which, according to us, saves the
pre-enactment period of Aadhaar project, i.e. from 2009-2016.
(5) Whether the Aadhaar Act defies the concept of Limited
Government, Good Governance and Constitutional Trust?Answer:
Aadhaar Act meets the concept of Limited Government,
Good Governance and Constitutional Trust.
(6) Whether the Aadhaar Act could be passed as ‘Money Bill’
within the meaning of Article 110 of the Constitution?Answer:
(a) We do recognise the importance of Rajya Sabha (Upper
House) in a bicameral system of the Parliament. The significance
and relevance of the Upper House has been succinctly
exemplified by this Court in Kuldip Nayar’s case. The Rajya
Sabha, therefore, becomes an important institution signifying
constitutional fedaralism. It is precisely for this reason that to
enact any statute, the Bill has to be passed by both the Houses,
namely, Lok Sabha as well as Rajya Sabha. It is the
constitutional mandate. The only exception to the aforesaid
Writ Petition (Civil) No. 494 of 2012 connected matters Page 561 of 567
Parliamentary norm is Article 110 of the Constitution of India.Having regard to this overall scheme of bicameralism enshrined
in our Constitution, strict interpretation has to be accorded to
Article 110. Keeping in view these principles, we have
considered the arguments advanced by both the sides.
(b) The petitioners accept that Section 7 of the Aadhaar Act has
the elements of ‘Money Bill’. The attack is on the premise that
some other provisions, namely, clauses 23(2)(h), 54(2)(m) and 57
of the Bill (which corresponds to Sections 23(2)(h), 54(2)(m) and
57 of the Aadhaar Act) do not fall under any of the clauses of
Article 110 of the Constitution and, therefore, Bill was not limited
to only those subjects mentioned in Article 110. Insofar as
Section 7 is concerned, it makes receipt of subsidy, benefit or
service subject to establishing identity by the process of
authentication under Aadhaar or furnish proof of Aadhaar etc. It
is also very clearly declared in this provision that the expenditure
incurred in respect of such a subsidy, benefit or service would be
from the Consolidated Fund of India. It is also accepted by the
petitioners that Section 7 is the main provision of the Act. In fact,
introduction to the Act as well as Statement of Objects and
Reasons very categorically record that the main purpose of
Aadhaar Act is to ensure that such subsidies, benefits and
Writ Petition (Civil) No. 494 of 2012 connected matters Page 562 of 567
services reach those categories of persons, for whom they areactually meant.
(c) As all these three kinds of welfare measures are sought to
be extended to the marginalised section of society, a collective
reading thereof would show that the purpose is to expand the
coverage of all kinds of aid, support, grant, advantage, relief
provisions, facility, utility or assistance which may be extended
with the support of the Consolidated Fund of India with the
objective of targeted delivery. It is also clear that various
schemes which can be contemplated by the aforesaid provisions,
relate to vulnerable and weaker section of the society. Whether
the social justice scheme would involve a subsidy or a benefit or
a service is merely a matter of the nature and extent of
assistance and would depend upon the economic capacity of the
State. Even where the state subsidizes in part, whether in cash
or kind, the objective of emancipation of the poor remains the
goal.
(d) The respondents are right in their submission that the
expression subsidy, benefit or service ought to be understood in
the context of targeted delivery to poorer and weaker sections of
society. Its connotation ought not to be determined in the
abstract. For as an abstraction one can visualize a subsidy being
Writ Petition (Civil) No. 494 of 2012 connected matters Page 563 of 567
extended by Parliament to the King; by Government to theCorporations or Banks; etc. The nature of subsidy or benefit
would not be the same when extended to the poor and
downtrodden for producing those conditions without which they
cannot live a life with dignity. That is the main function behind
the Aadhaar Act and for this purpose, enrolment for Aadhaar
number is prescribed in Chapter II which covers Sections 3 to
6. Residents are, thus, held entitled to obtain Aadhaar number.
We may record here that such an enrolment is of voluntary
nature. However, it becomes compulsory for those who seeks to
receive any subsidy, benefit or service under the welfare scheme
of the Government expenditure whereof is to be met from the
Consolidated Fund of India. It follows that authentication under
Section 7 would be required as a condition for receipt of a
subsidy, benefit or service only when such a subsidy, benefit or
service is taken care of by Consolidated Fund of India.
Therefore, Section 7 is the core provision of the Aadhaar Act and
this provision satisfies the conditions of Article 110 of the
Constitution. Upto this stage, there is no quarrel between the
parties.
(e) On examining of the other provisions pointed out by the
petitioners in an attempt to take it out of the purview of Money
Writ Petition (Civil) No. 494 of 2012 connected matters Page 564 of 567
Bill, we are of the view that those provisions are incidental innature which have been made in the proper working of the Act.
In any case, a part of Section 57 has already been declared
unconstitutional. We, thus, hold that the Aadhaar Act is validly
passed as a ‘Money Bill’.
(7) Whether Section 139AA of the Income Tax Act, 1961 is
violative of right to privacy and is, therefore, unconstitutional?Answer:
Validity of this provision was upheld in the case of Binoy
Viswam by repelling the contentions based on Articles 14 and 19
of the Constitution. The question of privacy which, at that time,
was traced to Article 21, was left open. The matter is reexamined
on the touchstone of principles laid down in K.S. Puttaswamy.
The matter has also been examined keeping in view that manifest
arbitrariness is also a ground of challenge to the legislative
enactment. Even after judging the matter in the context of
permissible limits for invasion of privacy, namely: (i) the existence
of a law; (ii) a ‘legitimate State interest’; and (iii) such law should
pass the ‘test of proportionality’, we come to the conclusion that
all these tests are satisfied. In fact, there is specific discussion
on these aspects in Binoy Viswam’s case as well.
(8) Whether Rule 9 of the Prevention of Money Laundering
(Maintenance of Records) Rules, 2005 and the notifications
Writ Petition (Civil) No. 494 of 2012 connected matters Page 565 of 567
issued thereunder which mandates linking of Aadhaar with bank
accounts is unconstitutional?Answer:
(a) We hold that the provision in the present form does not
meet the test of proportionality and, therefore, violates the right to
privacy of a person which extends to banking details.
(b) This linking is made compulsory not only for opening a new
bank account but even for existing bank accounts with a
stipulation that if the same is not done then the account would be
deactivated, with the result that the holder of the account would
not be entitled to operate the bank account till the time seeding of
the bank account with Aadhaar is done. This amounts to
depriving a person of his property. We find that this move of
mandatory linking of Aadhaar with bank account does not satisfy
the test of proportionality. To recapitulate, the test of
proportionality requires that a limitation of the fundamental rights
must satisfy the following to be proportionate: (i) it is designated
for a proper purpose; (ii) measures are undertaken to effectuate
the limitation are rationally connected to the fulfilment of the
purpose; (iii) there are no alternative less invasive measures; and
(iv) there is a proper relation between the importance of achieving
the aim and the importance of limiting the right.
(c) The Rules are held to be disproportionate for the reasons
Writ Petition (Civil) No. 494 of 2012 connected matters Page 566 of 567
stated in the main body of this Judgment.(9) Whether Circular dated March 23, 2017 issued by the
Department of Telecommunications mandating linking of mobile
number with Aadhaar is illegal and unconstitutional?
Answer:Circular dated March 23, 2017 mandating linking of mobile
number with Aadhaar is held to be illegal and unconstitutional as
it is not backed by any law and is hereby quashed.
(10) Whether certain actions of the respondents are in
contravention of the interim orders passed by the Court, if so, the
effect thereof?Answer:
This question is answered in the negative.
448) In view of the aforesaid discussion and observations, the writ
petitions, transferred cases, special leave petition, contempt
petitions and all the pending applications stand disposed of.
.............................................CJI.
(DIPAK MISRA)
.............................................J.
(A.K. SIKRI)
.............................................J.
(A.M. KHANWILKAR)
NEW DELHI;SEPTEMBER 26, 2018.
Writ Petition (Civil) No. 494 of 2012 connected matters Page 567 of 567
REPORTABLEIN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTIONWRIT PETITION (CIVIL) NO 494 OF 2012
JUSTICE K S PUTTASWAMY (RETD) ANR ...PETITIONERS
Versus
UNION OF INDIA ORS ...RESPONDENTS
WITH
T C (C) NO 151 OF 2013
T C (C) NO 152 OF 2013
W P (C) NO 833 OF 2013
W P (C) NO 829 OF 2013
T P (C) NO 1797 OF 2013
W P (C) NO 932 OF 2013
1
T P (C) NO 1796 OF 2013CONMT. PET. (C) NO 144 OF 2014
T P (C) NO 313 OF 2014
T P (C) NO 312 OF 2014
SLP (CRL) NO 2524 OF 2014
W P (C) NO 37 OF 2015
W P (C) NO 220 OF 2015
CONMT. PET. (C) NO 674 OF 2015 in W P (C) NO 829 OF 2013
T P (C) NO 921 OF 2015
CONMT. PET. (C) NO 470 OF 2015
W P (C) NO 231 OF 2016
CONMT. PET. (C) NO 444 OF 2016
CONMT. PET. (C) NO 608 OF 2016
W P (C) NO 797 OF 2016
CONMT. PET. (C) NO 844 OF 2017
2
W P (C) NO 342 OF 2017W P (C) NO 372 OF 2017
W P (C) NO 841 OF 2017
W P (C) NO 1058 OF 2017
W P (C) NO 966 OF 2017
W P (C) NO 1014 OF 2017
W P (C) NO 1002 OF 2017
W P (C) NO 1056 OF 2017
AND
WITH
CONMT. PET. (C) NO 34 OF 2018 in W P (C) NO 1014 OF 2017
3
JUDGMENTINDEX
A Introduction: technology, governance and freedom
B The Puttaswamy1 principles
B.I Origins: privacy as a natural right
B.2 Privacy as a constitutionally protected right : liberty and dignity
B.3 Contours of privacy
B.4 Informational privacy
B.5 Restricting the right to privacy
B.6 Legitimate state interestsC Submissions
C.I Petitioners’ submissions
C.2 Respondents’ submissionsD Architecture of Aadhaar: analysis of the legal framework
E Passage of Aadhaar Act as a Money Bill
E.I Judicial Review of the Speaker’s Decision
E.2 Aadhaar Act as a Money BillF Biometrics, Privacy and Aadhaar
F.I Increased use of biometric technology
F.2 Consent in the collection of biometric data
F.3 Position before the Aadhaar legislation1 (2017) 10 SCC 1
4
F.4 Privacy Concerns in the Aadhaar Act1. Consent during enrolment and authentication the right to access
information under the Aadhaar Act2. Extent of information disclosed during authentication sharing of core
biometric information3. Expansive scope of biometric information
4. Other concerns regarding the Aadhaar Act: Misconceptions regarding the
efficacy of biometric information5. No access to biometric records in database
6. Biometric locking
7. Key takeaways
G Legitimate state aim
G.I Directive Principles
G.2 Development and freedom
G.3 Identity and IdentificationH Proportionality
H.I Harmonising conflicting rights
H.2 Proportionality standard in Indian jurisprudence
H.3 Comparative jurisprudence
H.4 Aadhaar: The proportionality analysis
H.5 Dignity and financial exclusion
H.6 Constitutional validity of Section 139AA of the Income Tax Act 1961
H.7 Linking of SIM cards and Aadhaar numbersI Money laundering rules
J Savings in Section 59
K Rule of law and violation of interim orders
L Conclusion
5
PART ADr Dhananjaya Y Chandrachud, J
A Introduction: technology, governance and freedom
1 Technology and biometrics are recent entrants to litigation. Individually,
each presents specific claims: of technology as the great enabler; and of
biometrics as the unique identifier. As recombinant elements, they create as it
were, new genetic material. Combined together, they present unforeseen
challenges for governance in a digital age. Part of the reason for these
challenges is that our law evolved in a radically different age and time. The
law evolved instruments of governance in incremental stages. They were
suited to the social, political and economic context of the time. The forms of
expression which the law codified were developed when paper was
ubiquitous. The limits of paper allowed for a certain freedom: the freedom of
individuality and the liberty of being obscure. Governance with paper could
lapse into governance on paper. Technology has become a universal
language which straddles culture and language. It confronts institutions of
governance with new problems. Many of them have no ready answers.
2 Technology questions the assumptions which underlie our processes of
reasoning. It reshapes the dialogue between citizens and the state. Above all,
it tests the limits of the doctrines which democracies have evolved as a shield
which preserves the sanctity of the individual.
6
PART A3 In understanding the interface between governance, technology and
freedom, this case will set the course for the future. Our decision must
address the dialogue between technology and power. The decision will
analyse the extent to which technology has reconfigured the role of the state
and has the potential to reset the lines which mark off no-fly zones: areas
where the sanctity of the individual is inviolable. Our path will define our
commitment to limited government. Technology confronts the future of
freedom itself.
4 Granville Austin, the eminent scholar of the Indian Constitution had
prescient comments on the philosophy of the Indian Constitution. He found it
in three strands:
“The Constitution…may be summarized as having three
strands: protecting and enhancing national unity and integrity;
establishing the institutions and spirit of democracy; and
fostering a social revolution to better the mass of Indians...the
three strands are mutually dependent and inextricably
intertwined. Social revolution could not be sought or gained at
the expense of democracy. Nor could India be truly
democratic unless the social revolution had to establish a just
society. Without national unity, democracy would be
endangered and there would be little progress toward social
and economic reform. And without democracy and reform, the
nation would not hold together. With these three strands, the
framers had spun a seamless web. Undue strain on, or
slackness in any one strand would distort the web and risk its
destruction and, with it, the destruction of the nation.Maintaining harmony between the strands predictably would
present those who later work the Constitution with great
difficulties…”22 Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Oxford University
Press (2003) at page 67
PART AThese three strands are much like the polycentric web of which Lon Fuller has
spoken.3 A pull on one strand shakes the balance between the others. The
equilibrium between them preserves the equilibrium of the Constitution.
5 This Court has been tasked with adjudicating on the constitutional
validity of the Aadhaar project. The difficulties that Granville Austin had
predicted would arise in harmonising the strands of the “seamless web” are
manifested in the present case. This case speaks to the need to harmonise
the commitment to social welfare while safeguarding the fundamental values
of a liberal constitutional democracy.
6 To usher in a social revolution, India espoused the framework of a
welfare state. The Directive Principles are its allies. The state is mandated to
promote the welfare of its citizens by securing and protecting as effectively as
possible a social order in which there is social, economic and political justice.
Government plays a vital role in the social and economic upliftment of the
nation’s citizenry by espousing equitable distribution of resources and creating
equal opportunities. These are ideals that are meant to guide and govern
State action. The State’s commitment to improve welfare is manifested
through the measures and programmes which it pursues.
3 Lon L. Fuller and Kenneth I. Winston, The Forms and Limits of Adjudication, Harvard Law Review, Vol. 92,
(1978), at pages 353-4098
PART A7 The Constitution of India incorporated a charter of human freedoms in
Part III and a vision of transformative governance in Part IV. Through its rights
jurisprudence, this Court has attempted to safeguard the rights in Part III and
to impart enforceability to at least some of the Part IV rights by reading them
into the former, as intrinsic to a constitutionally protected right to dignity. The
Directive Principles are a reminder of the positive duties which the state has to
its citizens. While social welfare is a foundational value, the Constitution is the
protector of fundamental human rights. In subserving both those ideals, it has
weaved a liberal political order where individual rights and freedoms are at the
heart of a democratic society. The Constitution seeks to fulfil its liberal values
by protecting equality, dignity, privacy, autonomy, expression and other
freedoms.
8 Two recent books have explored the complexities of human identity. In
“The Lies That Bind: Rethinking Identity”4, Kwame Anthony Appiah states that
a liberal constitutional democracy is not a fate but a project. He draws
inspiration from the Roman playwright Terence who observes: “I am human. I
think nothing human alien to me.” Francis Fukuyama, on the other hand has a
distinct nuance about identity. In “Identity: The Demand for Dignity and the
Politics of Enlightenment5, he writes about how nations can facilitate
“integrative national identities” based on liberal democratic values. Reviewing
the books, Anand Giridharadas noted that Fukuyama’s sense of identity is
4 Kwame Anthony Appiah, The Lies That Bind: Rethinking Identity, Liveright Publishing (2018).
5 Francis Fukuyama, Identity: The Demand for Dignity and the Politics of Enlightenment, Farrar, Straus and
Giroux (2018).9
PART A“large enough to be inclusive but small enough to give people a real sense of
agency over their society.”6. Appiah and Fukuyama present two variants – for
Appiah it has a cosmopolitan and global nature while it is more integrated with
a nation state, for Fukuyama, though firmly rooted in a liberal constitutional
order.
9 India has participated in and benefited from the reconfiguring of
technology by the global community. We live in an age of information and are
witness to a technological revolution that pervades almost every aspect of our
lives. Redundancies and obsolescence are as ubiquitous as technology itself.
Technology is a great enabler. Technology can be harnessed by the State in
furthering access to justice and fostering good governance.
10 In an age symbolised by an information revolution, society is witnessing
a shift to a knowledge economy7. In a knowledge economy, growth is
dependent on the ‘quantity, quality, and accessibility’8 of information. The
quest for digital India must nonetheless be cognisant of the digital divide.
Access confronts serious impediments. Large swathes of the population have
little or no access to the internet or to the resources required for access to
information. With the growth of the knowledge economy, our constitutional
jurisprudence has expanded privacy rights. A digital nation must not submerge
6 Anand Giridharadas, ‘What is Identity?’, The New York Times, 27 August, 2018.
7 Peter F Drucker, The Age of Discontinuity: Guidelines to Our Changing Society, Harper Row (1969).
Drucker’s book popularized the term ‘Knowledge Economy’.
8 ‘What is Knowledge Economy?’, IGI Global: Disseminator of Knowledge, available at:https://www.igi-global.com/dictionary/indigenous-knowledges-and-knowledge-codification-in-the-knowledge-
economy/1632710
PART Athe identities of a digitised citizen. While data is the new oil, it still eludes the
life of the average citizen. If access to welfare entitlements is tagged to unique
data sets, skewed access to informational resources should not lead to
perpetuating the pre-existing inequalities of access to public resources. An
identification project that involves the collection of the biometric and
demographic information of 1.3 billion people9, creating the largest biometric
identity project in the world, must be scrutinized carefully to assess its
compliance with human rights.
11 Empowered by the technology that accompanied the advent of the
information age, the Aadhaar project was envisioned and born. The project is
a centralised nation-wide identification system based on biometric technology.
It aims to be a game changer in the delivery of welfare benefits through the
use of technology. The project seeks to facilitate de-duplication, prevent
revenue leakages and ensure a more cost and time efficient procedure for
identification. Conceptualised on the use of biometrics and authentication, the
Aadhaar identity card was originally introduced as a matter of voluntary
choice. It was made a requirement for state subsidies and benefits for which,
expenses are incurred from the Consolidated Fund of India. It was later
expanded to become necessary to avail of a host of other services. The
project is multifaceted and expansive. Perhaps no similar national identity
program exists in the world. The Aadhaar project has multifarious aspects, all
9 Krishnadas Rajagopal, ‘Aadhaar in numbers: key figures from UIDAI CEO’s presentation to the Supreme
Court’, The Hindu, (March 22, 2018). Aadhaar enrollment as of March 2018 stood at over 1 billion.11
PART Aof which have been the subject of a detailed challenge by the Petitioners.
They have been met with an equally strong defence from the government,
which has argued that the programme is indispensable to curb corruption,
fraud and black money.
12 The Aadhaar project raises two crucial questions: First, are there
competing interests between human rights and ‘welfare furthering technology’
in democratic societies? Can technologies which are held out to bring
opportunities for growth, also violate fundamental human freedoms? Second,
if the answer to the first is in the affirmative, how should the balance be struck
between these competing interests?
13 Efficiency is a significant facet of institutional governance. But
efficiencies can compromise dignity. When efficiency becomes a universal
mantra to steam-roll fundamental freedoms, there is a danger of a society
crossing the line which divides democracy from authoritarian cultures. At the
heart of the grounds on which the Aadhaar project has been challenged, lies
the issue of power. Our Constitution is a transformative document in many
ways. One of them is in defining and limiting the State’s powers, while
expanding the ambit of individual rights and liberties. It protects citizens from
totalitarian excesses and establishes order between the organs of the State,
between the State and citizens and between citizens. Most importantly, it
reaffirms the position of the individual as the core defining element of the
12
PART Apolity. That is the justification to restrain power by empowering all citizens to
be authors of their destiny. According to the Petitioners, the technological
potential as well as the actual implementation of the Aadhaar project alters the
balance between the state and its citizens in this relational sphere and has the
potential to permanently redistribute power within the constitutional
framework.
14 As far as citizen-state relations are concerned, the Constitution was
framed to balance the rights of the individual against legitimate State interests.
Being transformative, it has to be interpreted to meet the needs of a changing
society. As the interpreter of the Constitution, it is the duty of this Court to be
vigilant against State action that threatens to upset the fine balance between
the power of the state and rights of citizens and to safeguard the liberties that
inhere in our citizens.
15 The present case involves issues that travel to the heart of our
constitutional structure as a democracy governed by the rule of law. Among
them is the scope of this Court’s power of judicial review. The Aadhaar
legislation was passed as a money bill in the Lok Sabha. Whether it was
permissible, in constitutional terms, to by-pass the Rajya Sabha, is the
question. The role of the Rajya Sabha in a bicameral legislative structure, the
limits of executive power when it affects fundamental rights and the duty of the
13
PART Astate to abide by interim orders of this Court are matters which will fall for
analysis in the case.
16 The case is hence as much about the rule of law and institutional
governance. Accountability is a key facet of the rule of law. Professor
Upendra Baxi has remarked:
“The problem of human rights, in situations of mass poverty,
is thus one of redistribution, access and needs. In other
words, it is a problem of “development”, a process of planned
social change through continuing exercise of public power. As
there is no assurance that public power will always, or even in
most cases, be exercised in favour of the deprived and
dispossessed, an important conception of development itself
is accountability, by the wielders of public power, to the
people affected by it and people at large. Accountability is the
medium through which we can strike and maintain a balance
between the governors and the governed.”10These are some of the unique challenges of this case. They must be analysed
in the context of our constitutional framework. The all-encompassing nature of
the Aadhaar project, its magnitude and the resultant impact on citizens’
fundamental rights, make it imperative to closely scrutinize the structure and
effect of the project. For this will determine the future of freedom.
10 Upendra Baxi, The Right To Be Human: Some Heresies, India International Centre Quarterly, Vol. 13, (1986).
14
PART BB The Puttaswamy11 principles
17 A unanimous verdict by a nine judge Bench declared privacy to be
constitutionally protected, as a facet of liberty, dignity and individual
autonomy. In a voluminous judgment, the Court traced the origins of privacy
and its content. The decision lays down the test of proportionality to evaluate
the constitutional validity of restrictions on the right to privacy.
18 The protection of privacy emerges both from its status as a natural right
inhering in every individual as well as its position as “a constitutionally
protected right”. As a constitutional protection, privacy traces itself to the
guarantee of life and personal liberty in Article 21 of the Constitution as well as
to other facets of freedom and dignity recognized and guaranteed by the
fundamental rights contained in Part III.
B.I Origins: privacy as a natural right19 Puttaswamy holds that the right to privacy inheres in every individual
as a natural right. It is inalienable and attaches to every individual as a pre-
condition for being able to exercise their freedom. The judgment of four judges
(with which Justice Sanjay Kishan Kaul concurred) held :
“42. Privacy is a concomitant of the right of the individual to
exercise control over his or her personality. It finds an origin11 Justice K S Puttaswamy (Retd) v Union of India (“Puttaswamy”), (2017) 10 SCC 1
15
PART Bin 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.”12 (Emphasis supplied)“319. Life and personal liberty are not creations of the
Constitution. These rights are recognised by the
Constitution as inhering in each individual as an intrinsic
and inseparable part of the human element which dwells
within.”13 (Emphasis supplied)In his concurring opinion, S A Bobde, J. opined:
“392…Privacy, with which we are here concerned, eminently
qualifies as an inalienable natural right, intimately
connected to two values whose protection is a matter of
universal moral agreement: the innate dignity and autonomy
of man.”14 (Emphasis supplied)Similarly, in his concurring opinion, Nariman, J. opined:
“532…It was, therefore, argued before us that given the
international conventions referred to hereinabove and the fact
that this right inheres in every individual by virtue of his being
a human being, such right is not conferred by the Constitution
but is only recognized and given the status of being
fundamental. There is no doubt that the petitioners are
correct in this submission.”15
(Emphasis supplied)In his concurring opinion, Abhay Manohar Sapre, J. opined:
“557. In my considered opinion, “right to privacy of any
individual” is essentially a natural right, which inheres in
every human being by birth…It is indeed inseparable and
inalienable from human being.”16
(Emphasis supplied)12 Ibid, at page 365
13 Ibid, at page 508
14 Ibid, at pages 536-537
15 Ibid, at page 605
16 Ibid, at page 61416
PART BThe judgment authoritatively settles the position. While privacy is recognized
and protected by the Constitution as an intrinsic and inseparable part of life,
liberty and dignity, it inheres in every individual as a natural right.
B.2 Privacy as a constitutionally protected right : liberty and dignity
20 The judgment placed the individual at the centre of the constitutional
rights regime. The individual lies at the core of constitutional focus. The ideals
of justice, liberty, equality and fraternity animate the vision of securing a
dignified existence to the individual. The Court held that privacy attaches to
the person and not the place where it is associated. Holding that privacy
protects the autonomy of the individual and the right to make choices, the
judgment of four judges held:
“108….The individual is the focal point of the Constitution
because it is in the realisation of individual rights that the
collective well being of the community is determined.Human dignity is an integral part of the Constitution.17
“266. Our Constitution places the individual at the
forefront of its focus, guaranteeing civil and political
rights in Part III and embodying an aspiration for
achieving socio-economic rights in Part IV.”
(Emphasis supplied)It was held that privacy rests in every individual “irrespective of social class or
economic status” and that every person is entitled to the intimacy and
autonomy that privacy protects:
17 Ibid, at page 403
17
PART B“271...It is privacy as an intrinsic and core feature of life and
personal liberty which enables an individual to stand up
against a programme of forced sterilization. Then again, it is
privacy which is a powerful guarantee if the State were to
introduce compulsory drug trials of non-consenting men or
women. The sanctity of marriage, the liberty of
procreation, the choice of a family life and the dignity of
being are matters which concern every individual
irrespective of social strata or economic well being. The
pursuit of happiness is founded upon autonomy and
dignity. Both are essential attributes of privacy which
makes no distinction between the birth marks of
individuals.”18 (Emphasis supplied)21 Recognizing that civil-political rights are not subservient to socio-
economic rights, the Court held that “conditions necessary for realizing or
fulfilling socio-economic rights do not postulate the subversion of political
freedom.”
“266...The refrain that the poor need no civil and political
rights and are concerned only with economic well-being has
been utilised through history to wreak the most egregious
violations of human rights. Above all, it must be realised that it
is the right to question, the right to scrutinize and the right to
dissent which enables an informed citizenry to scrutinize the
actions of government. Those who are governed are entitled
to question those who govern, about the discharge of their
constitutional duties including in the provision of socio-
economic welfare benefits. The power to scrutinize and to
reason enables the citizens of a democratic polity to make
informed decisions on basic issues which govern their
rights.19267... Conditions of freedom and a vibrant assertion of civil
and political rights promote a constant review of the justness
of socio-economic programmes and of their effectiveness in
addressing deprivation and want. Scrutiny of public affairs is
founded upon the existence of freedom. Hence civil and
political rights and socio-economic rights are complementary
and not mutually exclusive.”2018 Ibid, at page 484
19 Ibid, at pages 481-482
20 Ibid, at page 48218
PART BSignificantly, the Court rejected the submission that there is a conflict between
civil-political rights and socio-economic rights. Both in the view of the Court
are an integral part of the constitutional vision of justice.
22 Privacy, it was held, reflects the right of the individual to exercise control
over his or her personality. This makes privacy the heart of human dignity and
liberty. Liberty and dignity are complementary constitutional entities. Privacy
was held to be integral to liberty. Privacy facilitates the realization of
constitutional freedoms. This Court held thus:
“119. To live is to live with dignity. The draftsmen of the
Constitution defined their vision of the society in which
constitutional values would be attained by emphasising,
among other freedoms, liberty and dignity. So fundamental is
dignity that it permeates the core of the rights guaranteed to
the individual by Part III. Dignity is the core which unites the
fundamental rights because the fundamental rights seek to
achieve for each individual the dignity of existence. Privacy
with its attendant values assures dignity to the individual and
it is only when life can be enjoyed with dignity can liberty be
of true substance. Privacy ensures the fulfilment of dignity
and is a core value which the protection of life and liberty is
intended to achieve.”21127...The right to privacy is an element of human dignity. The
sanctity of privacy lies in its functional relationship with
dignity. Privacy ensures that a human being can lead a life of
dignity by securing the inner recesses of the human
personality from unwanted intrusion. Privacy recognises the
autonomy of the individual and the right of every person to
make essential choices which affect the course of life. In
doing so privacy recognises that living a life of dignity is
essential for a human being to fulfil the liberties and freedoms
which are the cornerstone of the Constitution.”2221 Ibid, at pages 406-407
22 Ibid, at page 41319
PART B23 The assurance of human dignity enhances the quality of life. The
“functional relationship” between privacy and dignity secures the “inner
recesses of the human personality from unwanted intrusion”. Privacy by
recognizing the autonomy of an individual, protects the right to make choices
essential to a dignified life. It thus enables the realization of constitutional
liberties and freedoms. It was held in the judgment:
“322. Privacy is the constitutional core of human dignity.
Privacy has both a normative and descriptive function. 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.23298…Dignity cannot exist without privacy. Both reside within
the inalienable values of life, liberty and freedom which the
Constitution has recognised. Privacy is the ultimate
expression of the sanctity of the individual. It is a
constitutional value which straddles across the spectrum of
fundamental rights and protects for the individual a zone of
choice and self-determination.”2424 Privacy is founded on the autonomy of the individual. The ability to
make choices is at the core of the human personality. Its inviolable nature is
manifested in the ability to make intimate decisions about oneself with a
legitimate expectation of privacy. Privacy guarantees constitutional protection
to all aspects of personhood. Privacy was held to be an “essential condition”
for the exercise of most freedoms. As such, given that privacy and liberty are
intertwined, privacy is necessary for the exercise of liberty. Bobde J, in his
separate opinion held that:
23 Ibid, at page 508
24 Ibid, at page 49920
PART B“409...Liberty and privacy are integrally connected in a way
that privacy is often the basic condition necessary for
exercise of the right of personal liberty. There are
innumerable activities which are virtually incapable of being
performed at all and in many cases with dignity unless an
individual is left alone or is otherwise empowered to ensure
his or her privacy.25411... Both dignity and privacy are intimately intertwined and
are natural conditions for the birth and death of individuals,
and for many significant events in life between these events.
Necessarily, then, the right of privacy is an integral part of
both ‘life’ and ‘personal liberty’ under Article 21, and is
intended to enable the rights bearer to develop her potential
to the fullest extent made possible only in consonance with
the constitutional values expressed in the Preamble as well
as across Part III.”2625 Apart from being a natural law right, the right to privacy was held to be a
constitutionally protected right flowing from Article 21. Privacy is an
indispensable element of the right to life and personal liberty under Article 21
and as a constitutional value which is embodied in the fundamental freedoms
embedded in Part III of the Constitution. Tracing out the course of precedent
in Indian jurisprudence over the last four decades, the view of four judges
holds:
“103. The right to privacy has been traced in the decisions
which have been rendered over more than four decades to
the guarantee of life and personal liberty in Article 21 and the
freedoms set out in Article 19.”27“320. Privacy is a constitutionally protected right which
emerges primarily from the guarantee of life and personal
liberty in Article 21 of the Constitution…”2825 Ibid, at page 543
26 Ibid, at page 544
27 Ibid, at page 401
28 Ibid, at page 50821
PART BIn a similar vein, Chelameswar J. while concurring with the view of four judges
held:
“375. The right to privacy is certainly one of the core
freedoms which is to be defended. It is part of liberty within
the meaning of that expression in Article 21.”2926 Being indispensable to dignity and liberty, and essential to the exercise
of freedoms aimed at the self-realization of every individual, privacy was held
to be a common theme running across the freedoms and rights guaranteed
not just by Article 21, but all of Part III of the Constitution. Bobde J. in his
separate opinion held that:
“406. It is not possible to truncate or isolate the basic freedom
to do an activity in seclusion from the freedom to do the
activity itself. The right to claim a basic condition like privacy
in which guaranteed fundamental rights can be exercised
must itself be regarded as a fundamental right. Privacy, thus,
constitutes the basic, irreducible condition necessary for
the exercise of ‘personal liberty’ and freedoms
guaranteed by the Constitution. It is the inarticulate
major premise in Part III of the Constitution.30415. Privacy is the necessary condition precedent to the
enjoyment of any of the guarantees in Part III. As a result,
when it is claimed by rights bearers before constitutional
courts, a right to privacy may be situated not only in
Article 21, but also simultaneously in any of the other
guarantees in Part III. In the current state of things, Articles
19(1), 20(3), 25, 28 and 29 are all rights helped up and made
meaningful by the exercise of privacy.”
(Emphasis supplied)29 Ibid, at page 531
30 Ibid, at pages 541-54222
PART BB.3 Contours of privacy
27 Privacy has been held to have distinct connotations including (i) spatial
control; (ii) decisional autonomy; and (iii) informational control. The judgment
of four judges held that:
“248. Spatial control denotes the creation of private spaces.
Decisional autonomy comprehends intimate personal choices
such as those governing reproduction as well as choices
expressed in public such as faith or modes of dress.Informational control empowers the individual to use privacy
as a shield to retain personal control over information
pertaining to the person.”Similarly, Nariman J. in his separate opinion held:
“521. In the Indian context, a fundamental right to privacy
would cover at least the following three aspects:
• Privacy that involves the person i.e. when there is
some invasion by the State of a person’s rights relatable to
his physical body, such as the right to move freely;
• Informational privacy which does not deal with a
person’s body but deals with a person’s mind, and therefore
recognizes that an individual may have control over the
dissemination of material that is personal to him.Unauthorised use of such information may, therefore lead to
infringement of this right; and
• The privacy of choice, which protects an individual’s
autonomy over fundamental personal choices.”3128 However, it was held that this is not an exhaustive formulation of
entitlements. In recording its conclusions, the opinion of four judges held:
“324. This Court has not embarked upon an exhaustive
enumeration or a catalogue of entitlements or interests
comprised in the right to privacy. The Constitution must
evolve with the felt necessities of time to meet the
challenges thrown up in a democratic order governed by
the rule of law. The meaning of the Constitution cannot be31 Ibid, at page 598
23
PART Bfrozen on the perspectives present when it was adopted.
Technological change has given rise to concerns which were
not present seven decades ago and the rapid growth of
technology may render obsolescent many notions of the
present. Hence the interpretation of the Constitution must
be resilient and flexible to allow future generations to
adapt its content bearing in mind its basic or essential
features.”32 (Emphasis supplied)Additionally, Bobde J., in his separate opinion held that the right to privacy
may also inhere in other parts of the Constitution beyond those specified in
the judgment:
“415. Therefore, privacy is the necessary condition precedent
to the enjoyment of any of the guarantees in Part III. As a
result, when it is claimed by rights bearers before
constitutional courts, a right to privacy may be situated not
only in Article 21, but also simultaneously in any of the other
guarantees in Part III. In the current state of things, Articles
19(1), 20(3), 25, 28 and 29 are all rights helped up and made
meaningful by the exercise of privacy. This is not an
exhaustive list. Future developments in technology and
social ordering may well reveal that there are yet more
constitutional sites in which a privacy right inheres that
are not at present evident to us.”33 (Emphasis supplied)B.4 Informational privacy
29 Puttaswamy held that informational privacy is an essential aspect of
the fundamental right to privacy. It protects an individual’s free, personal
conception of the ‘self.’ Justice Nariman held that informational privacy “deals
with a person’s mind, and therefore recognizes that an individual may have
control over the dissemination of material that is personal to him”. Any
unauthorised use of such information may therefore lead to infringement of the
32 Ibid, at page 509
33 Ibid, at page 54524
PART Bright to privacy. In his concurring judgment, Justice Kaul held that
informational privacy provides the right to an individual “to disseminate certain
personal information for limited purposes alone”. Kaul J. in his separate
opinion held:
“620…The boundaries that people establish from others in
society are not only physical but also informational. There
are different kinds of boundaries in respect to different relations.Privacy assists in preventing awkward social situations and
reducing social frictions. Most of the information about
individuals can fall under the phrase “none of your business”. …
An individual has the right to control one’s life while submitting
personal data for various facilities and services. It is but
essential that the individual knows as to what the data is
being used for with the ability to correct and amend it. The
hallmark of freedom in a democracy is having the
autonomy and control over our lives which becomes
impossible, if important decisions are made in secret
without our awareness or participation.”34 (Emphasis
supplied)30 A reasonable expectation of privacy requires that data collection does
not violate the autonomy of an individual. The judgment of four judges noted
the centrality of consent in a data protection regime. This was also highlighted
in the separate concurring opinion of Justice Kaul:
“625. Every individual should have a right to be able to
exercise control over his/her own life and image as portrayed
to the world and to control commercial use of his/her identity.This also means that an individual may be permitted to
prevent others from using his image, name and other aspects
of his/her personal life and identity for commercial purposes
without his/her consent.”3534 Ibid, at page 627
35 Ibid, at page 62925
PART BConsent, transparency and control over information are crucial to
informational privacy. In this structure, Court has principally focused on the
“individual” as central to our jurisprudence.
B.5 Restricting the right to privacy31 There is an inherent importance of giving a constitutional status to
privacy. Justice Nariman dealt with this:
“490...The recognition of such right in the fundamental rights
chapter of the Constitution is only a recognition that such right
exists notwithstanding the shifting sands of majority
governments. 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.”36A constitutional right may embody positive and negative ‘aspects’. They
signify mandates. At an affirmative level, they emphasise the content and
diversity of our liberties. As a ‘negative’, they impose restraints on the state
and limit the power of the state to intrude upon the area of personal freedom.
‘Negative’ in this sense reflects a restraint: the fundamental rights are a
restraining influence on the authority of power. In addition to keeping itself
within the bounds of its authority, the state may have a positive obligation to
perform. Rights such as informational privacy and data protection mandate
36 Ibid, at pages 580-581
26
PART Bthat the state must bring into being a viable legal regime which recognizes,
respects, protects and enforces informational privacy. Informational privacy
requires the state to protect it by adopting positive steps to safeguard its
cluster of entitlements. The right to informational privacy is not only vertical
(asserted and protected against state actors) but horizontal as well.
Informational privacy requires legal protection because the individual cannot
be left to an unregulated market place. Access to and exploitation of individual
personal data – whether by state or non-state entities – must be governed by
a legal regime built around the principles of consent, transparency and
individual control over data at all times.
32 Privacy, being an intrinsic component of the right to life and personal
liberty, it was held that the limitations which operate on those rights, under
Article 21, would operate on the right to privacy. Any restriction on the right to
privacy would therefore be subjected to strict constitutional scrutiny. The
constitutional requirements for testing the validity of any encroachment on
privacy were dealt with in the judgment as follows:
“325… In the context of Article 21 an invasion of privacy must
be justified on the basis of a law which stipulates a procedure
which is fair, just and reasonable. The law must also be valid
with reference to the encroachment on life and personal
liberty under Article 21. An invasion of life or personal liberty
must meet the three-fold requirement of (i) legality, which
postulates the existence of law; (ii) need, defined in terms of a
legitimate state aim; and (iii) proportionality which ensures a
rational nexus between the objects and the means adopted to
achieve them.”3737 Ibid, at page 509
27
PART BThese three-fold requirements emerge from the procedural and content-based
mandate of Article 21. The first requirement is the enactment of a valid law,
which justifies an encroachment on privacy. The second requirement of a
legitimate State aim ensures that the law enacted to restrict privacy is
constitutionally reasonable and does not suffer from manifest arbitrariness.
The third requirement of proportionality ensures that the nature and quality of
the encroachment on the right to privacy is not disproportionate to the purpose
of the law. Proportionality requires the State to justify that the means which
are adopted by the legislature would encroach upon the right to privacy only to
the minimum degree necessary to achieve its legitimate interest.
Justice Nariman held thus:
“495…Statutory provisions that deal with aspects of privacy
would continue to be tested on the ground that they would
violate the fundamental right to privacy, and would not be
struck down, if it is found on a balancing test that the social or
public interest and the reasonableness of the restrictions
would outweigh the particular aspect of privacy claimed. If this
is so, then statutes which would enable the State to
contractually obtain information about persons would pass
muster in given circumstances, provided they safeguard the
individual right to privacy as well… in pursuance of a statutory
requirement, if certain details need to be given for the
concerned statutory purpose, then such details would
certainly affect the right to privacy, but would on a balance,
pass muster as the State action concerned has sufficient
inbuilt safeguards to protect this right – viz. the fact that such
information cannot be disseminated to anyone else, save on
compelling grounds of public interest.”3833 While five judges of the Court adopted the “proportionality” standard to
test a law infringing privacy, Justice Chelameswar discussed the need to
38 Ibid, at page 583
28
PART Bapply of a “compelling state interest” standard, describing it as the “highest
standard of scrutiny that a court can adopt”. Describing Article 21 as the
“bedrock” of privacy, the learned Judge held:
“379…If the spirit of liberty permeates every claim of privacy,
it is difficult if not impossible to imagine that any standard of
limitation, other than the one under Article 21 applies.39380. The just, fair and reasonable standard of review under
Article 21 needs no elaboration. It has also most commonly
been used in cases dealing with a privacy claim hitherto.Gobind resorted to the compelling state interest standard in
addition to the Article 21 reasonableness enquiry. From the
United States where the terminology of ‘compelling state
interest’ originated, a strict standard of scrutiny comprises two
things- a ‘compelling state interest’ and a requirement of
‘narrow tailoring’ (narrow tailoring means that the law must be
narrowly framed to achieve the objective). As a term,
compelling state interest does not have definite contours in
the US. Hence, it is critical that this standard be adopted with
some clarity as to when and in what types of privacy claims it
is to be used. Only in privacy claims which deserve the
strictest scrutiny is the standard of compelling State
interest to be used. As for others, the just, fair and
reasonable standard under Article 21 will apply. When
the compelling State interest standard is to be employed
must depend upon the context of concrete cases.”40
(Emphasis supplied)Justice Chelameswar’s view accepts the ‘fair, just and reasonable’ standard in
the generality of cases, carving an exception in cases of a certain category
where a heightened scrutiny must apply. Those categories of exception are
not spelt out. They would, as the judge opined, be evolved on a case by case
basis.
39 Ibid, at page 532
40 Ibid, at pages 532-53329
PART B34 The Bench of nine judges had held that the contours of privacy exist
across the spectrum of constitutionally protected freedoms. Privacy was held
to be a necessary condition precedent to the enjoyment of the guarantees in
Part III. This has enhanced the scope of the protection guaranteed to privacy.
Consequently, privacy infringements will generally have to satisfy the other
tests applicable apart from those under Article 21. In his concurring opinion,
Justice S A Bobde held:
“427. Once it is established that privacy imbues every
constitutional freedom with its efficacy and that it can be
located in each of them, it must follow that interference
with it by the state must be tested against whichever one
or more Part III guarantees whose enjoyment is curtailed.As a result, privacy violations will usually have to answer to
tests in addition to the one applicable to Article 21, Such a
view would be wholly consistent with R. C. Cooper v. Union of
India.”41 (Emphasis supplied)Any attempt by the State to restrict privacy must therefore meet the
constitutional requirements prescribed for each provision of Part III, which the
restriction infringes. In his concurring opinion, Justice Nariman held thus:
“488... Every State intrusion into privacy interests which deals
with the physical body or the dissemination of information
personal to an individual or personal choices relating to the
individual would be subjected to the balancing test
prescribed under the fundamental right that it infringes
depending upon where the privacy interest claimed is
founded.”42 (Emphasis supplied)Justice Nariman further held:
“526…when it comes to restrictions on this right, the drill
of various Articles to which the right relates must be
scrupulously followed. For example, if the restraint on
privacy is over fundamental personal choices that an41 Ibid, at page 549
42 Ibid, at page 58030
PART Bindividual is to make, State action can be restrained under
Article 21 read with Article 14 if it is arbitrary and
unreasonable; and under Article 21 read with Article 19(1)(a)
only if it relates to the subjects mentioned in Article 19(2) and
the tests laid down by this Court for such legislation or
subordinate legislation to pass muster under the said Article.Each of the tests evolved by this Court, qua legislation or
executive action, under Article 21 read with Article 14; or
Article 21 read with Article 19(1) (a) in the aforesaid examples
must be met in order that State action must pass muster.”43
(Emphasis supplied)The constitutional guarantee on protection of privacy was placed on a sure
foundation. Since emanations of privacy are traceable to various rights
guaranteed by Part III, a law or executive action which encroaches on privacy
must meet the requirements of the constitutionally permissible restriction in
relation to each of the fundamental rights where the claim is founded.
B.6 Legitimate state interests35 Recognizing that the right to privacy is not absolute, the judgment
recognizes that legitimate state interests may be a valid ground for the
curtailment of the right subject to the tests laid down for the protection of
rights. Justice Nariman held:
“526...This right is subject to reasonable regulations made by
the State to protect legitimate State interests or public
interest. However, when it comes to restrictions on this right,
the drill of various Articles to which the right relates must be
scrupulously followed.”4443 Ibid, at page 601
44 Ibid, at page 60131
PART BRecognizing that a legitimate state aim is a pre-requisite for any restriction on
the right, the judgment of four judges held:
“310…the requirement of a need, in terms of a legitimate
state aim, ensures that the nature and content of the law
which imposes the restriction falls within the zone of
reasonableness mandated by Article 14, which is a guarantee
against arbitrary state action. The pursuit of a legitimate state
aim ensures that the law does not suffer from manifest
arbitrariness.”36 The judgment sets out illustrations of legitimate State interests. The
provisos to various fundamental rights were held to be an obvious restriction
on the right to privacy. It was held that the State does have a legitimate
interest in collection and storage of private information when it is related to
security of the nation. Apart from the concerns of national security, an
important State interest, it was held, lies in ensuring that scarce public
resources reach the beneficiaries for whom they are intended. It was held
thus:
“311...Allocation of resources for human development is
coupled with a legitimate concern that the utilisation of
resources should not be siphoned away for extraneous
purposes… 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.”45Prevention and investigation of crime, protection of the revenue and public
health were demarcated as being part of other legitimate aims of the State.
The judgment places an obligation on the State to ensure that while its
legitimate interests are duly preserved the data which the State collects is
45 Ibid, at page 505
32
PART Bused only for the legitimate purposes of the State and is “not to be utilised
unauthorizedly for extraneous purposes.”
37 However, reiterating that every facet of privacy is to be protected, the
judgment held that there should be a careful balance between individual
interests and legitimate concerns of the state. Justice Nariman, in his separate
opinion held:
“488. Every State intrusion into privacy interests which deals
with the physical body or the dissemination of information
personal to an individual or personal choices relating to the
individual would be subjected to the balancing test prescribed
under the fundamental right that it infringes depending upon
where the privacy interest claimed is founded.”4638 The judgment in Puttaswamy recognizes the right to privacy as a
constitutional guarantee protected as intrinsic to the freedoms guaranteed by
Part III of the Constitution. Privacy is integral to the realization of human
dignity and liberty. A society which protects privacy, values the worth of
individual self-realization. For it is in the abyss of solitude that the innermost
recesses of the mind find solace to explore within and beyond.
46 Ibid, at page 580
33
PART CC Submissions
C.I Petitioners’ submissions
The petitioners challenge the constitutional validity of:
a. The Aadhaar programme that operated between 28.01.2009 till the coming
into force of the Aadhaar Act, 2016 on 12.07.2016;
b. The Aadhaar Act, 2016 (and alternatively certain provisions of the Act);
c. Regulations framed under the Aadhaar Act, 2016;
d. Elements of the Aadhaar programme that continue to operate without the
cover of the Act;
e. Subordinate legislation including the Money Laundering (Amendment)
Rules, 2017;
f. All notifications issued under Section 7 of the Aadhaar Act in so far as they
make Aadhaar mandatory for availing of certain benefits, services and
subsidies; and
g. Actions which made Aadhaar mandatory even where the activity is not
covered by Section 7 of the Act.
Mr Shyam Divan, learned Senior Counsel submitted that the Aadhaar project
and Act are ultra vires on the following grounds:
i The project and the Act violate the fundamental right to privacy;
34
PART Cii The architecture of the Aadhaar project enables pervasive surveillance by
the State;
iii The fundamental constitutional feature of a ‘limited government’ - which is
the sovereignty of the people and limited government authority- is changed
completely post Aadhaar and reverses the relationship between the citizen
and the State;
iv Due to the unreliability of biometric technology, there are authentication
failures which lead to the exclusion of individuals from welfare schemes;
v A citizen or resident in a democratic society has a choice to identify herself
through different modes in the course of her interactions generally in
society, as well as in her interactions with the State. Mandating
identification by only one mode is highly intrusive, excessive and
disproportionate and violates Articles 14, 19 and 21; and
vi The procedure adopted by the State before and after the enactment of the
law is violative of Articles 14 and 21 because:
a. There is no informed consent at the time of enrolment;
b. UIDAI does not have control over the enrolling agencies and
requesting entities that collect sensitive personal information which
facilitates capture, storage and misuse of information; and
35
PART Cc. The data collected and uploaded into the CIDR is not verified by any
government official designated by UIDAI.
Mr Kapil Sibal, learned Senior Counsel submits that the provisions of the
Aadhaar Act are unconstitutional for the following reasons:
i The aggregation and concentration of sensitive personal information under
the Aadhaar Act is impermissible because it is capable of being used to
affect every aspect of an individual’s personal, professional, religious and
social life. It is therefore violative of the individual freedoms guaranteed
under Articles 19(1)(a) to 19(1)(g), 21 and 25 of the Constitution;
ii Such aggregation of information is also an infringement of informational
privacy, which has been recognised in Puttaswamy;
iii Making Aadhaar mandatory unreasonably deprives citizens of basic rights
and entitlements and infringes Article 21 of the Constitution;
iv Use of Aadhaar as an exclusive identity for availing of subsidies, benefits
and services is disproportionate and violates Article 14 for being arbitrary
and discriminatory against persons otherwise entitled to such benefits;
v Collection and storage of data with the government under the Aadhaar Act
is violative of the right to protection from self-incrimination, and the right to
36
PART Cprivacy and personal dignity and bodily Integrity envisaged under Article
20(3) and Article 21 of the Constitution;
vi To prescribe that Aadhaar is the only identity that enables a person to
receive entitlements is contrary to the right of an individual under the
Constitution to identify the person through other prescribed documentation
such as electoral rolls or passports;
vii Section 7 of the Aadhaar Act is applicable only to such subsidies, benefits
and services, for which the entire expenditure is directly incurred from the
Consolidated Fund of India or from which the entire receipts directly form
part of the Consolidated Fund of India;
viii Use of Aadhaar as the sole identity will not prevent pilferage and diversion
of funds and subsidies, as faulty identification is only one of the factors that
contributes to it; and
ix The Aadhaar project conditions the grant of essential benefits upon the
surrender of individual rights.
Mr Gopal Subramanium, learned Senior Counsel, made the following
submissions:
37
PART Ci The Aadhaar project violates dignity under Article 21 of the Constitution as
recognised in the judgments- in Puttaswamy, NALSA47 and
Subramanian Swamy48;
ii The Aadhaar project is unconstitutional as it seeks a waiver of
fundamental rights;
iii The Aadhaar project violates the guarantees of substantive and
procedural reasonableness under Articles 14,19 and 21;
iv Aadhaar perpetrates exclusion from social security schemes and is
therefore discriminatory under Article 14;
v The Aadhaar Act lacks legitimacy in its object in so far as it validates a
breach of fundamental rights retrospectively;
vi Rights and entitlements conferred under the Constitution cannot be based
on algorithmic probabilities which UIDAI cannot control;
vii No consequence is prescribed for non-authentication under the Aadhaar
Act;
viii The Aadhaar Act violates Part IX of the Constitution, which provides for
decentralisation (to Panchayats), while the Aadhaar scheme strikes at the
federal structure of the Constitution; and
47 (2014) 5 SCC 438
48 (2016) 7 SCC 22138
PART Cix Breaches under the Aadhaar Act cannot be cured.
Mr Arvind Datar, learned Senior Counsel has submitted:
i Rule 9 of the PMLA (Second Amendment) Rules, 2017 which requires
mandatory linking of Aadhaar with bank accounts is unconstitutional and
violates Articles 14, 19(1)(g), 21 and 300A of the Constitution, Sections 3,
7 and 51 of the Aadhaar Act, and is also ultra vires of the provisions of
the PMLA Act, 2002 on the following grounds:
a. Under the impugned amended Rules, linkage of Aadhaar numbers to
bank accounts is mandatory and persons not enrolling for Aadhaar
cannot operate a bank account, which violates the spirit of Article 14 in
entirety in so far it arbitrarily metes out unequal treatment based on
unreasonable classification;
b The impugned Rules are violative of Article 19(1)(g) as the Rules refer
to companies, firms, trusts, etc., whereas the Aadhaar Act is only to
establish identity of “individuals”;
c Non-operation of a bank account, even for a temporary period, leads
to deprivation of an individual's property and therefore constitutes a
violation under Article 300A of the Constitution, which provides that
deprivation can be done only by primary legislation; and
39
PART Cd The Rule has no nexus to the object of the PMLA Act, as the Act has
no provision to make bank accounts non-operational;
ii Section 139AA of the Income Tax Act, 1961 is liable to be struck down as
violative of Articles 14, 21 and 19(g) of the Constitution;
iii The decision in Binoy Viswam v Union of India49 requires re-
consideration in view of the nine judge Bench decision in Puttaswamy;
iv In view of serious deficiencies in the Aadhaar Act, there is a need for
guidelines under Article 142 to protect inter alia, the right to privacy and to
implement the mandate of the nine judge Bench in Puttaswamy;
v If the Aadhaar project is not struck down, it should be confined only for
identification or authentication of persons who are entitled to subsidies,
benefits and services for which expenditure is incurred from the
Consolidated Fund of India;
vi Sections 2(g), 2(j) 7, 57 and 59 of the Aadhaar Act violate Articles 14, 21
and 300A of the Constitution; and
vii PMLA Rule 9 is arbitrary as it is contrary to the RBI Master Circular
(issued in 2013), which provided a list of documents that were to be
treated as ‘identity proof’, in relation to proof of name and proof of
residence.
49(2017) 7 SCC 59
40
PART CMr P Chidambaram, learned Senior Counsel argued that the Aadhaar Act
could not have been passed as a Money Bill. Thus, he submitted:
i The only difference between financial bills and money bills is the term
“only” in Article 110 of the Constitution which implies that the scope of
money bills is narrower than the scope of financial bills and provisions
relating to money bills must thus be construed strictly;
ii The Aadhaar Act, which was passed as a money bill, should be struck
down since many of its provisions such as Section 57 have no relation to
the nature of a Money Bill and bear no nexus to the Consolidated Fund of
India;
iii Since Money Bills can only be introduced in the Lok Sabha, on account of
the curtailment of the powers of the Rajya Sabha and the President, the
relevant provisions must be accorded a strict interpretation;
iv While Article 110(3) provides that the decision of the Speaker of the Lok
Sabha as to whether a Bill is a ‘Money Bill’ shall be final, the finality is
only with regard to the Parliament and does not exclude judicial review;
and
v Since the legislative procedure is illegal and the power of the Rajya
Sabha has been circumvented to disallow legislative scrutiny of the
41
PART CAadhaar bill, provisions of the Act cannot be severed to save the Act and
the Act is liable to be struck down as a whole by the Court.
Mr KV Vishwanathan, learned Senior Counsel made the following
submissions:
i All acts done prior to the passage of the Act are void ab initio and are not
saved or validated by Section 59. In any event, Section 59 is invalid;
ii Collection, storage and use of data under the Aadhaar project and Act
are invalid for the following reasons:
a. The Aadhaar Act and the surrounding infrastructure has made the
possession of Aadhaar de facto mandatory;
b. Compulsory collection of identity information violates various facets of
the right to privacy - bodily privacy, informational privacy and
decisional autonomy;
c. The Act is unconstitutional since it collects the identity information of
children between 5-18 years without parental consent;
d. Centralised storage of identity information and the unduly long period
of retention of transaction data and authentication records is
disproportionate;
42
PART Ce. The Act and Regulations preclude Aadhaar number holders from
accessing or correcting their identity information stored on the CIDR;
and
f. The Act and Regulations lack safeguards to secure sensitive personal
data.
iii Services like health related services, and those related to food, pensions
and daily wages claimed under Section 7 of the Act have been denied
because of biometric failure. Biometric infrastructure operates on a
probabilistic system, which cannot be ‘one hundred percent infallible’.
Thus, the State needs to take steps to prevent the denial of benefits by
adopting alternate methods for verification of identity. This is absent at
present, resulting in a violation of Articles 14 21;
iv No provision is made for a hearing against omission and deactivation of
the Aadhaar number, which violates the principles of natural justice; and
v Sections 2(g), 2(j), 2(k) and 23(2) of the Aadhaar Act suffer from
excessive delegation and the allied regulations are vague, manifestly
arbitrary and unreasonable.
Mr Anand Grover, learned Senior Counsel has submitted thus:
43
PART Ci The Aadhaar project extends far beyond the scope of the Aadhaar Act
with no procedural safeguards. Hence it violates Article 21 in as much as
it is without the support and sanction of law. The data collected is
unauthorised, excessive and being illegally shared;
ii The use of biometric technology to establish identity is uncertain,
unproven and unreliable leading to exclusion and a violation of Articles 14
and 21;
iii The lack of security in the Aadhaar project violates the right to privacy
under Article 21;
iv Excessive powers have been delegated to the UIDAI through the
Aadhaar Act; and
v Sections 33(2) and 57 of the Act are vague, overbroad and
constitutionally invalid.
Ms Meenakshi Arora, learned Senior Counsel contended that:
i The general and indiscriminate retention of personal data, including meta-
data, and the ensuing possibility of surveillance by the State has a chilling
effect on fundamental rights like the freedom of speech and expression,
privacy, and dignity;
44
PART C
ii Making Aadhaar the sole means of identification for various services
impinges upon dignity as it amounts to requiring a license for the exercise
of fundamental rights; and
iii The Aadhaar project does not contain any specific provisions for data
protection, apart from a mere general obligation on UIDAI, which is a
violation of the obligation of the State to ensure that the right to life,
liberty, dignity and privacy of every individual is not breached under Part
III of the Constitution.
Mr Sajjan Poovayya, learned Senior Counsel has urged the following
submissions:
i The Aadhaar Act fails to satisfy the constitutional test of a just, fair and
reasonable law;
ii Maintenance of Aadhaar records by the State under Section 32 is an
unwarranted intrusion by the State;
iii Use of personal information under Section 33 is an unwarranted intrusion
by the State;
iv Section 57 of the Act is contrary to the principle of purpose limitation; and
45
PART Cv Sections 2(g) and 2(j), the proviso to Section 3(1), Section 23(2)(g) and
Section 23(2)(n) read with Section 54(2)(l), and Section 29(4) of the Act
suffer from the vice of excessive delegation.
Mr CU Singh, learned Senior Counsel, argued that the rights of the child are
violated through the Aadhaar project. A child has no right to give consent or to
enter into a contract. A child in India, under law, has no power or right to bind
herself to anything, to consent or enter into contracts. In this background,
there is no compelling state interest to mandate Aadhaar for children. The
fundamental right of a child to education cannot be made subject to production
of Aadhaar. These requirements are not only contrary to domestic legislation
protecting the rights of children but also against India’s international
obligations. Learned counsel also spoke of the violation of the rights of
homeless people who are denied benefits due to the lack of a fixed abode.
Mr Sanjay Hegde, learned Senior Counsel has urged that since there is no
‘essential practice’ involved, exemptions must be allowed from the mandatory
nature of the Aadhaar Act on the grounds of freedom of conscience under
Article 25 of the Constitution.
Ms Jayna Kothari, learned Counsel arguing on behalf of an intervenor
organization for transgender persons and sexual minorities urged that the
46
PART CAadhaar Act discriminates against sexual minorities. Aadhaar Regulations
require demographic information. The enrolment form has a third gender, but
there is no uniformity across the board, and the documents that have to be
produced to get an Aadhaar card do not always have that option. Aadhaar is
being made mandatory for almost everything but transgender persons cannot
get an Aadhaar because they do not have the gender identity documents that
Aadhaar requires. This non-recognition of gender identity leads to denial of
benefits which is violative of both Articles 14 and 21.
It has also been argued before us in an intervention application that denial of
Aadhaar to Non-Resident Indians leads to discrimination when NRIs seek to
avail of basic services in India.
C.2 Respondents’ submissions
Mr KK Venugopal, Learned Attorney General for India, has submitted thus:
i. For the period prior to coming into force of the Aadhaar Act, because of
the interim orders passed by the SC, obtaining an Aadhaar number or
enrollment number was voluntary, and hence there was no violation of
any right;
ii. Section 59 of the Aadhaar Act protects all actions taken from the period
between 2010 till the passage of the Aadhaar Act in 2016;
47
PART Ciii. The judgments in MP Sharma and Kharak Singh being those of 8 and 6
judges respectively, holding that the right to privacy is not a fundamental
right, judgments of smaller benches delivered during the period upto
Puttaswamy would be per incuriam. Hence, the State need not have
proceeded on the basis that a law was required for the purpose of getting
an Aadhaar number or an enrolment number. As a result, the
administrative actions taken would be valid as well as the receipt of
benefits and subsidies by the beneficiaries;
iv. Subsequent to the Aadhaar Act, the petitioners would have to establish
that one or more of the tests laid down by the nine judge bench in
Puttaswamy render the invasion of privacy resulting from the Aadhaar
Act unconstitutional. The tests laid down in Puttaswamy have been
satisfied and hence the Aadhaar Act is not unconstitutional for the
following reasons:
a. The first condition in regard to the existence of a law has been
satisfied;
b. Legitimate state interests such as preventing the dissipation of social
welfare benefits, prevention of money laundering, black money and
tax evasion, and protection of national security are satisfied through
the Act;
48
PART Cc. The Aadhaar Act satisfies the test of proportionality by ensuring that a
“rational nexus” exists between the objects of the Act and the means
adopted to achieve its objects; and
d. For the purpose of testing legitimate State interest and proportionality,
the Court must take note of the fact that each one of the subsidies and
benefits under Section 7 is traceable to rights under Article 21 of the
Constitution - such as the right to live with human dignity, the right to
food, right to shelter, right to employment, right to medical care and
education. If these rights are juxtaposed with the right to privacy, the
former will prevail over the latter.
v. The Aadhaar Act was validly passed as a Money Bill on the following
grounds:
a. The term ‘targeted delivery of subsidies’ contemplates an expenditure of
funds from the Consolidated Fund of India, which brings the Aadhaar
Act within the purview of a Money Bill under Art. 110 of the Constitution;
b. Sections 7, 24, 25 and the Preamble of the Act also support its
classification as a Money Bill;
c. The Aadhaar Act has ancillary provisions, but they are related to the
pith and substance of the legislation which is the targeted delivery of
subsidies and benefits; and
d. Section 57 of the Act is saved by Article 110 (1) (g) of the Constitution as
it is a standalone provision and even if a Bill is not covered under
49
PART Cclauses (a) to (f) of Article110(1), it can still be covered under Article110
(1) (g).
Mr Tushar Mehta, learned Additional Solicitor General, submitted:
i. Section 139AA of the Income Tax Act, was examined in Binoy Viswam
in the context of Article 19 and fulfills the three tests laid down under
Puttaswamy as well as the test of manifest arbitrariness laid down in
Shayara Bano v Union of India50;
ii. The demographic information that is required for Aadhaar enrollment is
already submitted while obtaining a PAN card and therefore individuals
do not have a legitimate interest in withholding information;
iii. Linking Aadhaar to PAN is in public interest on the following grounds:
a. The State has a legitimate interest in curbing the menace of black
money, money laundering and tax evasion, often facilitated by
duplicate PAN cards, and the linking of Aadhaar to the PAN card will
ensure that one person holds only one PAN Card, thereby curbing
these economic offences;
b. Aadhaar-PAN linking is in public interest and satisfies the test of
proportionality and reasonableness;
50 (2017) 9 SCC 1
50
PART Cc. The individual interest gives way to a larger public interest and a
statutory provision furthering state interest will take precedence over
fundamental rights;
d. The Court must not interfere with the Legislature’s wisdom unless the
statutory measure is shockingly disproportionate to the object sought
to be achieved;
e. India is a signatory to various international treaties under which it has
obligations to take action to curb the menace of black money and
money laundering in pursuance of which measures including the
amendments to inter alia the Income Tax Act and the PMLA Act and
Rules thereunder, have been brought about by the legislature;
f. Statutory provisions under Aadhaar Act and Income Tax Act are distinct
and standalone. Moreover, the validity of one provision cannot be
examined in the light of the other;
g. Ascribing a (mandatory or voluntary) character to the provisions of a
statute is Parliament’s prerogative and cannot be questioned by
courts; and
h. Rule 9 of the amended PMLA Rules that mandates furnishing of an
Aadhaar number to open a bank account is not ultra vires the Aadhaar
Act. Similarly, the Rule that an existing bank account will become non-
operational if not linked with Aadhaar within six months is not a
51
PART Cpenalty but a consequence to render the accounts of money
launderers non-operational.
Mr Rakesh Dwivedi, learned Senior Counsel, has submitted:
i. The right to privacy exists when there is a reasonable expectation of
privacy. However, this reasonable expectation of privacy differs from one
dataset to another since the Aadhaar Act draws a distinction between
demographic information, optional demographic information (eg. mobile
number), core biometric information (fingerprints and iris scans) and
biometric information such as photographs;
ii. Alternatively, the applicability of Article 21 has to be confined and limited
to core biometric information;
iii. Fundamental rights are not absolute and can be restricted if permitted
specifically. Article 21 expressly envisages deprivation by laws which
seek to carry out legitimate objectives and are reasonable and
proportionate;
iv. The Aadhaar Act does not cause exclusion because if authentication fails
after multiple attempts, then the subsidies, benefits and services, can be
availed of by proving the possession of an Aadhaar number, either by
52
PART Cproducing the Aadhaar card or by producing the receipt of the application
for enrolment and producing the enrolment ID number;
v. Section 7 of the Aadhaar Act protects the right to human dignity
recognized by Article 21 of the Constitution by providing services,
benefits and subsidies. The Aadhaar Act is a welfare scheme in
pursuance of the State’s obligation to respect the fundamental rights to
life and personal liberty; to ensure justice (social, political and economic)
and to eliminate inequality (Article 14) with a view to ameliorate the lot of
the poor and the Dalits;
vi. Socio-economic rights must be read into Part III of the Constitution since
civil and political rights cannot be enjoyed without strengthening socio -
economic rights;
vii. A welfare State has a duty to ensure that each citizen has access at least
to the basic necessities of life. The idea of a socialist state under a
mandate to secure justice- social, economic and political - will be
completely illusory if it fails to secure for its citizens the basic
necessities in life. There cannot be any dignity for those who suffer
starvation, subjugation, deprivation and marginalization and those who
are compelled to do work which is intrinsically below human dignity;
53
PART Cviii. The Aadhaar number does not convert individuals to numbers. The
Aadhaar number is necessary for authentication and it is solely used for
that purpose. The petitioners have conflated the concepts of identity and
identification. Authentication through a number is merely a technological
requirement which does not alter the identity of an individual;
ix. Even if there is a conflict between the right to privacy and the right to food
and shelter, the Aadhaar Act strikes a fair balance. The Aadhaar Act
ensures human dignity and the right to life and liberty, hence there would
be no reasonable expectation of privacy and autonomy;
x. The requirement to obtain an Aadhaar number under the Aadhaar Act
does not reflect a lack of trust in citizens. Authentication by the State
does not presume that all its citizens are dishonest. The provisions of the
Aadhaar Act are merely regulatory in nature - similar to the process of
frisking at airports or other offices - since there is no effective method to
ensure targeted delivery;
xi. The “least intrusive test” is not applicable in the present case. The
requirement that the least intrusive means of achieving the State object
must be adopted, has been rejected by Indian courts in a catena of
decisions as it involves a value judgment and second guessing the
wisdom of the legislature. Such a test violates the separation of powers
between the legislature and the judiciary;
54
PART Cxii. Even assuming that the ‘least intrusive method’ test applies, the exercise
of determining the least intrusive method of identification is a technical
exercise and cannot be undertaken in a court of law;
xiii. The Petitioners who have furnished smartcards as an alternative to the
Aadhaar card, have not established that smartcards are less intrusive
than the Aadhaar card authentication process;
xiv. The ‘strict scrutiny test’ does not apply to the Aadhaar Act. That test is
conceptualised in the United States, to be only applied to ‘suspect
classifications’;
xv. Section 7 of the Aadhaar Act does not involve any waiver of fundamental
rights;
xvi. There can be no assumption of mala fide against the government or the
legislature. A mere possibility of abuse is not a ground to invalidate the
Aadhaar Act;
xvii. Through Section 57, Parliament intended to make the use of the Aadhaar
number available for other purposes due to the liberalization and
privatization of the economy in areas earlier occupied by the government
and public sector. Many private corporate bodies are operating parallel to
and in competition with the public sector such as in banking, insurance,
55
PART Cdefence, and health. These are core sectors absolutely essential for
national integrity, to the national economy and the life of people;
xviii. Sections 2(g), and (j) read with Section 54(2)(a) and Section 54(1) do not
suffer from excessive delegation of power to UIDAI and there are
sufficient guidelines coupled with restrictions. The regulation making
power of the Authority under the Act is limited by the use of the
expression ‘such other biological attribute’ which will be interpreted
ejusdem generis with the categories of information mentioned before
namely, fingerprints and iris scan. These categories have certain
characteristics: firstly, they do not contain genetic information; secondly,
they are non-intrusive; thirdly, apart from carrying out authentication they
do not reveal any other information of the individual; fourthly, these are
modes of identification used for identifying a person even without digital
technology; fifthly, they are capable of being used for instantaneous
digital authentication; and sixthly, they are biological attributes enabling
digital authentication. The addition of biological attributes, under Section
54, must mandatorily be laid before the Parliament under Section 55. This
is an additional check on the regulation making power of UIDAI;
xix. Under Section 2(k), which defines demographic information, certain
sensitive categories of information such as ‘race, religion, caste, tribe,
ethnicity, language, records of entitlement, income or medical history’ of
56
PART Cthe person are excluded. The term ‘other relevant information’ has to be
construed ejusdem generis and would have to be necessarily
demographic in nature as contrasted with biometric information;
xx. Aadhaar is necessary, as 3% of India’s GDP amounting to trillions of
rupees is allocated by Governments towards subsidies, scholarships,
pensions, education, food and other welfare programmes. But
approximately half of if does not reach the intended beneficiaries.
Aadhaar is necessary for fixing this problem as no other identification
document is widely and commonly possessed by the residents of the
country and most of the other identity documents do not enjoy the quality
of portability;
xxi. The enrolment and authentication processes under the Aadhaar Act are
strongly regulated so that the data is secure;
xxii. The security of the CIDR is also ensured through adequate measures and
safeguards;
xxiii. The Aadhaar Act ensures that UIDAI has control over the requesting
entity during the authentication process;
xxiv. Enrolment Regulations ensure that the requirement of informed consent
of individuals is fulfilled while securing the Aadhaar card in the following
ways:
57
PART Ca. Firstly, the resident is given an opportunity of verifying his or her
information for accuracy before uploading;
b. Secondly, the details and the supporting documents are provided by
the resident, or an introducer (in specific cases);
c. Thirdly, the enrolling agency is obliged to inform the individual about
the manner in which the information shall be used, the nature of
recipients with whom the information is to be shared during
authentication; and the existence of a right to access information, the
procedure for making request for such access and details of the
person/ department to whom a request can be made; and
d. Fourthly, the uploading of information is done in the presence of the
individual.
xxv. When an individual makes a choice to enter into a relational sphere then
his or her choice as to mode of identification would automatically get
restricted on account of the autonomy of the individuals or institution with
whom they wish to relate. This is more so where the individual seeks
employment, service, subsidy or benefits;
xxvi. The Central government has the power to direct the linking of Aadhaar
card, with SIM card, as it is proportional to the object sought to be
achieved in the interest of national security;
58
PART Cxxvii. Regarding the process of authentication and metadata retained under
the Act, it is submitted:
a. The only purpose of the Aadhaar project is authentication and there is
no power under the Act to analyze data;
b. The Aadhaar Act does not involve big data or learning algorithms. It
merely utilizes a matching algorithm for the purpose of authentication;
c. Metadata contemplated is process or technical metadata and does not
reveal anything about the individual. Section 2(d) of the Act defines
“authentication record” to mean the record of the time of
authentication, identity of the RE and the response provided by the
Authority”, and the relevant authentication regulation, Regulation 26,
does not go beyond the scope of Section 2(d) of the Act;
d. Moreover, Regulation 26 and Section 32(3) of the Act prohibit the
Authority from collecting or storing any information about the purpose
of authentication; and
e. Only limited technical metadata is required to be stored in an effort to
exercise control over REs by way of audits.
xxviii. Regarding the security of the Aadhaar data, it is submitted:
a. The provisions of the Information Technology Act, 2000 and the
punitive measures provided there are made applicable to Aadhaar
data under Section 30 of the Aadhaar Act; and
59
PART Cb. Anyone attempting to gain unauthorized access to the CIDR faces
stringent punishment, including imprisonment upto 10 years.
xxix. On the control exercised by the Authority over the Requesting Entities
(RE), the following was urged before the Court:
a. The standard of control exercised by the Authority on the Requesting
Entities is ‘fair and reasonable’ as laid down under Article 21 of the
Constitution;
b. This control includes requirements that the RE’s procure the
fingerprint device from vendors controlled by the Authority, with the
Authority also providing the hardware and software of the device. The
device is subject to quality checks, and must be certified by the
Authority before being used by the RE. The Authority also takes
measures to ensure that data is sent to it in an encrypted form;
c. The license is given to the RE from the Authority only after an audit of
the RE is conducted, and the audit report is approved; and
d. The data collected by these REs is segregated and there exists no
way of aggregating this data. During authentication requests, the full
identity information of the individual will never be transmitted back to
the REs by the Authority as there exists a statutory bar from sharing
Biometric information under Sections 29 (1) (a) and 29(4) of the Act.
60
PART Cxxx. UIDAI has entered into licensing agreements with foreign biometric
solution providers (BSP) for software. Even though the source code of the
software is retained by the BSP as it constitutes their intellectual property,
the data in the server rooms is secure as the software operates
automatically and the biometric data is stored offline. There is no
opportunity available to the BSP to extract data as they have no access
to it;
xxxi. Prior to the enactment of the Aadhaar Act, the Aadhaar project was
governed by the provisions of the Information Technology Act, 2000.
Section 72A of the Information Technology Act, 2000 provides for
punishment for disclosure of information in breach of law or contract;
xxxii. The architecture of the Aadhaar Act does not enable any real possibility,
proximate or remote, of mass surveillance in real time by the State;
xxxiii. The giving of identity information and undergoing authentication has no
direct and inevitable effect on Article 19(1)(a). Alternatively, even if Article
19(1)(a) is attracted, Article 19(2) would protect Section 7 of the Aadhaar
Act as it has a direct and proximate nexus to public order and security of
the State;
xxxiv. In response to the argument that the requirements of Aadhaar number
and authentication for benefits, services and subsidies would be ultra
61
PART Cvires Article 243-G and items 11, 12, 16, 17, 23, 25 and 28 of the XIth
Schedule, it is submitted that the Panchayats get only such powers as
are given to it by the legislature of the State. Article 243-G is merely
enabling. There is no compulsion upon the State to endow the
Panchayats with powers relating to the items specified in the XIth
Schedule;
xxxv. On the validity and purpose of Section 57, it is urged:
a. Section 57 is not an enabling provision. It merely provides, as it states,
that the provisions of the Act would not prevent the use of Aadhaar for
other purposes;
b. However, Section 57 imposes a limitation on any such use for other
purposes, that the use must be sanctioned by any law in force or any
contract;
c. Another limitation is presented by the proviso to Section 57, which
says that the use of the Aadhaar number shall be subject to the
procedure and obligations under Section 8 and Chapter VI, which
would necessarily also subject it to the operation of Chapter VII
(dealing with Offences Penalties) of the Act;
d. Under Section 57, the State, a body corporate or any other person
cannot become Requesting Entities unless the limitations provided for
under Section 57 are complied with;
62
PART C
e. Section 57 imposes limitations, and the use is backed by
authentication, protection of information and punitive measures;
f. The expressions ‘pursuant to any law or any contract’, and ‘to this
effect’- necessarily entail that where the State makes a law or any
body corporate enters into a contract, the law or contract should be
prior in point of time to the making of any application for becoming a
Requesting Entity or a Sub-Authentication User Agency under
Regulation 12 of the Authentication Regulations; and
g. A large number of small service providers simply cannot become
Requesting Entities under Section 57, as they will not meet the
rigorous standard demanded by the eligibility conditions which are
prescribed by the Regulations to become Authentication User
Agencies (AUA)/ KYC User Agencies (KUA). Therefore, this provision
does not create a situation whereby the common man is required to
undergo authentication in all activities.
xxxvi. The Aadhaar Act is not exclusionary but inclusionary since it provides
all citizens the bare necessities for a dignified existence;
xxxvii. Having the option to opt-out is not a constitutional requirement.
Mr Neeraj Kishan Kaul, learned Senior Counsel, made the following
submissions:
63
PART Ci. Aadhaar is a speedy and reliable tool for identification and authentication
and there is no reason to hold it invalid;
ii. Private entities and AUAs/KUAs that have built their businesses around it
should be allowed to use Aadhaar authentication services;
iii. Section 57 is an enabling provision and private players should be given
the choice to use the Aadhaar authentication services as a tool for
verification if there is a consensus between private players’ and their
customers;
iv. Aadhaar authentication has benefited women in villages and migrants and
increased the reach of microfinance institutions, thus reducing predatory
financing; and
v. A statute cannot be struck down on the ground that there is scope for
misuse.
Mr Jayant Bhushan, learned Senior Counsel appearing for the Reserve Bank
of India urged the following submissions before the Court:
i. RBI, in exercise of its powers under the Banking Regulation Act, 1949
and Rule 9 of the PMLA Rules, 2005 issued an amended Master Circular
on April 20, 2018 which mandates that Aadhaar has to be submitted to a
Reporting Entity. This circular conforms with the PMLA rules;
64
PART Cii. Rule 9(14) of the PMLA Rules provides that the Regulator- the RBI in this
case, lay down guidelines incorporating the requirements of sub-rules
9(1)-(13), which would include enhanced or simplified measures to verify
identity; and
iii. The requirement of submission of Aadhaar to the RE is in exercise of this
power under Rule 9(14).
Mr Gopal Sankarnarayanan, learned counsel, has submitted:
i. The Aadhaar Act as a whole does not violate the fundamental right to
privacy;
ii. The factors that save the Aadhaar Act from failing the proportionality test
are (a) Voluntariness to subject one ’s identity information to obtain
the Aadhaar ; (b) Informed consent when such identity information is
utilized; and (c) A draw on the Consolidated Fund of India;
iii. Right to identity is a fundamental right as a part of the right to dignity,
which is being realized by the Aadhaar Act;
iv. The right to identity is also recognized under India’s international
obligations under instruments such as the UDHR and ICCPR;
v. In view of the large scale enrolments that have already taken place and
the expenditure incurred by the Government out of public funds, it would
65
PART Cbe in overarching public interest to give Section 59 full effect. If this were
not done, the only avenue available to the Government would be to
undertake the mammoth enrolment task all over again under a new
regime, affording only a pyrrhic victory to the Petitioners, while there
would be substantial revenue losses to the Government and
deprivation of beneficial schemes to those eligible, in the meanwhile;
vi. Certain provisions of the Aadhaar Act have to be struck down or read
down so that the Act as a whole can continue to serve its essential
purpose - namely Sections 47, Section 8(4) and Section 29(2) of the Act;
and
vii. Section 139AA of the Income Tax Act, 1961 violates Article 14 and 21 of
the Constitution.
Mr Zoheb Hossain, learned Counsel, made the following submissions:
i. The right to privacy cannot be asserted vicariously on behalf of others in
a representative capacity in a Public Interest Litigation, because unlike
other constitutional rights, right to privacy is a personal right. No Section 7
beneficiary has claimed a violation of their right to privacy despite the
pendency of the petitions for 6 years before this Court and therefore, the
Petitioners' challenge, in a representative capacity, to section 7 on the
66
PART Cground of a violation of the right to privacy of third parties is not
maintainable;
ii. There is no increased threat to privacy due to Aadhaar at the level of
requesting entities (RE) for the following reasons:
a. REs are already in possession of personal information of individuals
and inclusion of Aadhaar does not in any manner increase the threat
to privacy;
b. Any information disclosed by REs will not be on account of Aadhaar
and will have to be dealt with under domain specific legislations, or a
data protection regime or agreements between the REs and their
customers; and
c. REs have data of their own customers and not of other REs’
customers, so there is no possibility of surveillance.
iii. Safeguards against disclosure of information in the Aadhaar Act are
superior to the safeguards laid down in the PUCL case51. Sections 8, 28
and 29 along with Chapter VII which deals with Offences and Penalties,
provide for protection of information and Section 33 lays down a strict
procedure for disclosure. Even though the Aadhaar Act is not required to
meet the same standard as laid down in PUCL, the safeguards in the Act
are not only adequate with regard to identity information and
authentication records, but far exceed the safeguards laid down PUCL;
51 (2011) 14 SCC 331
67
PART Civ. The petitioners cannot contend that Section 33(2) of the Aadhaar Act
goes against the principles of natural justice and is disproportionate (as it
does not define the term “national security”) for the following reasons:
a. What is in the interest of “national security” is not a question of law but
that of policy lying in the executive domain; and
b. Principles of natural justice cannot be observed strictly in a situation
implicating national security. In such cases, it is the duty of the court to
read into and provide for statutory exclusion.
v. The laws, which are under challenge, are a part of a concerted scheme to
promote redistributive justice and ensure substantive equality, in
furtherance of Articles 14, 38, 39B and 39C. These laws ensure a more
transparent and a cleaner system, root out revenue leakages and evasion
of taxes, thereby giving genuine beneficiaries their rightful share in
subsidies;
vi. The object of the Aadhaar Act, contrary to what the petitioners have
argued, is totally unrelated to suppression of freedom of speech and any
incidental effect, if at all, would not implicate the right under Article
19(1)(a);
vii. The petitioners cannot contend that Section 47 of the Aadhaar Act is
arbitrary or unreasonable for the following reasons:
68
PART Ca. The offences and penalties under the Act are intended to maintain the
purity of data of the Aadhaar number holder and the integrity of the
CIDR, which are integral in achieving the object of the Act;
b. Enrolment, storage of data in CIDR, and authentications are so vast
and inherently technical that any breach of the provisions, can be
effectively dealt with by the UIDAI;
c. The individual has not been left remediless, as he/she can make a
complaint to the UIDAI directly or through the grievance redressal
centre [Regulation 32 of the Aadhaar (Enrolment and Update)
Regulations, 2016]. After a complaint has been made, the UIDAI
would be obliged to examine the complaint and accordingly lodge a
complaint in a Court in terms of Section 47 of the Aadhaar Act;
d. Section 56 of the Aadhaar Act makes it clear that application of other
laws, like the IT Act, is not barred.
viii. Aadhaar must be made mandatory under Section 7 of the Aadhaar Act for
the following reasons:
a. Because of the involvement of biometrics, it is almost impossible for
one person to obtain two Aadhaar numbers. This will help in checking
the entry of fake and duplicate beneficiaries into any welfare scheme;
b. Other methods which were employed over the last 70 years to check
duplication, siphoning of money in welfare schemes, large-scale tax
evasion, generation of black money, and appearance and re-
69
PART Cappearance of duplicates, have turned out to be futile. If Aadhaar is
made voluntary, the same problems are likely to creep back into the
system; and
c. The State is bound to deploy the best technology available to it to
ensure proper allocation of resources as there is a constitutional
mandate upon the State under Article 14 to efficiently utilize its
resources.
ix. There is no conflict between the Aadhaar Act and the Income Tax Act as
they are both stand alone laws and their scope of operation is different;
x. Through the Aadhaar Act, the State is furthering the following obligations
under Part III and Part IV of the Constitution and international obligations:
a. The State has a positive obligation for securing socio-economic rights
like the basic right to food, shelter and livelihood of people arising out
of Article 21, even though it is worded negatively;
b. The Supreme Court has observed that civil political rights and socio-
economic rights in India are placed on the same pedestal [PUCL].
Aadhaar is a means of achieving the latter set of rights. The
proportionality analysis would therefore require a balancing of rights in
this context;
70
PART Cc. Articles 38, 39(b), (c), (e), (f), 41, 43, 47 and 51(c) impose a
constitutional mandate on the State to ensure effective and efficient
utilization of public resources;
d. The State is the trustee of public resources towards people, and
inaction of the State to plug the continuous leakage of public
resources and revenues would violate both, the principle of non-
arbitrariness and reasonableness envisaged by Article 14 as well as
the constitutional doctrine of public trust; and
e. The creation of Aadhaar infrastructure and enactment of the Aadhaar
Act is a step towards the government pursuing India’s international
obligations under the ICESCR.
xi. While testing proportionality, reasonableness of a restriction has to be
determined in an objective manner from the standpoint of the interests of
the general public and not from the perspective of an individual right
bearer claiming invasion52; and
xii. With regard to the alleged conflict between Section 29(2) of the Aadhaar
Act and Section 4(b)(xii) of the RTI Act, the former cannot be struck down
as unconstitutional for the following reasons:
52 Modern Dental College and Research Centre v State of Madhya Pradesh, (2016) 7 SCC 353.
71
PART Da. A provision can be struck down only if it is in violation of the
Constitution or if the legislature lacks competence, not on the ground
that it is in conflict with another law;
b. In any case, the obligations of public authorities under both these
provisions are different, as the public authority under the RTI Act can
publish the details of beneficiaries from the existing database and the
information received by the UIDAI is not required to be shared or
displayed publicly. However, if any information is displayed publicly, it
can be challenged by an aggrieved person on the ground of privacy
which would be completely unrelated to the present challenge;
c. The two laws operate in their distinct fields and there is no conflict
between them; and
d. A conflict between two statutes is required to be reconciled through
harmonious construction. However, since there is no conflict between
these two laws, there is no need for harmonious construction.
D Architecture of Aadhaar: analysis of the legal framework
39 The architecture of the Aadhaar Act envisages the creation of a unique
identity for residents on the basis of demographic and biometric information.
The Act envisages a process of identification by which the unique identity
72
PART Dassigned to each individual is verified with the demographic and biometric
information pertaining to that individual which is stored in a centralised
repository of data known as the Central Identities Data Repository (CIDR). The
former part of the legislative design is implemented by its regulatory provisions
governing enrolment53 of individuals who would be allotted a unique identity
number. The latter part of the legislative design consists of the process of
‘authentication’.
40 In order to facilitate an understanding of the key aspects of the law,
Section 2 provides a dictionary of meanings. ‘Aadhaar number’ is defined in
Section 2(a) as the identification number issued to the individual under sub-
section (3) of Section 3. The individual to whom an Aadhaar number is issued
is described in Section 2(b) as the ‘Aadhaar number holder’. The expression
‘authentication’ is defined in Section 2(c) thus:
“(c) “Authentication” means the process by which the
Aadhaar number alongwith demographic information or
biometric information of an individual is submitted to the
Central Identities Data Repository for its verification and such
Repository verifies the correctness or lack thereof, on basis of
information available with it.”Section 2(d) speaks of the ‘authentication record’ as the record of the time of
authentication, the identity of the requesting entity and the response provided
by UIDAI. The crucial definitions are those of ‘biometric information’, ‘core
53 Section 2(m) states: “enrolment” means the process, as may be specified by regulations, to collect
demographic and biometric information from individuals by the enrolling agencies for the purpose of issuing
Aadhaar numbers to such individuals under this Act.73
PART D
biometric information’, ‘demographic information’ and ‘identity information’.
These are as follows:
“(g) “biometric information” means photograph, finger print,
Iris scan, or other such biological attributes of an individual as
may be specified by regulations;...
(j) “core biometric information” means finger print, Iris scan, or
such other biological attribute of an individual as may be
specified by regulations;(k) “demographic information” includes information relating to
the name, date of birth, address and other relevant
information of an individual, as may be specified by
regulations for the purpose of issuing an Aadhaar number,
but shall not include race, religion, caste, tribe, ethnicity,
language, records of entitlement, income or medical history....
(n) “identity information” in respect of an individual, includes
his Aadhaar number, his biometric information and his
demographic information.”The largest subset of the above definitions consists of ‘identity information’
which is defined in an inclusive sense to comprehend the Aadhaar number,
biometric information and demographic information. Demographic information
is defined as information related to the name, date of birth and address and
other information pertaining to an individual as is specified by the regulations.
Significantly, Section 2(k) excludes, by a mandate, race, religion, caste, tribe,
ethnicity, language, records of entitlement, income or medical history from the
purview of demographic information. Biometric information consists, under
Section 2(g), of the photograph, fingerprint, Iris scan, or other such biological
attributes of an individual as may be specified by regulations. Core biometric
information in Section 2(j) excludes photographs (which form part of biometric
74
PART Dinformation). Apart from photographs, other biometric information is
comprehended within core biometric information and may be expanded to
include other biological attributes specified in the regulations to be made
under the Act.
41 The identity information of an individual is stored in a central depository.
Section 2(h) defines “Central Identities Data Repository” as a centralised
database in one or more locations containing all Aadhaar numbers issued to
Aadhaar number holders along with the corresponding demographic
information and biometric information of such individuals and other related
information. The CIDR is the backbone of the Aadhaar Act. All the information
collected or created under the Act is stored in it. For the establishment and
maintenance of the CIDR, it has been provided54 under the Act that UIDAI may
engage one or more entities, which can also perform any other functions as
may be specified by regulations. The Act does not prohibit the engagement of
private entities for the establishment and maintenance of the CIDR.
42 Section 3, pertains to the entitlement to obtain an ‘Aadhaar Number’,
which forms a part of Chapter II titled ‘enrolment’. Section 3 comprises of
three parts: (i) an entitlement of every resident to obtain an Aadhaar number;
(ii) a requirement of submitting demographic and biometric information to be
enrolled; and (iii) a process of undergoing enrolment. Section 3 provides thus:
54 Section 10, Aadhaar Act
75
PART D“Section (3): Aadhaar Number.-
(1) Every resident shall be entitled to obtain an Aadhaar
number by submitting his demographic information
and biometric information by undergoing the process
of enrolment:Provided that the Central Government may, from time
to time, notify such other category of individuals who
may be entitled to obtain an Aadhaar number.(2) The enrolling agency shall, at the time of enrolment,
inform the individual undergoing enrolment of the
following details in such manner as maybe specified
by regulations, namely:-(a) The manner in which the information shall be
used;(b) The nature of recipients with whom the information
is intended to be shared during authentication; and(c) The existence of a right to access information, the
procedure for making requests for such access
and details of the person or department in-charge
to whom such requests can be made.(3) On receipt of the demographic information and
biometric information under sub-section (1), the
Authority shall, after verifying the information, in such
manner as may be specified by regulations, issue an
Aadhaar number to such individual.”Significantly, sub-section (1) of Section 3 recognises an entitlement, of every
resident55 to obtain an Aadhaar number. An entitlement postulates a right. A
right contemplates a liberty, for it is in the exercise of the liberty that the
individual asserts a right. What is a matter of an entitlement is evidently a
matter of option and not a compulsion. That constitutes the fundamental
postulate of Section 3. However, the entitlement to obtain the Aadhaar
55 Section 2(v) states: “resident” means an individual who has resided in India for a period or periods amounting
in all to one hundred and eighty-two days or more in the twelve months immediately preceding the date of
application for enrolment76
PART Dnumber is conditioned by the requirement of submitting demographic and
biometric information and participating in the process of enrolment.
43 The collection of demographic and biometric information is carried out
by an enrolling agency. “Enrolling agency” has been defined under Section
2(l) of the Act as an agency, appointed by UIDAI or a Registrar56, for collecting
demographic and biometric information of individuals under the Act. The
enrolling agency need not be an entity of the state. The definition opens the
space for engagement of private entities in the collection of individual
information for the process of enrolment. The enrolling agencies have to set
up enrolment centers and they have to function in accordance with the
procedure specified by UIDAI.57 Sub-section (2) of Section 3 requires the
enrolling agency to disclose to the individual, who is undergoing enrolment,
three important facets. The first is the manner in which the information which
is disclosed by the individual would be used. The second relates to the nature
of the recipients with whom the information is likely to be shared during the
course of authentication. The third is founded upon the individual’s right of
access to the information disclosed. All these three facets are crucial to the
legislative design because they try to place individual autonomy at the
forefront of the process. An individual who discloses biometric and
demographic information has a statutory entitlement to fully understand how
the information which is disclosed is going to be used and with whom the
56 Section 2(s) states: “Registrar” means any entity authorised or recognised by the Authority for the purpose of
enrolling individuals under this Act
57 Regulation 7, Aadhaar (Enrolment and Update) Regulations, 201677
PART Dinformation is likely to be shared during authentication.58 Access of the
information supplied to the individual, it has been argued, is an integral feature
of the design created by the statute. These three facets are conditions
precedent to the disclosure of information by the individual. Before the
individual does so, he or she must have a full disclosure which would enable
them to form an informed decision on the exercise of the choice which
underlies an entitlement to an Aadhaar number. The entitlement which is
recognised by sub-section (1) is enforced by the mandatory requirements of
sub-section (2). Before an Aadhaar number is issued, sub-section (3)
requires the authority to verify the information disclosed, in the manner
prescribed by regulations. The Act leaves it to regulations to specify how
verification will be carried out.
44 Sections 4, 5 and 6 indicate the characteristics which are attributed to
Aadhaar numbers, legislative recognition of the steps necessary to ensure
financial inclusion and the requirement of periodical updation of information.
Under Section 4, three important features attach to the possession of an
Aadhaar number. The first is that the number is unique to one individual and
to that individual alone. Once assigned, the Aadhaar number cannot be
reassigned to any other individual. The second feature is that an Aadhaar
number is random and bears no relation to the attributes or identity of its
holder. The third feature of Section 4 is that once assigned, an Aadhaar
number can be accepted as proof of identify of its holder “for any purpose”.
58 Section 3(2), Aadhaar Act.78
PART DUnder Section 5, UIDAI is under a mandate to adopt special measures to
issue Aadhaar numbers to women, children, senior citizens, the differently
abled, unskilled and unorganised workers, nomadic tribes, persons who do
not have permanent places of abode and to other categories which may be
defined by the regulations. Section 6 contains an enabling provision by which
the authority may require holders to update their demographic and biometric
information periodically, as specified under regulations. An Aadhaar number
also does not, by itself, constitute a conferment of a right of citizenship, or
domicile (Section 9).
45 Chapter III provides for Authentication. By virtue of Section 7, an
enabling provision has been made by which the Union or state governments
may require proof of an Aadhaar number for receiving subsidies, benefits and
services for which the expenditure is incurred from (or the receipts form part
of) the Consolidated Fund of India. Section 7 is in the following terms:
“7. Proof of Aadhaar number necessary for receipt of certain
subsidies, benefits and services, etc.- The Central
Government or, as the case may be, the State Government
may, for the 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 Aadhaar number or in the case of an
individual to whom no Aadhaar number has been assigned,
such individual makes an application for enrolment:Provided that if an Aadhaar 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.”79
PART DSection 3 (as explained earlier) postulates an entitlement to an Aadhaar
number. An entitlement envisages a right which may (or may not) be
exercised by the resident. An entitlement is, after all, an option. Section 7,
however, contemplates a requirement. It covers subsidies, benefits or
services that are charged to the Consolidated Fund of India; the connect being
either in regard to the source of expenditure or the receipts. The statutory
definitions of the expressions ‘benefit’, ‘service’ and ‘subsidy’ are contained in
clauses (f),(w) and (x) of Section 2 which provide as follows:
“(f) “benefit” means any advantage, gift, reward, relief, or
payment, in cash or kind, provided to an individual or a group
of individuals and includes such other benefits as may be
notified by the Central Government;”(w) “service” means any provision, facility, utility or any other
assistance provided in any form to an individual or a group of
individuals and includes such other services as may be
notified by the Central Government;(x) “subsidy” means any form of aid, support, grant,
subvention, or appropriation, in cash or kind, to an individual
or a group of individuals and includes such other subsidies as
may be notified by the Central Government.”46 Section 7 encapsulates a purpose, a condition and a requirement. The
purpose incorporated in the provision is to establish the identity of an
individual. The condition which it embodies is for the receipt of a subsidy,
benefit or service for which the expenditure is incurred or the receipts form
part of the Consolidated Fund of India. Where the purpose and condition are
fulfilled, the central or state governments may require that the individual
should (i) undergo authentication; or (ii) furnish proof of possession of an
Aadhaar number; or (iii) provide proof of an application for enrolment where
80
PART Dthe Aadhaar number has not been assigned. Three alternatives are stipulated
in Section 7. Where the purpose and condition (noted above) are fulfilled, the
individual has to undergo authentication. Alternately, the individual has to
furnish proof that he or she possesses an Aadhaar number. However, if an
Aadhaar number has not been assigned to the individual, he or she would
have to make an application for enrolment. In a situation where no Aadhaar
number has been assigned as yet, the proviso stipulates that alternate and
viable means of identification would be provided to the individual for the
delivery of subsidies, benefits or services. Section 7 indicates that while the
central or state governments can mandate that an individual must undergo
authentication as a condition for the receipt of a subsidy, benefit or service, a
failure of authentication cannot be held out as a ground to deny benefits,
subsidies or services. That is for the reason that in the absence of
authentication, possession of an Aadhaar number would suffice. Moreover,
even if an individual does not possess an Aadhaar number, the mandate of
Section 7 would be subserved by producing an application for enrolment.
Section 3 which speaks of an entitlement to obtain an Aadhaar number stands
in contrast to Section 7 under which an Aadhaar number may be required as a
condition for the receipt of a subsidy, benefit or service. As an entitlement,
Section 3 makes the possession of an Aadhaar number optional. Section 7 is
an enabling power by which the central or state governments may make the
requirement of an Aadhaar number compulsive or mandatory where a person
81
PART Ddesires a subsidy, benefit or service for which expenditure is incurred from or
the receipt of which forms part of the Consolidated Fund of India. Section 7
acts as an overriding provision over Section 3.
47 The manner in which an authentication is carried out is elaborated upon
by Section 8. Section 8 is in the following terms:
“Authentication of Aadhaar number.-
(1) The Authority shall perform authentication of the
Aadhaar number of an Aadhaar number holder submitted by
any requesting entity, in relation to his biometric information
or demographic information, subject to such conditions and
on payment of such fees and in such manner as may be
specified by regulations.(2) A requesting entity shall –
(a) unless otherwise provided in this Act, obtainthe consent of an individual before collecting his identity
information for the purposes of authentication in such
manner as may be specified by regulations; and(b) ensure that the identity information of an
individual is only used for submission to the Central
Identities Data Repository for authentication.(3) A requesting entity shall inform, in such manner as
may be specified by regulations, the individual submitting his
identify information for authentication, the following details
with respect to authentication, namely:-(a) the nature of information that may be shared
upon authentication;(b) the uses to which the information received
during authentication may be put by the requesting
entity; and(c) alternatives to submission of identity
information to the requesting entity.(4) The Authority shall respond to an authentication query
with a positive, negative or any other appropriate response
sharing such identity information excluding any core biometric
information.”As we have noticed earlier, authentication involves a process in which the
Aadhaar number, together with the demographic or biometric information, is
82
PART Dsubmitted to the CIDR for verification and is verified to be correct or otherwise
by the repository on the basis of the information available with it. Under sub-
section (1) of Section 8 authentication has to be performed on a request
submitted by a requesting entity. The expression ‘requesting entity’ is defined
in Section 2(u) as follows:
“(u) “requesting entity” means an agency or person that
submits the Aadhaar number, and demographic information
or biometric information, of an individual to the Central
Identities Data Repository for authentication.”This definition also does not prohibit the engagement of private agencies for
the process of authentication. Under sub-section (2) of Section 8, every
requesting entity is bound to obtain the consent of the individual before
collecting his or her identity information for the purpose of authentication.
Moreover, the requesting entity must ensure that the identity information is
submitted only for the purpose of authentication to the CIDR. Before the
requesting entity submits the identity information for authentication, it is under
a mandate of law to disclose (i) the nature of the information that may be
shared upon authentication; (ii) the use to which information received during
authentication may be put; and (iii) alternatives to the submission of identity
information.59 During the course of authentication, UIDAI is required to
respond to an authentication query with a positive, negative or appropriate
response sharing such identity information excluding core biometric
information.60 Core biometric information cannot be shared. The modes of
59 Section 8(3), Aadhaar Act
60 Section 8(4), Aadhaar Act83
PART Dauthentication are as mentioned in Regulation 4 of the Aadhaar
(Authentication) Regulations 2016. It can be based on (i) demographic
information; (ii) a one-time password with limited time validity; (iii) biometrics
or (iv) multi-factor authentication (a combination of two or more of the above).
The Requesting Agency chooses the mode according to its requirement.
48 UIDAI is the umbrella entity under the Aadhaar Act. The statutory
backing to the authority of UIDAI to undertake the responsibility for the
processes of enrolment and authentication and maintenance of CIDR has
been provided under Chapter IV of the Act. Section 11 provides that the
Central Government shall, by notification, establish UIDAI, a body corporate 61,
to be responsible for the processes of enrolment and authentication and
perform such other functions as are assigned to it under the Act. The
composition of UIDAI has been provided under Section 12: a Chairperson
(appointed on part-time or full-time basis); two part-time Members, and the
chief executive officer who shall be the Member- Secretary, to be appointed
by the Central Government. Section 23 enunciates the powers and functions
of the UIDAI. Sub-section (1) of Section 23 requires UIDAI to develop the
policy, procedure and systems for issuing Aadhaar numbers to individuals and
to perform authentication. Section 23(2) provides an inclusive list of the
powers and functions of UIDAI:
“(2) Without prejudice to sub-section (1), the powers and
functions of the Authority, inter alia, include—61 Section 11(2), Aadhaar Act
84
PART D(a) specifying, by regulations, demographic information and
biometric information required for enrolment and the
processes for collection and verification thereof;(b) collecting demographic information and biometric
information from any individual seeking an Aadhaar number
in such manner as may be specified by regulations;(c) appointing of one or more entities to operate the Central
Identities Data Repository;(d) generating and assigning Aadhaar numbers to individuals;
(e) performing authentication of Aadhaar numbers;
(f) maintaining and updating the information of individuals in
the Central Identities Data Repository in such manner as may
be specified by regulations;(g) omitting and deactivating of an Aadhaar number and
information relating thereto in such manner as may be
specified by regulations;(h) specifying the manner of use of Aadhaar numbers for the
purposes of providing or availing of various subsidies,
benefits, services and other purposes for which Aadhaar
numbers may be used;(i) specifying, by regulations, the terms and conditions for
appointment of Registrars, enrolling agencies and service
providers and revocation of appointments thereof;(j) establishing, operating and maintaining of the Central
Identities Data Repository;(k) sharing, in such manner as may be specified by
regulations, the information of Aadhaar number holders,
subject to the provisions of this Act;(l) calling for information and records, conducting inspections,
inquiries and audit of the operations for the purposes of this
Act of the Central Identities Data Repository, Registrars,
enrolling agencies and other agencies appointed under this
Act;(m) specifying, by regulations, various processes relating to
data management, security protocols and other technology
safeguards under this Act;(n) specifying, by regulations, the conditions and procedures
for issuance of new Aadhaar number to existing Aadhaar
number holder;(o) levying and collecting the fees or authorising the
Registrars, enrolling agencies or other service providers to85
PART Dcollect such fees for the services provided by them under this
Act in such manner as may be specified by regulations;(p) appointing such committees as may be necessary to
assist the Authority in discharge of its functions for the
purposes of this Act;(q) promoting research and development for advancement in
biometrics and related areas, including usage of Aadhaar
numbers through appropriate mechanisms;(r) evolving of, and specifying, by regulations, policies and
practices for Registrars, enrolling agencies and other service
providers;(s) setting up facilitation centres and grievance redressal
mechanism for redressal of grievances of individuals,
Registrars, enrolling agencies and other service providers;(t) such other powers and functions as may be prescribed.”
Under Section 54, UIDAI is empowered to make regulations and rules
consistent with the Act, for carrying out the provisions of the Act. Sub-section
(2) of Section 54 provides that UIDAI may make regulations covering any of
the following matters:
“(a) the biometric information under clause (g) and the
demographic information under clause (k), and the process of
collecting demographic information and biometric information
from the individuals by enrolling agencies under clause (m) of
section 2;(b) the manner of verifying the demographic information and
biometric information for issue of Aadhaar number under sub-
section (3) of section 3;(c) the conditions for accepting an Aadhaar number as proof
of identity of the Aadhaar number holder under sub-section
(3) of section 4;(d) the other categories of individuals under section 5 for
whom the Authority shall take special measures for allotment
of Aadhaar number;(e) the manner of updating biometric information and
demographic information under section 6;(f) the procedure for authentication of the Aadhaar number
under section 8;86
PART D
(g) the other functions to be performed by the Central
Identities Data Repository under section 10;(h) the time and places of meetings of the Authority and the
procedure for transaction of business to be followed by it,
including the quorum, under sub-section (1) of section 19;(i) the salary and allowances payable to, and other terms and
conditions of service of, the chief executive officer, officers
and other employees of the Authority under sub-section (2) of
section 21;(j) the demographic information and biometric information
under clause (a) and the manner of their collection under
clause (b) of sub-section (2) of section 23;(k) the manner of maintaining and updating the information of
individuals in the Central Identities Data Repository under
clause (f) of sub-section (2) of section 23;(l) the manner of omitting and deactivating an Aadhaar
number and information relating thereto under clause (g) of
sub-section (2) of section 23;(m) the manner of use of Aadhaar numbers for the purposes
of providing or availing of various subsidies, benefits, services
and other purposes for which Aadhaar numbers may be used
under clause (h) of sub-section (2) of section 23;(n) the terms and conditions for appointment of Registrars,
enrolling agencies and other service providers and the
revocation of appointments thereof under clause (i) of sub-
section (2) of section 23;(o) the manner of sharing information of Aadhaar number
holder under clause (k) of sub-section (2) of section 23;(p) various processes relating to data management, security
protocol and other technology safeguards under clause (m) of
sub-section (2) of section 23;(q) the procedure for issuance of new Aadhaar number to
existing Aadhaar number holder under clause (n) of sub-
section (2) of section 23;(r) manner of authorising Registrars, enrolling agencies or
other service providers to collect such fees for services
provided by them under clause (o) of sub-section (2) of
section 23;(s) policies and practices to be followed by the Registrar,
enrolling agencies and other service providers under clause(r) of sub-section (2) of section 23;
87
PART D(t) the manner of accessing the identity information by the
Aadhaar number holder under the proviso to sub-section (5)
of section 28;(u) the manner of sharing the identity information, other than
core biometric information, collected or created under this Act
under sub-section (2) of section 29;(v) the manner of alteration of demographic information under
sub-section (1) and biometric information under sub-section
(2) of section 31;(w) the manner of and the time for maintaining the request for
authentication and the response thereon under sub-section
(1), and the manner of obtaining, by the Aadhaar number
holder, the authentication records under sub-section (2) of
section 32;(x) any other matter which is required to be, or may be,
specified, or in respect of which provision is to be or may be
made by regulations.”Section 11(1), read with Sections 23(2) and 54(2), indicates that UIDAI is the
sole authority vested with the power and responsibility of carrying out
numerous functions. These functions include:
(i) collection of demographic information and biometric information from
individuals;
(ii) generating and assigning Aadhaar numbers to individuals;
(iii) performing authentication of Aadhaar numbers;
(iv) maintaining and updating the information of individuals in the CIDR;
(v) omitting and deactivating of an Aadhaar number;
(vi) specifying the manner of use of Aadhaar numbers for the purposes of
providing or availing of various subsidies, benefits, services and other
purposes;
88
PART D(vii) specifying the terms and conditions for appointment of Registrars,
enrolling agencies and service providers and revocation of appointments;
(viii) specifying various processes relating to data management, security
protocols and other technological safeguards under the Act;
(ix) setting up facilitation centres and mechanisms for the redressal of the
grievances of individuals, Registrars, enrolling agencies and other service
providers; and
(x) other functions prescribed by the Central government.
The Act does not set any limits within which the sole authority of UIDAI may
operate. UIDAI has been conferred with discretionary powers as provided in
the above provisions. The architecture of Aadhaar keeps UIDAI at the centre
of all processes.
49 For the purpose of performing the functions of collecting, storing,
securing, processing of information, delivery of Aadhaar numbers to
individuals or performing authentication, clause (a) of Section 23(3)
contemplates that UIDAI may enter into Memoranda of Understanding or
agreements with the central or state governments, Union territories or other
agencies. In discharging its functions, UIDAI may appoint, by notification, a
number of Registrars, engage and authorise such agencies to collect, store,
secure and process information or perform authentication or such other
functions in relation to it, as may be necessary for the purposes of the Act
89
PART D(Section 23 (3) (b)). For the efficient discharge of its functions, UIDAI may also
engage consultants, advisors and other persons as may be required (Section
23(4)). These, like many other provisions, open the scope for the involvement
of private entities in the Aadhaar project. This is also evident from Section 57
of the Act, which allows the use of the Aadhaar number, by the state,
corporate entities or persons to establish the identity of an individual:
“57. Act not to prevent use of Aadhaar number for other
purposes under law.-Nothing contained in this Act shall prevent the use of Aadhaar
number for establishing the identity of an individual for any
purpose, whether by the State or any body corporate or
person, pursuant to any law, for the time being in force, or
any contract to this effect:Provided that the use of Aadhaar number under this section
shall be subject to the procedure and obligations under
section 8 and Chapter VI.”50 The responsibility to ensure the security of identity information and
authentication records of individuals has been placed on UIDAI. 62 UIDAI is
also required to ensure confidentiality of identity information and authentication
records of individuals,63 except in circumstances, where disclosure of
information is permitted by the Act.64 Section 28(3) requires UIDAI to take all
necessary measures to ensure that the information in its possession or control,
including information stored in the CIDR, is secured and protected against
access, use or disclosure not permitted under the Act or regulations, and
against accidental or intentional destruction, loss or damage. For the purpose
62 Section 28(1), Aadhaar Act
63 Section 28(2), Aadhaar Act
64 Section 33, Aadhaar Act90
PART Dof maintaining the security and confidentiality of the information of individuals,
UIDAI is also required, under Section 28(4), to:
“(a) adopt and implement appropriate technical and
organisational security measures;(b) ensure that the agencies, consultants, advisors or other
persons appointed or engaged for performing any function of
the Authority under this Act, have in place appropriate
technical and organisational security measures for the
information; and(c) ensure that the agreements or arrangements entered into
with such agencies, consultants, advisors or other persons,
impose obligations equivalent to those imposed on the
Authority under this Act, and require such agencies,
consultants, advisors and other persons to act only on
instructions from the Authority.”Except where it has otherwise been provided in the Aadhaar Act, a burden is
placed (under Section 28(5)) upon UIDAI, its officers, other employees
(whether during service or thereafter), and any agency that maintains the
CIDR not to reveal any information stored or the authentication record to
anyone. An Aadhaar number holder, however, may request UIDAI to provide
access to identity information excluding core biometric information in the
manner as may be specified by regulations (proviso to Section 28(5)).
Section 29 puts restrictions on sharing of information, collected or created
under the Act. Sub-section (1) of Section 29 provides that:
“(1) No core biometric information, collected or created under
this Act, shall be—(a) shared with anyone for any reason whatsoever; or
(b) used for any purpose other than generation of Aadhaar
numbers and authentication under this Act.”91
PART DSub-section (2) contemplates that the identity information, other than core
biometric information, collected or created under the Act may be shared only in
accordance with the provisions of the Act and in the manner as may be
specified by regulations.
A burden is placed, under Section 29(3), upon a requesting entity to ensure
that any identity information available with it, is neither used for any purpose,
other than that specified to the individual at the time of submitting identity
information for authentication; nor disclosed further, except with the prior
consent of the individual to whom such information relates.
Sub-section (4) prohibits publishing, display or posting publicly of any Aadhaar
number or core biometric information collected or created under the Act in
respect of an Aadhaar number holder, except for such purposes as may be
specified by the regulations. Section 30 contemplates that the biometric
information collected and stored in an electronic form is to be deemed
“sensitive personal data or information”. The provision specifically relates to
biometric information. The provision dilutes the protection that should be given
to demographic information. Further, a statutory duty has been placed upon
UIDAI to maintain authentication records in the manner and for a time period
prescribed by regulations.65 The issue of maintenance of authentication
records by UIDAI has been contentious and is dealt in a subsequent section
titled “Proportionality”. A statutory right is provided to every Aadhaar number
65 Section 32(1), Aadhaar Act
92
PART Dholder to obtain his authentication record in the manner specified by
regulations.66 Section 32(3) prohibits UIDAI (either by itself or through any
entity under its control) to collect, keep or maintain any information about the
purpose of authentication.
51 The Aadhaar Act allows disclosure of individual information in limited
circumstances. The manner and purpose for which information of individuals,
including identity information or authentication records, can be disclosed has
been provided under Section 33 of the Act. Section 33 states:
“(1) Nothing contained in sub-section (2) or sub-section (5) of
section 28 or sub-section (2) of section 29 shall apply in
respect of any disclosure of information, including identity
information or authentication records, made pursuant to an
order of a court not inferior to that of a District Judge:Provided that no order by the court under this sub-section
shall be made without giving an opportunity of hearing to the
Authority.(2) Nothing contained in sub-section (2) or sub-section (5) of
section 28 and clause (b) of sub-section (1), sub-section (2)
or sub-section (3) of section 29 shall apply in respect of any
disclosure of information, including identity information or
authentication records, made in the interest of national
security in pursuance of a direction of an officer not below the
rank of Joint Secretary to the Government of India specially
authorised in this behalf by an order of the Central
Government:Provided that every direction issued under this sub-section,
shall be reviewed by an Oversight Committee consisting of
the Cabinet Secretary and the Secretaries to the Government
of India in the Department of Legal Affairs and the
Department of Electronics and Information Technology,
before it takes effect:Provided further that any direction issued under this sub-
section shall be valid for a period of three months from the
66 Section 32(2), Aadhaar Act
93
PART Ddate of its issue, which may be extended for a further period
of three months after the review by the Oversight Committee.”The Aadhaar Act provides two categories: a “court order” and “in the interest of
national security”, where the personal information of an individual can be
disclosed.
Under Section 31, in case any demographic information or biometric
information of an Aadhaar number holder is found to be incorrect, is lost or
changes subsequently, the Aadhaar number holder is required to request
UIDAI to make an alteration in his or her record in the CIDR in the manner
specified by regulations. On receipt of a request for alteration of demographic
or biometric information, UIDAI is vested with the power, subject to its
satisfaction, to make alterations as required in the record relating to the
Aadhaar number holder and to intimate the alteration to the holder. Sub-
section (4) of Section 31 prohibits alteration of any identity information in the
CIDR except in the manner provided in the Act or regulations made in this
behalf.
52 Chapter VII provides offences and penalties. Under Section 34, a
penalty has been provided for impersonation at the time of enrolment. Section
35 creates a penalty for impersonation of the Aadhaar number holder by
changing demographic or biometric information. Section 37 provides a penalty
94
PART Dfor disclosing identity information (which was collected in the course of
enrolment or authentication).
Under Section 38, a penalty for unauthorised access to the CIDR has been
provided. Section 38 provides thus:
“Whoever, not being authorised by the Authority,
intentionally,—(a) accesses or secures access to the Central Identities Data
Repository;(b) downloads, copies or extracts any data from the Central
Identities Data Repository or stored in any removable storage
medium;(c) introduces or causes to be introduced any virus or other
computer contaminant in the Central Identities Data
Repository;(d) damages or causes to be damaged the data in the Central
Identities Data Repository;(e) disrupts or causes disruption of the access to the Central
Identities Data Repository;(f) denies or causes a denial of access to any person who is
authorised to access the Central Identities Data Repository;(g) reveals any information in contravention of sub-section (5)
of section 28, or shares, uses or displays information in
contravention of section 29 or assists any person in any of the
aforementioned acts;(h) destroys, deletes or alters any information stored in any
removable storage media or in the Central Identities Data
Repository or diminishes its value or utility or affects it
injuriously by any means; or(i) steals, conceals, destroys or alters or causes any person
to steal, conceal, destroy or alter any computer source code
used by the Authority with an intention to cause damage,shall be punishable with imprisonment for a term which may
extend to three years and shall also be liable to a fine which
shall not be less than ten lakh rupees.”95
PART DSection 39 imposes a penalty for tampering with data in the CIDR. Sections 40
and 41 impose penalties on requesting and enrolment agencies in case they
act in contravention of the obligations imposed upon them under the Act.
Section 42 provides for a general penalty for an offence under the Act or the
rules or regulations made thereunder, for which no specific penalty is provided
under the Act. Under Section 43, when an offence has been committed by a
company, every person who at the time the offence was committed was in
charge of, and was responsible to the company for the conduct of the business
of the company, as well as the company, shall be deemed to be guilty of the
offence and shall be liable to be proceeded against and punished accordingly.
Section 44 indicates that the provisions of the Act would apply to any offence
or contravention committed outside India by any person, irrespective of
nationality. The power to investigate offences under the Act has been placed,
under Section 45, on a police officer not below the rank of Inspector of Police.
Section 47(1) of the Act puts a bar on the courts from taking cognizance of any
offence punishable under the Act, except when a complaint is made by UIDAI
or any officer or person authorised by it. The provision indicates that the scope
of cognizance is limited. It does not allow an individual who finds that there is
any violation under the Act, to initiate criminal proceedings. The scope of
grievance redressal under the Act is restrictive and works only on the action of
UIDAI or a person authorised by it. UIDAI has set up a grievance redressal
mechanism as contemplated by Section 23(2)(s) of the Aadhaar Act. There is
96
PART Dno grievance redressal mechanism if any breach or offence is committed by
UIDAI itself. The right of an individual to seek remedy under the Act if his/her
rights are violated will be discussed subsequently. Under sub-Section (2), no
court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial
Magistrate can try any offence punishable under the Act.
Section 48 empowers the Central Government to supersede UIDAI, in certain
situations. Under Section 50, UIDAI, in exercise of its powers or performance
of its functions under the Act, shall be bound by the written directions on
questions of policy of the Central Government. Section 51 vests power in
UIDAI to delegate to any member, officer or any other person, its powers and
functions under the Act (except the power under section 54) as it may deem
necessary. Section 51 grants a wide discretion to the UIDAI to delegate any of
its powers and functions.
Section 55 requires every rule and regulation made under the Aadhaar Act to
be laid down before each House of Parliament. The Section states:
“55. Laying of rules and regulations before Parliament.-
Every rule and every regulation made under this Act shall be
laid, as soon as may be after it is made, before each House
of Parliament, while it is in session, for a total period of thirty
days which may be comprised in one session or in two or
more successive sessions, and if, before the expiry of the
session immediately following the session or the successive
sessions aforesaid, both Houses agree in making any
modification in the rule or regulation, or both the Houses
agree that the rule or regulation should not be made, the rule
or regulation shall thereafter have effect only in such modified
form or be of no effect, as the case may be; so, however, that97
PART Eany such modification or annulment shall be without prejudice
to the validity of anything previously done under that rule or
regulation.”UIDAI needs to place the regulations framed by it before Parliament.
53 The architecture of Aadhaar is integral to the exercise of analyzing the
reasonableness of the entire project. Whether the architecture addresses the
concerns raised by the petitioners is an essential component of this exercise.
The architecture of Aadhaar must pass the constitutional requirements of
reasonableness and proportionality. This aspect will be dealt under the
heading of “proportionality” in a subsequent part of this judgment.
E Passage of Aadhaar Act as a Money Bill54 The petitioners challenge the constitutionality of the Aadhaar Act,
contending that it could not have been passed as a Money Bill. According to
the submission, the Aadhaar Act did not qualify as a Money Bill under Article
110 of the Constitution, and it legislates on matters which fall outside that
provision. The Attorney General for India submitted that the Constitution
accords finality to the decision of the Speaker as to whether a Bill is a Money
Bill and hence the question whether the Aadhaar Act fulfils the requirements
of being categorized as Money Bill is not open to judicial review. The Attorney
General also urged that the Aadhaar Act does fall under Article 110.
Article 110 provides thus:
98
PART E“(1) For the purposes of this Chapter, a Bill shall be deemed
to be a Money Bill if it contains only provisions dealing with all
or any of the following matters, namely:—(a) the imposition, abolition, remission, alteration or regulation
of any tax;(b) the regulation of the borrowing of money or the giving of
any guarantee by the Government of India, or the amendment
of the law with respect to any financial obligations undertaken
or to be undertaken by the Government of India;(c) the custody of the Consolidated Fund or the Contingency
Fund of India, the payment of moneys into or the withdrawal
of moneys from any such Fund;(d) the appropriation of moneys out of the Consolidated Fund
of India;(e) the declaring of any expenditure to be expenditure
charged on the Consolidated Fund of India or the increasing
of the amount of any such expenditure;(f) the receipt of money on account of the Consolidated Fund
of India or the public account of India or the custody or issue
of such money or the audit of the accounts of the Union or of
a State; or(g) any matter incidental to any of the matters specified in
sub-clauses (a) to (f).(2) A Bill shall not be deemed to be a Money Bill by reason
only that it provides for the imposition of fines or other
pecuniary penalties, or for the demand or payment of fees for
licences or fees for services rendered, or by reason that it
provides for the imposition, abolition, remission, alteration or
regulation of any tax by any local authority or body for local
purposes.(3) If any question arises whether a Bill is a Money Bill or not,
the decision of the Speaker of the House of the People
thereon shall be final.(4) There shall be endorsed on every Money Bill when it is
transmitted to the Council of States under article 109, and
when it is presented to the President for assent under article
111, the certificate of the Speaker of the House of the People
signed by him that it is a Money Bill.”55 The key questions before this Court are:
(i) Whether under Article 110(3), the decision of the Speaker of the Lok
Sabha, that a Bill is a Money Bill, is immune from judicial review;
99
PART E(ii) If the answer to (i) is in the negative, whether the Aadhaar Act is a Money
Bill under Article 110(1) of the Constitution; and
(iii) If the Bill to enact the Aadhaar Act was not a Money Bill, whether a
declaration of unconstitutionality will result from its legislative passage as
a Money Bill in the Lok Sabha.
E.I Judicial Review of the Speaker’s Decision
56 Article 109 provides for a special procedure in respect of Money Bills. It
provides that a Money Bill shall not be introduced in the Council of States, the
Rajya Sabha. After a Money Bill is introduced in the Lok Sabha and passed by
it, the Bill has to be transmitted to the Rajya Sabha for its recommendations.
Article 110(4) provides that when a ‘Money Bill’ is transmitted from the Lower
House to the Upper House, it must be endorsed with a certificate by the
Speaker of the Lower House that it is a Money Bill. From the date of the
receipt of the Money Bill, the Rajya Sabha is bound to return the Bill to the Lok
Sabha, within a period of fourteen days, with its recommendations. The Lok
Sabha has the discretion to “either accept or reject all or any of the
recommendations” made by the Rajya Sabha.67 If the Lok Sabha accepts any
of the recommendations of the Rajya Sabha, the Money Bill is deemed to
have been passed by both Houses of the Parliament “with the amendments
recommended” by the Rajya Sabha and accepted by the Lok Sabha.68
67 Article 109(2), The Constitution of India
68 Article 109(3), The Constitution of India100
PART EHowever, when the Lok Sabha “does not accept any of the recommendations”
of the Rajya Sabha, the Money Bill is said to have been passed by both
Houses in the form in which it was originally passed by the Lok Sabha.69 If a
Money Bill after being passed by the Lok Sabha and transmitted to the Rajya
Sabha for its recommendations is not returned to the Lok Sabha within a
period of fourteen days, it is then deemed to have been passed by both the
Houses of the Parliament in the form in which it was originally passed by the
Lok Sabha.70 When a Money Bill has been passed by the Houses of the
Parliament, Article 111 requires it to be presented to the President along with
the Lok Sabha Speaker’s certificate for assent71. Article 117(1) also provides
that a Bill “making provision for any of the matters specified in sub-clauses (a)
to (f) of clause (1) of article 110” shall also not be introduced in the Rajya
Sabha.
57 The Constitution contains corresponding provisions for Money Bills
introduced in and passed by a state legislative assembly. Article 198 provides
a special procedure for Money Bills in the state legislative assembly. Article
199(3) provides for the finality of the decision of the Speaker of the Legislative
Assembly. Under Article 200, when a Money Bill has been passed by the
State Legislature, it is to be presented to the Governor, along with the
Speaker’s certificate, for assent.72
69 Article 109(4), The Constitution of India
70 Article 109(5), The Constitution of India
71 Article 110(4), The Constitution of India
72 Article 199(4), The Constitution of India101
PART EArticle 107 contains provisions for the introduction and passing of Bills in
general and provides thus:
“(1) Subject to the provisions of articles 109 and 117 with
respect to Money Bills and other financial Bills, a Bill may
originate in either House of Parliament.
(2) Subject to the provisions of articles 108 and 109, a Bill
shall not be deemed to have been passed by the Houses
of Parliament unless it has been agreed to by both
Houses, either without amendment or with such
amendments only as are agreed to by both Houses.
(3) A Bill pending in Parliament shall not lapse by reason of
the prorogation of the Houses.(4) A Bill pending in the Council of States which has not been
passed by the House of the People shall not lapse on a
dissolution of the House of the People.(5) A Bill which is pending in the House of the People, or
which having been passed by the House of the People is
pending in the Council of States, shall, subject to the
provisions of article 108, lapse on a dissolution of the House
of the People.”58 Ordinary bills can be passed only when they are agreed to by both
Houses. Amendments suggested by one House have to be agreed upon by
both the Houses for the bill to be passed. Both Houses of Parliament have a
vital role assigned by the Constitution in the passage of ordinary bills.
Deviating from the important role which it assigns to the Rajya Sabha in the
passage of legislation, the Constitution carves out a limited role for the Rajya
Sabha in the passage of Money Bills.
59 The Constitution confers special powers on the Speaker of the Lok
Sabha in the passage of a Money Bill. Ordinary bills (other than Money Bills)
can originate in either House of Parliament. They can be scrutinised, debated
in and amended in both the Houses of Parliament during the course of
102
PART Epassage. A Bill is not regarded as being passed by Parliament until both the
Houses agree to its passage without amendments or with the amendments as
proposed. A constitutional discretion is conferred on the Speaker of the Lok
Sabha to decide whether a Bill is a Money Bill. When the Speaker of the Lok
Sabha declares a Bill to be a Money Bill, the Rajya Sabha is left only with the
option to make recommendations to the Bill within the deadline of fourteen
days. Being only recommendations, they do not bind the Lok Sabha. They
may either be accepted or rejected by the Lok Sabha.
60 The Rajya Sabha is a constitutional body in a bicameral legislature. The
makers of the Constitution adopted bicameralism from Britain. The origin of
the limited role that the Upper House has in the passing of a Money Bill can
be traced to the British Parliament Act, 1911, which will be discussed in a
subsequent part of this analysis. The draftspersons of the Constitution were
conscious of the impact of a misuse of institutional power. They provided for a
detailed blue print of the architecture of constitutional governance. It is
necessary to understand our constitutional history in order to comprehend the
scope of the finality attributed to the Speaker’s decision on whether or not a
Bill is a Money Bill.
61 The origins of the procedure of passing Money Bills in the United
Kingdom are older than the Parliament Act of 1911. The authoritative
103
PART Etreatise73, by Thomas Erskine May, on the law, privileges, proceedings and
usage of Parliament in Britain dwells on the history of the evolution of the
relationship between the House of Commons and the House of Lords with
regard to their powers of taxation and in relation to national revenue and
public expenditure.74
A grant imposed by the House of Commons would become law in effect, only
after the assent of the House of Lords and of the Queen.75 While the House of
Commons enjoyed the legal right to originate grants for nearly 300 years, the
House of Lords was originally not precluded from amending a Bill. But in
167176 and 167877 respectively, the Commons passed two resolutions to
curtail the powers of the House of Lords so that only the Commons had the
sole right to direct or limit the scope of a Bill regarding taxation and
government expenditure. The House of Lords was excluded from altering any
such Bill.
The exclusion of the Lords was so strictly followed that the Commons even
denied to the former, the power of authorising the taking of fees, imposing
73 Thomas Erskine May, A treatise on the law, privileges, proceedings and usage of Parliament, Ninth Edition
(1883)
74
Ibid, at pages 637-638. It notes: “At length, when the Commons had increased in political influence, and the
subsidies voted by them had become the principal source of national revenue, they gradually assumed their
present position in regard to taxation and supply, and included the Lords as well as themselves in their grants.
So far back as 1407, it was stated by King Henry IV, in the ordinance called “The Indemnity of the Lords and
Commons”, that grants were “granted by the Commons, and assented to by the Lords”.”
75 Ibid, at page 638
76 Ibid, at page 641. The Resolution stated: “That in all aids given to the king by the Commons, the rate or taxought not to be altered”.
77 Ibid. The Resolution stated: “That all aids and supplies, and aids to his Majesty in Parliament, are the sole gift
of the Commons ; and all bills for the granting of any such aids and supplies ought to begin with the Commons
: and that it is the undoubted and sole right of the Commons to direct, limit, and appoint in such bills the ends,
purposes, considerations, conditions, limitations, and qualifications of such grants ; which ought not to be
changed or altered by the House of Lords.”104
PART Epecuniary penalties or of varying the mode of suing for them, or of applying
them when recovered, though such provisions were necessary to give effect
to the general enactments of a Bill.78 Since this strict enforcement was found
to be “attended with unnecessary inconvenience”, it led to the adopting of a
Standing Order in 1849 which accommodated space to the House of Lords for
suggesting amendments on legislative issues.79 However, the constitutional
skirmishes continued. They eventually led to the passage of the Parliament
Act of 1911, which essentially deprived the House of Lords of the right to
reject Money Bills.
62 The Parliament Act 1911 was explicitly aimed at “regulating the
relations between the two Houses of Parliament”80. The Preamble of the Act
indicates that it was enacted for “restricting the existing powers of the House
of Lords”81. Section 1(1) provides for the power of the House of Lords on
Money Bills:
“If a Money Bill, having been passed by the House of
Commons, and sent up to the House of Lords at least one
month before the end of the session, is not passed by the
House of Lords without amendment within one month after it
is so sent up to that House, the Bill shall, unless the House of
Commons direct to the contrary, be present to His Majesty
and become an Act of Parliament on the Royal Assent being
signified, notwithstanding that the House of Lords have not
consented to the Bill.”“Money Bill” was defined statutorily for the first time. Section 1(2) provided:
78 Ibid, at pages 642-643
79 Ibid, pages 646-647
80 Preamble of the Parliament Act 1911
81 Ibid105
PART E“A Money Bill means a Public Bill which in the opinion of the
Speaker of the House of Commons contains only provisions
dealing with all or any of the following subjects, namely, the
imposition, repeal, remission, alteration, or regulation of
taxation; the imposition for the payment of debt or other
financial purposes of charges on the Consolidated Fund, [the
National Loans Fund] or on money provided by Parliament, or
the variation or repeal of any such charges; supply; the
appropriation, receipt, custody, issue or audit of accounts of
public money; the raising or guarantee of any loan or the
repayment thereof; or subordinate matters incidental to those
subjects or any of them. In this subsection the expressions
“taxation”, “public money”, and “loan” respectively do not
include any taxation, money, or loan raised by local
authorities or bodies for local purposes.”The use of the expression “means” in the definition of a Money Bill indicates it
was exhaustively defined. A Bill would be a Money Bill, if the Speaker of the
House of Commons opined that it contains “only” certain specific provisions.
Under Section 1(3), when a Money Bill is sent up to the House of Lords and to
Her Majesty for assent, it should be endorsed by a certificate of the Speaker
of the House of Commons that it is a Money Bill. This sub-section also
provides that before giving his certificate, the Speaker may consult “two
members to be appointed from the Chairman’s Panel at the beginning of each
Session by the Committee of Selection”. Therefore, the Speaker has to certify
any bill which in his or her opinion falls within the definition of a Money Bill.
Any bill containing provisions outside the definition would not be certified as a
Money Bill. The Speaker does not certify a Bill until it has reached the form in
which it will leave the House of Commons, that is, at the end of its Commons
106
PART Estage. The Speaker can only decide whether or not to certify a Bill once it has
passed the House.82
Section 3 of the 1911 Act provides finality to the certificate issued by the
Speaker and renders it immune from judicial review. According to it:
“Any certificate of the Speaker of the House of Commons
given under this Act shall be conclusive for all purposes,
and shall not be questioned in any court of law.”
(Emphasis supplied)The Act provides finality to the decision of the Speaker of the House of
Commons. By using the phrase “shall not be questioned in any court of law”,
the Act grants immunity to the Speaker’s decision from judicial review.
The statutory concept of a ‘Money Bill’ and the Speaker’s certification of a Bill
as a ‘Money Bill’ introduced by the Parliament Act, 1911 ultimately found its
way into the Constitution of India, but with significant modifications.
63 In India, the categorization of Money Bills can be said to have begun
from the Commonwealth of India Bill 1925, which was drafted by a National
Convention comprised of 250 members, with Tej Bahadur Sapru as its
Chairman. Article 36 of the Commonwealth Bill provided:
“36. (a) Any Bill which appropriates revenue or moneys for
the ordinary annual services of the Government shall deal
only with such appropriation.82 House of Lords, Select Committee on the Constitution, Money Bills and Commons Financial Privilege (2011),
available at https://publications.parliament.uk/pa/ld201011/ldselect/ldconst/97/97.pdf107
PART E(b) Bills imposing taxation· shall deal only with the imposition
of taxes, and any provision therein dealing with any other
matter shall be of no effect.(c) Bills for the appropriation of revenues or moneys or
imposing taxation shall be introduced only by a member of
the Cabinet, and can only originate in the Legislative
Assembly.”The Bill neither provided a definition of a Money Bill nor did it discuss the role
of the Speaker of the Assembly of elected representatives.
In its Madras session of December 1927, the Indian National Congress, as a
response to the setting up of the Simon Commission (which did not have any
Indian members) decided to set up an All Parties’ Conference to draft a
Constitution for India. With Motilal Nehru as the Chairman of the Committee
constituted by the All Parties’ Conference, a Report was prepared. Article 17
of the Nehru Report provided a definition of a Money Bill:
“17. A money bill means a bill which contains only provisions
dealing with all or any of the following subjects, namely the
imposition, repeal, remission, alteration or regulation of
taxation; the imposition, for the payment of debt or other
financial purposes, of charges on public revenues or monies,
or the variation or repeal of any such charges; the supply,
appropriation, receipt, custody, issue or audit of accounts of
public money; the raising of any loan or the repayment
thereof; or subordinate matters incidental to those subjects or
any of them. In this definition the expression “taxation”,
“public money” and “loan” respectively do not include any
taxation, money or loan raised by local authorities or bodies
for local purposes.”The definition of a Money Bill in the Nehru Report, was drawn from the
Parliament Act, 1911 in Britain. Article 18 of the Report provided that the
“question whether a bill is or is not a money bill will be decided by the
108
PART Epresident of the House of Representatives”. The House of Representatives
(the Lower House) was provided the final authority to either accept or reject
the recommendations made by the Senate (the Upper House). Article 19 of
the Report provided thus:
“A money bill passed by the House of Representatives shall
be sent to the Senate for its recommendations and it shall be
returned not later than… days therefrom to the House of
Representatives, which may pass it, accepting or rejecting all
or any of the recommendations of the Senate; and the bill so
passed shall be deemed to have been passed by both
chambers.”While the Constituent Assembly of India was in session, the Socialist Party of
India came up with a “Draft Constitution of the Republic of India”, based on its
ideologies. Article 147 of its Draft Constitution provided:
“147. (1) A Bill making provision-
(a) for imposing, abolishing, remitting, altering or regulating
any tax ; or(b) for regulating the borrowing of money, or giving any
guarantee by the Government, or for amending the law with
respect to any financial obligations undertaken or to be
undertaken by the Government; or(c) for declaring any expenditure to be expenditure charged
on the public revenues, or for increasing the amount of any
such expenditure
shall be deemed as a money Bill and shall not be introduced
or moved except on the recommendation of the Government.
(2) A Bill or amendment shall not be deemed to make
provision for any of the purposes aforesaid by reason only
that it provides for the Imposition of fines or other pecuniary
penalties, or for the demand and payment of fees for licenses
or fees for services rendered, or by reason that it provides for
the imposition, abolition, remission, alteration, or regulation of
tax by any local authority or body for local purposes.(3) In case of dispute whether a Bill is a money Bill or not, the
decision of the Speaker, or in his absence of the Deputy
Speaker, shall be final.”109
PART EThe Draft Constitution of the Socialist Party conferred a discretion on the
Speaker of the Lower House, and in his absence, on the Deputy Speaker, to
decide whether a Bill is a Money Bill.
64 There was another model present before the makers of the Indian
Constitution. British India was governed by the provisions of the Government
of India Act, 1935, which provided for two Houses of Parliament − the Council
of States (Upper House) and Federal Assembly (Lower House). Section 37 of
the Government of India Act 1935 made special provisions for financial bills:
“37.-(1) A Bill or amendment making provision- (a) for
imposing or increasing any tax; or (b) for regulating the
borrowing of money or the giving of any guarantee by the
Federal Government, or for amending the law with respect to
any financial obligations undertaken or to be undertaken by
the Federal Government ; or (c) for declaring any expenditure
to be expenditure charged on the revenues of the Federation,
or for increasing the amount of any such expenditure, shall
not be introduced or moved except on the recommendation of
the Governor-General, and a Bill making such provision shall
not be introduced in the Council of State.”Under the 1935 Act, there was no provision for a Speaker’s certificate
regarding a Financial Bill. Section 38(1) authorized each House to make rules
regulating its procedure and for the conduct of its business, subject to the
provisions of the Act.
A Financial Bill could be introduced only “on the recommendation of the
Governor-General”. Section 41 provided a general immunity from judicial
review on the “ground of any alleged irregularity of procedure”:
110
PART E“41(1). The validity of any proceedings in the Federal
Legislature shall not be called in question on the ground of
any alleged irregularity of procedure.(2) No officer or other member of the Legislature in whom
powers are vested by or under this Act for regulating
procedure or the conduct of business, or for maintaining
order, in the Legislature shall be subject to the jurisdiction of
any court in respect of the exercise by him of those powers.”The Constituent Assembly evidently had these legislative precedents relating
to Money Bills which it would have considered while formulating its drafts.
65 While the proceedings of the Constituent Assembly were in motion, Sir
B N Rau, as its constitutional advisor, prepared a memorandum of the Draft
Constitution for the Union Constitution Committee. It envisaged a Parliament
of the Union consisting of the President and two Houses—the Senate and the
House of Representatives.83 One of the proposals discussed in the meetings
of the Union Constitution Committee was that “Money Bills would originate in
the House of the People and the power of the other House would be limited to
making suggestions for amendment, which the House of the People could
accept or reject”.84 B Shiva Rao has recorded what transpired during the
course of the proceedings of the Constituent Assembly:
“The Draft also included provisions regarding legislative
procedure, procedure in financial matters and general
procedure for the conduct of business. No Bill could be
submitted for the President’s assent unless it had been
passed in identical form by both Houses. Except in the case
of Money Bills, both Houses enjoyed equal powers; and
difference between the two Houses were to be settled by a
majority vote in a joint sitting of both Houses convened by the
President… Money Bills were defined in the Draft as83 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at
page 420
84 Ibid111
PART Ecomprising Bills proposing the imposition or increase of any
tax, regulating the borrowing of money by the Government of
India or the giving of financial guarantees, or declaring any
item of expenditure as ‘‘charged” on the revenues, i.e. placing
it outside the vote of the House of the People. The general
principle approved by the Constituent Assembly was that
financial control over the executive would' be - exercised by
the House of the People. Accordingly the Draft provided that
Money Bills could originate only in that House. The powers of
the Council of States in the case of Money Bills were
restricted to making suggestions for amendment. If these
suggestions were, not accepted by the House of the People,
or if the Council of States did not return a Bill within thirty
days with its suggestions for amendment, the Bill would be
‘deemed to have been' passed by both Houses in the form in
which it was passed' by the House of the People” and
submitted to the President for his assent’.”8566 The draft prepared by the Constitutional Advisor provided a definition of
a Money Bill, which was inspired by Section 37 of the Government of India
Act 1935, Section 53 of the Commonwealth of Australia Constitution Act
190086 and Article 22 of the Constitution of Ireland 1937.87 Article 75 of this
draft of the Constitution provided that “if any question arises whether a Bill is a
‘money bill’ or not, the decision of the Speaker of the House of the People
thereon shall be final.”88 Neither Section 37 of the Government of India Act
1935 nor Section 53 of the Commonwealth of Australia Constitution Act 1900
85 Ibid, at pages 427-428
86 The said provision provides: “Powers of the Houses in respect of legislation.Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a
proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its
containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand
or payment or appropriation of fees for licences, or fees for services under the proposed law. The Senate may
not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the
ordinary annual services of the Government. The Senate may not amend any proposed law so as to increase
any proposed charge or burden on the people. The Senate may at any stage return to the House of
Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or
amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any
of such omissions or amendments, with or without modifications. Except as provided in this section, the Senate
shall have equal power with the House of Representatives in respect of all proposed laws.”
87 B Shiva Rao, The Framing of India’s Constitution: Selected Documents, Indian Institution of PublicAdministration (2012), at page 32, as quoted in Pratik Datta, Shefali Malhotra Shivangi Tyagi, Judicial
Review and Money Bills, NUJS Law Review (2017)
88 Ibid112
PART Ehas a similar provision which accords legal finality to the decision of the
Speaker. The draft provision was similar to Article 22 of the Constitution of
Ireland 1937, which provides:
“1. The Chairman of Dáil Éireann89 shall certify any Bill
which, in his opinion, is a Money Bill to be a Money Bill,
and his certificate shall, subject to the subsequent
provisions of this section, be final and conclusive.2. Seanad Éireann90, by a resolution, passed at a sitting at
which not less than thirty members are present, may request
the President to refer the question whether the Bill is or is not
a Money Bill to a Committee of Privileges.3. If the President after consultation with the Council of State
decides to accede to the request he shall appoint a
Committee of Privileges consisting of an equal number of
members of Dáil Éireann and of Seanad Éireann and a
Chairman who shall be a Judge of the Supreme Court: these
appointments shall be made after consultation with the
Council of State. In the case of an equality of votes but not
otherwise the Chairman shall be entitled to vote.4. The President shall refer the question to the Committee of
Privileges so appointed and the Committee shall report its
decision thereon to the President within twenty-one days after
the day on which the Bill was sent to Seanad Éireann.5. The decision of the Committee shall be final and
conclusive.6. If the President after consultation with the Council of State
decides not to accede to the request of Seanad Éireann, or if
the Committee of Privileges fails to report within the time
hereinbefore specified the certificate of the Chairman of Dáil
Éireann shall stand confirmed.” (Emphasis supplied)67 The draft prepared by the Advisor to the Constituent Assembly did not
adopt the above provision in its entirety. It adopted the part on the finality of
the certification of the Speaker on whether a Bill is a Money Bill. The Irish
model of dispute resolution, which provided for a mechanism to review the
Speaker’s certification, was not adopted.
89 Lower House in Ireland
90 Upper House in Ireland113
PART ESubsequently, in its report submitted to the President of the Constituent
Assembly on 5 December 1947, the Expert Committee on Financial
Provisions suggested an amendment to the draft provision, to the effect that:
“When a Money Bill is sent from the Lower House to the
Upper, a certificate of the Speaker of the Lower House saying
that it is a Money Bill should be attached to, or endorsed on,
the bill and a provision to that effect should be made in the
Constitution on the lines of the corresponding provision in the
Parliament Act, 1911. This will prevent controversies
about the matter outside the Lower House.”91 (Emphasis
supplied)Certification of any Bill by the Speaker of the Lower House as a Money Bill,
was envisaged for procedural simplicity to avoid causing confusion in the
Upper House of Parliament.
68 The final provision which has assumed the form of Article 110 of the
Constitution, does not contain the exact language used in the Act of 1911.
The 1911 Act of the British Parliament consciously excluded judicial review of
the certificate of the Speaker of the House of Commons. The intention of the
British Parliament is clear from the specific language used in Section 3 of the
Act. Section 3 accords finality to the decision of the Speaker by providing that
any certificate of the Speaker of the House of Commons “shall be conclusive
for all purposes, and shall not be questioned in any court of law”. The
certification of the Speaker is both conclusive and immune from judicial
review. The framers of the Indian Constitution did not adopt this language.
91 B Shiva Rao, The Framing of India’s Constitution: Selected Documents, Indian Institution of Public
Administration, at page 281114
PART ERather, they chose to adopt the phrase “shall be final”. The phrase used in the
Act of 1911 expressly excluded courts from exercising their power of judicial
review over the decision of the Speaker of the House of Commons. This
language was used in the 1911 Act to put an end to the constitutional
skirmishes experienced by the House of Lords and the House of Commons in
Britain for more than five hundred years, leading to the enactment of the 1911
Act.92 The deviation from incorporating the language, used in the 1911 Act,
into the Indian Constitution is reflective of the intention of our Constitution
makers that they did not want to confer the same status on the power
assigned to the Speaker of the Lok Sabha, as is provided to the Speaker of
the House of Commons. Had their intention been otherwise, they would have
used the same language as that provided under the 1911 Act. Finality would
operate as between the Houses of Parliament. It did not exclude judicial
review by a constitutional Court.
69 The British legal system adopts the principle of parliamentary
sovereignty. That is not so in India. Ours is a system founded on the
supremacy of the Constitution. Judicial review is an essential component of
constitutional supremacy. A Constitution Bench of this Court in Kalpana
Mehta v Union of India93 has, while noticing this distinction, held:
“…The fundamental difference between the two systems lies
in the fact that parliamentary sovereignty in the Westminster
form of government in the UK has given way, in the Indian
Constitution, to constitutional supremacy. Constitutional92 Pratik Datta, Shefali Malhotra Shivangi Tyagi, Judicial Review and Money Bills, NUJS Law Review (2017)
93 (2018) 7 SCC 1115
PART Esupremacy mandates that every institution of governance is
subject to the norms embodied in the constitutional text. The
Constitution does not allow for the existence of absolute
power in the institutions which it creates. Judicial review as a
part of the basic features of the Constitution is intended to
ensure that every institution acts within its bounds and
limits.”9470 The purpose of judicial review is to ensure that constitutional principles
prevail in interpretation and governance. Institutions created by the
Constitution are subject to its norms. No constitutional institution wields
absolute power. No immunity has been attached to the certificate of the
Speaker of the Lok Sabha from judicial review, for this reason. The
Constitution makers have envisaged a role for the judiciary as the expounder
of the Constitution. The provisions relating to the judiciary, particularly those
regarding the power of judicial review, were framed, as Granville Austin
observed, with “idealism”95. Courts of the country are expected to function as
guardians of the Constitution and its values. Constitutional courts have been
entrusted with the duty to scrutinize the exercise of power by public
functionaries under the Constitution. No individual holding an institutional
office created by the Constitution can act contrary to constitutional
parameters. Judicial review protects the principles and the spirit of the
Constitution. Judicial review is intended as a check against arbitrary conduct
of individuals holding constitutional posts. It holds public functionaries
accountable to constitutional duties. If our Constitution has to survive the
vicissitudes of political aggrandisement and to face up to the prevailing
94 Ibid, at para 227
95 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page 205116
PART Ecynicism about all constitutional institutions, notions of power and authority
must give way to duties and compliance with the rule of law. Constitutional
institutions cannot be seen as focal points for the accumulation of power and
privilege. They are held in trust by all those who occupy them for the moment.
The impermanence of power is a sombre reflection for those who occupy
constitutional offices. The Constitution does not contemplate a debasement of
the institutions which it creates. The office of the Speaker of the House of
People, can be no exception. The decision of the Speaker of the Lok Sabha in
certifying a Bill as a Money Bill is liable to be tested upon the touchstone of its
compliance with constitutional principles. Nor can such a decision of the
Speaker take leave of constitutional morality.
71 Our Constitution does not provide absolute power to any institution. It
sets the limits for each institution. Our constitutional scheme envisages a
system of checks and balances. The power of the Speaker of the Lok Sabha,
to decide whether a Bill is a Money Bill, cannot be untrammelled. The
contention that the decision of Speaker is immune from judicial review and
cannot be questioned, is contrary to the entire scheme of the Constitution,
which is premised on transparency, non-arbitrariness and fairness. The
phrase “shall be final” used in Article 110(3) has been adopted, as mentioned
earlier, from Article 22 of the Irish Constitution. The provisions of Article 22 of
the Irish Constitution provide a mechanism for review of the certificate issued
by the Speaker. Recourse is provided under the Irish Constitution by which
117
PART Ethe members of the Upper House of the Irish Parliament can request the
President of Ireland to refer the question of whether a Bill is a Money Bill, to a
Committee of Privileges. If the President refers the question to this
Committee, the decision of the Committee stands “final and conclusive”. The
members of the Constituent Assembly did not adopt this mechanism. Absence
of this mechanism does not mean that the decision of the Speaker of the Lok
Sabha cannot be subject to checks and balances, of which judicial review is
an indispensable facet. The Speaker has to act within the domain, which the
Constitution accords to the office of the Speaker. The power conferred on the
Speaker of the Lok Sabha cannot be exercised arbitrarily, for it could damage
the scheme of the Constitution. Judicial review is the ultimate remedy to
ensure that the Speaker does not act beyond constitutional entrustment.
72 The scope of the phrase “shall be final” can also be understood by
looking at the proceedings of the Constituent Assembly. The constitutional
foundation of Article 110(4) is based upon a suggestion of the Expert
Committee on Financial Provisions that when a Money Bill is transmitted from
the Lower House to the Upper House, it should be endorsed by the Speaker’s
certificate, so as to prevent any controversy “about the matter outside the
Lower House”. Therefore, the finality provided to the decision of the Speaker
as to whether a Bill is a Money Bill or not, is aimed at avoiding any
controversy on the issue in the Rajya Sabha and before the President. Had it
been intended to prevent the court from adjudicating upon the validity of the
118
PART Edecision of the Speaker, the language of the Article would have made it
explicit. Where a constitutional provision evinces a specific intent to exclude
judicial review, clear words to that effect are used. Articles 243O(a) 96,
243ZG(a)97 and 329(a) specifically use the phrase − “shall not be called in
question in any court”. For instance, Article 329(a) provides thus:
“Notwithstanding anything in this Constitution —
(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such
constituencies, made or purporting to be made under article
327 or article 328, shall not be called in question in any
court.” (Emphasis supplied)73 In N P Ponnuswami v Returning Officer, Namakkal Constituency,
Namakkal, Salem District98, a six judge Bench of this Court, while construing
the provisions of Article 329, compared it to the preceding Articles, and held
thus:
“5…A notable difference in the language used in articles 327
and 328 on the one hand, and article 329 on the other, is that
while the first two articles begin with the words “subject to the
provisions of this Constitution”, the last article begins with the
words “notwithstanding anything in this Constitution”. It was
conceded at the Bar that the effect of this difference in
language is that whereas any law made by Parliament under
article 327, or by the State Legislature under article 328,
cannot exclude the jurisdiction of the High Court under article
226 of the Constitution, that jurisdiction is excluded in regard
to matters provided for in article 329.”9996 Article 243O(a), which is a part of the chapter on Panchayats, provides: “Notwithstanding anything in this
Constitution,— (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats
to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any
court.”
97 Article 243ZG(a), which is a part of the chapter on Municipalities, provides: “Notwithstanding anything in thisConstitution,— (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats
to such constituencies, made or purporting to be made under article 243ZA shall not be called in question in
any court.”
98 1952 SCR 218
99 Ibid, at para 5119
PART E74 In order to understand the scope of the finality attached to the
Speaker’s decision under Article 110(3), it would be useful to analyse how in
the case of other constitutional provisions, the words “shall be final” have been
interpreted by this Court. Articles 217(3)100, 311(3)101 and paragraph 6(1) of
the Tenth Schedule102 contain the phrase “shall be final”. In Union of India v
Jyoti Prakash Mitter103, this Court held that it can examine the legality of an
order passed by the President on the determination of the age of a Judge of
the High Court under Article 217 (3) of the Constitution. The six judge Bench
held:
“32…The President acting under Article 217(3) performs a
judicial function of grave importance under the scheme of our
Constitution. He cannot act on the advice of his Ministers.Notwithstanding the declared finality of the order of the
President the Court has jurisdiction in appropriate cases to
set aside the order, if it appears that it was passed on
collateral considerations or the rules of natural justice were
not observed, or that the President's judgment was coloured
by the advice or representation made by the executive or it
was founded on no evidence…Appreciation of evidence is
entirely left to the President and it is not for the Courts to hold
that on the evidence placed before the President on which the
conclusion is founded, if they were called upon to decide the
case they would have reached some other conclusion.”104The President was held to perform a judicial function in making a
determination under Article 217(3).
100 Article 217 (3) states: “If any question arises as to the age of a Judge of a High Court, the question shall be
decided by the President after consultation with the Chief Justice of India and the decision of the President
shall be final.”
101 Article 311(3) states: “If, in respect of any such person as aforesaid, a question arises whether it is reasonablypracticable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered
to dismiss or remove such person or to reduce him in rank shall be final.”
102 Paragraph 6(1) states “If any question arises as to whether a member of a House has become subject todisqualification under this Schedule, the question shall be referred for the decision of the Chairman, or, as the
case may be, the Speaker of such House and his decision shall be final:
Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House
has become subject to such disqualification, the question shall be referred for the decision of such member of
the House as the House may elect in this behalf and his decision shall be final.”
103 (1971) 1 SCC 396
104 Ibid, at page 397120
PART EThe question of finality under Article 311(3) was dealt with by a Constitution
Bench of this Court in Union of India v Tulsiram Patel105. The Court held that
the finality given to the decision of the disciplinary authority by Article 311(3)
that it is not reasonably practicable to hold an enquiry, is not binding upon the
Court so far as its power of judicial review is concerned.
The constitutional validity of the provisions contained in the Tenth Schedule to
the Constitution came up for consideration before a Constitution Bench of this
Court in Kihoto Hollohan v Zachillhu106. The Constitution Bench held that
the power vested in the Speaker or the Chairman under the Schedule, is a
judicial power, and was amenable to judicial review:
“111…That Paragraph 6(1) of the Tenth Schedule, to the
extent it seeks to impart finality to the decision of the
Speakers/Chairmen is valid. But the concept of statutory
finality embodied in Paragraph 6(1) does not detract from
or abrogate judicial review under Articles 136, 226 and
227 of the Constitution in so far as infirmities based on
violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity,
are concerned.”107 (Emphasis supplied)The Bench had also clarified that:
“101…The principle that is applied by the courts is that in
spite of a finality clause it is open to the court to examine
whether the action of the authority under challenge is ultra
vires the powers conferred on the said authority. Such an
action can be ultra vires for the reason that it is in
contravention of a mandatory provision of the law conferring
on the authority the power to take such an action. It will also
be ultra vires the powers conferred on the authority if it is105 (1985) 3 SCC 398
106 (1992) Supp (2) SCC 651
107 Ibid, at page 711121
PART Evitiated by mala fides or is colourable exercise of power
based on extraneous and irrelevant considerations...”108Undoubtedly, the finality clauses contained in Article 217(3), 311(3) and in
paragraph 6(1) of the Tenth Schedule were held not to exclude judicial review
since the essential nature of the power is judicial. A constitutional function is
entrusted to the Speaker to certify a Bill as a Money Bill under Article 110(3),
to which the attributes of a judicial power do not apply. Indeed, the power
which is entrusted to the Speaker under Article 110(3) is integral to the
legislative process. But, the fact that the authority which a constitutional
functionary exercises is not of a judicial character, is not sufficient to lead to
the conclusion that a finality clause governing the exercise of that power
makes it immune from judicial review. Where the entrustment of the power is
subject to the due fulfilment of constitutional norms, the exercise of jurisdiction
is amenable to judicial review, to the extent necessary to determine whether
there has been a violation of a constitutional mandate. The nature and extent
of judicial review would undoubtedly vary from a situation where finality has
been attached to a judicial, administrative or quasi-judicial power. However, a
clause on finality notwithstanding, it is open to the constitutional court to
determine as to whether there has been a violation of a constitutional mandate
as a result of which the decision suffers from a constitutional infirmity. The
entrustment of a constitutional function to the Speaker under Article 110(3) to
certify a Bill as a Money Bill is premised on the fulfilment of the norms
stipulated in Article 110(1). A certification can be questioned on the ground
108 Ibid, at page 708122
PART Ethat the Bill did not fulfil the conditions stipulated in Article 110(1) to be
designated as a Money Bill. If that is established, the certification would be
contrary to constitutional mandate. Whether that is so can be judicially
scrutinized.
75 The notion that an entrustment of power is absolute has a colonial
origin. Law under a colonial regime was not just an instrument to maintain
order but was a source of subordination. Recognition of the vesting of
absolute authority was but a reflection of the premise that those who ruled
could not be questioned. Those who were ruled had to accept the authority of
the ruler. Nothing can be as divorced from constitutional principle as these
normative foundations of colonial law and history. The notion that power is
absolute is inconsistent with a Constitution which subjects the entrustment of
functions to public functionaries to the restraints which accompany it. Our law
must recognise the need to liberate its founding principles from its colonial
past. The Court should not readily accept the notion that the authority vested
in a constitutional functionary is immune from judicial review. In the absence
of a specific exclusion of judicial review, none can be implied. Moreover, any
exclusion of judicial review must be tested on the anvil of its functionality. A
specific exclusion of judicial review, in order to be valid, must serve a
constitutional function. The test of functionality must relate to whether an
exclusion of review is necessary to fulfil the overarching need for the proper
discharge of a constitutional role. Exclusion of review, to be valid, must fulfil
123
PART Ethe requirement of a constitutional necessity. Its purpose cannot be to shield
an excess of power from being questioned before the Court. Nor is the fact
that a power is vested in a high functionary a ground to shield it from scrutiny.
The ultimate test is whether the exclusion of judicial review is express and
specific and, whether such an exclusion is designed to achieve a
constitutional purpose that meets the test of functionality, assessed in terms of
a constitutional necessity. In the seventh decade of the republic, our
interpretation of the Constitution must subserve the need to liberate it from its
colonial detritus.
This approach was adopted by a seven judge Bench of this Court in Krishna
Kumar Singh v State of Bihar109. While interpreting the ordinance making
power of the Governor, the Court held that the interpretation of the
Constitution must be “carefully structured” to ensure that the power remains
what the framers of our Constitution intended it to be. The Bench held:
“91…The issue which needs elaboration is whether an
ordinance which by its very nature has a limited life can bring
about consequences for the future (in terms of the creation of
rights, privileges, liabilities and obligations) which will enure
beyond the life of the ordinance. In deciding this issue, the
court must adopt an interpretation which furthers the
basic constitutional premise of legislative control over
ordinances. The preservation of this constitutional value
is necessary for parliamentary democracy to survive on
the sure foundation of the Rule of law and collective
responsibility of the executive to the legislature. The
silences of the Constitution must be imbued with
substantive content by infusing them with a meaning
which enhances the Rule of law. To attribute to the
executive as an incident of the power to frame ordinances, an
unrestricted ability to create binding effects for posterity would109 (2017) 3 SCC 1
124
PART Eset a dangerous precedent in a parliamentary democracy.
The court's interpretation of the power to frame ordinances,
which originates in the executive arm of government, cannot
be oblivious to the basic notion that the primary form of law
making power is through the legislature...”110 (Emphasis
supplied)The ordinance making power was held to be an exceptional power to meet a
“constitutional necessity”.
76 The marginal note to Article 122 is: “Courts not to inquire into
proceedings of Parliament”. The Article reads thus:
“122. (1) The validity of any proceedings in Parliament shall
not be called in question on the ground of any alleged
irregularity of procedure.(2) No officer or member of Parliament in whom powers are
vested by or under this Constitution for regulating procedure
or the conduct of business, or for maintaining order, in
Parliament shall be subject to the jurisdiction of any court in
respect of the exercise by him of those powers.”This Court must deal with the question whether the Speaker’s decision under
Article 110(3) is protected by Article 122. Article 122 prohibits courts from
examining the validity of any proceedings in Parliament on the ground that
there was “any alleged irregularity of procedure”. The content of the
expression “procedure” referred to in the Article, is indicated in Article 118 of
the Constitution. The marginal note to Article 118 provides for “Rules of
procedure”. Article 118 provides as follows:
“118. (1) Each House of Parliament may make rules for
regulating, subject to the provisions of this Constitution,
its procedure and the conduct of its business.(2) Until rules are made under clause (1), the rules of
110 Ibid, at pages 76-77125
PART Eprocedure and standing orders in force immediately before
the commencement of this Constitution with respect to the
Legislature of the Dominion of India shall have effect in
relation to Parliament subject to such modifications and
adaptations as may be made therein by the Chairman of the
Council of States or the Speaker of the House of the People,
as the case may be.(3) The President, after consultation with the Chairman of the
Council of States and the Speaker of the House of the
People, may make rules as to the procedure with respect to
joint sittings of, and communications between, the two
Houses.(4) At a joint sitting of the two Houses the Speaker of the
House of the People, or in his absence such person as may
be determined by rules of procedure made under clause (3),
shall preside.” (Emphasis supplied)77 Articles 118 to 122 are covered under the rubric of the general heading-
“Procedure Generally”. Article 118 provides for rules to be made by each
House of Parliament for regulating the procedure and conduct of its business.
The Article subjects these contemplated rules to the provisions of the
Constitution. The provision does not indicate that these rules will stand above
the Constitution. They are, on the contrary, subject to the Constitution. The
rules framed under Article 118, are procedural in nature. The procedure
contemplated under Articles 118 to 122 is distinct from substantive
constitutional requirements. The obligation placed on the Speaker of the Lok
Sabha to certify whether a Bill is a Money Bill is not a mere matter of
“procedure” contemplated under Article 122. It is a constitutional requirement,
which has to be fulfilled according to the norms set out in Article 110. Article
122 will not save the action of the Speaker, if it is contrary to constitutional
norms provided under Article 110. The Court, in the exercise of its power of
judicial review, can adjudicate upon the validity of the action of the Speaker if
126
PART Eit causes constitutional infirmities. Article 122 does not envisage exemption
from judicial review, if there has been a constitutional infirmity. The
Constitution does not endorse a complete prohibition of judicial review under
Article 122. It is only limited to an “irregularity of procedure”.
78 This Court has on several occasions restricted the scope of the bar
provided under Article 122 (and under corresponding Article 212 for the
States) and has distinguished an “irregularity of procedure” from “illegality”. In
Special Reference No. 1 of 1964111, a seven judge Bench of this Court
brought home that distinction in the context of Article 212(1) with the following
observations:
“61…Article 212(2) confers immunity on the officers and
members of the Legislature in whom powers are vested by or
under the Constitution for regulating procedure or the conduct
of business, or for maintaining order, in the Legislature from
being subject to the jurisdiction of any court in respect of the
exercise by him of those powers. Art. 212(1) seems to make it
possible for a citizen to call in question in the appropriate
court of law the validity of any proceedings inside the
legislative chamber if his case is that the said proceedings
suffer not from mere irregularity of procedure, but from
an illegality. If the impugned procedure is illegal and
unconstitutional, it would be open to be scrutinised in a
court of law, though such scrutiny is prohibited if the
complaint against the procedure is no more than this that
the procedure was irregular...” (Emphasis supplied)In Ramdas Athawale v Union of India112 (“Ramdas Athawale”), a
Constitution Bench of this Court extended the above formulation to Article 122
of the Constitution:
111 AIR 1965 SC 745
112 (2010) 4 SCC 1127
PART E“36.This Court Under Article 143, Constitution of India, In re
(Special Reference No. 1 of 1964) [AIR 1965 SC 745 : (1965)
1 SCR 413] (also known as Keshav Singh case [AIR 1965 SC
745 : (1965) 1 SCR 413] ) while construing Article 212(1)
observed that it may be possible for a citizen to call in
question in the appropriate Court of law, the validity of any
proceedings inside the Legislature if his case is that the said
proceedings suffer not from mere irregularity of procedure,
but from an illegality. If the impugned procedure is illegal and
unconstitutional, it would be open to be scrutinized in a Court
of law, though such scrutiny is prohibited if the complaint
against the procedure is no more than this that the procedure
was irregular. The same principle would equally be applicable
in the matter of interpretation of Article 122 of the
Constitution.”113A Constitution Bench of this Court reaffirmed the distinction between a
“procedural irregularity” and an “illegality” in Raja Ram Pal v Hon'ble
Speaker, Lok Sabha114 (“Raja Ram Pal”). The Bench held that courts are
not prohibited from exercising their power of judicial review to examine any
illegality or unconstitutionality in the procedure of Parliament:
“386…Any attempt to read a limitation into Article 122 so as
to restrict the court's jurisdiction to examination of the
Parliament's procedure in case of unconstitutionality, as
opposed to illegality would amount to doing violence to the
constitutional text. Applying the principle of “expressio unius
est exclusio alterius” (whatever has not been included has by
implication been excluded), it is plain and clear that
prohibition against examination on the touchstone of
"irregularity of procedure" does not make taboo judicial
review on findings of illegality or unconstitutionality…115398… the Court will decline to interfere if the grievance
brought before it is restricted to allegations of “irregularity of
procedure”. But in case gross illegality or violation of
constitutional provisions is shown, the judicial review will not
be inhibited in any manner by Article 122, or for that matter by
Article 105.”116113 Ibid, at pages 13-14
114 (2007) 3 SCC 184
115 Ibid, at page 359
116 Ibid, at page 362128
PART EThe Court distinguished the constitutional background in India from that of
England, holding that while England has adopted a regime of exclusive
parliamentary dominance, India is governed by a system of checks and
balances provided in the Constitution:
“366.The touchstone upon which Parliamentary actions within
the four-walls of the Legislature were examined was both the
constitutional as well as substantive law. The proceedings
which may be tainted on account of substantive illegality
or unconstitutionality, as opposed to those suffering
from mere irregularity thus cannot be held protected
from judicial scrutiny by Article 122(1) in as much as the
broad principle laid down in Bradlaugh [(1884) 12 QBD 271]
acknowledging exclusive cognizance of the Legislature in
England has no application to the system of governance
provided by our Constitution wherein no organ is
sovereign and each organ is amenable to constitutional
checks and controls, in which scheme of things, this
Court is entrusted with the duty to be watchdog of and
guarantor of the Constitution.”117 (Emphasis supplied)The principle which emerges from these decisions is that the decision of the
Speaker is amenable to judicial review, if it suffers from illegality or from a
violation of constitutional provisions.
79 The Attorney General advanced the submission that this Court has on
previous occasions refrained from scrutinizing the decision of the Speaker on
whether a Bill is a Money Bill. Those decisions require discussion for
adjudicating the present case. In Mangalore Ganesh Beedi Works v State of
Mysore118 (“Mangalore Beedi”), a new system of coinage was introduced by
amending the Indian Coinage Act. Under the new system, while one rupee
117 Ibid, at page 350
118 1963 Supp (1) SCR 275129
PART Ewas divided into a hundred naya paisas, the old legal tender of sixteen annas
or sixty four pice remained legal tender equivalent to one hundred naya
paisas. The appellant, which was a firm registered under the Mysore Sales
Tax Act, had to pay an additional amount as sales tax due to change in the
currency. It was argued that by the substitution of 2 naya paisas (the new
currency) in place of 3 pies (the old currency) as tax, there was a change in
the tax imposed by the Mysore Sales Tax Act, which could only have been
done by passing a Money Bill under Articles 198, 199 and 207 of the
Constitution and since no Money Bill was introduced or passed for the
enhancement of the tax, the tax was illegal and invalid. The contention,
therefore, was that the procedure envisaged for passing a Money Bill ought to
have been, but was not, followed. The Constitution Bench dismissed the
appeal, holding that the substitution of a new coinage i.e. naya paisas in place
of annas, pice and pies did not amount to an enhancement of tax. It was held
to be merely a substitution of one coinage by another of equivalent value. This
Court held that the levy of tax in terms of naya paisas was not unconstitutional
nor was it a taxing measure but it dealt merely with the conversion of the old
coinage into new coinage. Having held this, the Bench also remarked:
“5…Even assuming that it is a taxing measure its validity
cannot be challenged on the ground that it offends Arts. 197
to 199 and the procedure laid down in Art. 202 of the
Constitution. Article 212 prohibits the validity of any
proceedings in a legislature of a State from being called in
question on the ground of any alleged irregularity of
procedure and Art. 255 lays down that requirements as to
recommendation and previous sanction are to be regarded as
matters of procedure only...”130
PART EThe Court having found that a substitution of coinage did not result in an
enhancement of tax, Article 199 was not attracted. The legislative measure
was not a Money Bill. Once that was the case, the subsequent observations
(extracted above) proceeded on an assumption: that even if it were a taxing
measure, it would be saved by Article 255. The court having held that no
enhancement of tax was involved in a mere substitution of coinage, the
alternative hypothesis is not a part of the ratio and was unnecessary. The ratio
was that substitution of a new coinage did not amount to a Money Bill. The
decision of the Constitution Bench in Mangalore Beedi dealt with the
contention that a Money Bill was unconstitutionally passed as an ordinary Bill.
The Bench held that substitution of coinage did not make it a Money Bill. The
decision contains a general observation regarding the immunity of
proceedings in a state legislature. A scholarly article119 has correctly referred
to the general remarks made in Mangalore Beedi as unnecessary and not the
ratio since the issue was already decided on merits, by holding that the
substitution of coinage was not an enhancement of tax.
80 A three judge Bench of this Court in Mohd Saeed Siddiqui v State of
Uttar Pradesh120 (“Mohd Saeed Siddiqui”) dealt with the constitutional
validity of the Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act,
2012. Section 5(1) of the unamended Act provided a term of six years for the
Lokayukta. Section 5(3) provided that on ceasing to hold office, the Lokayukta
119 Pratik Datta, Shefali Malhotra Shivangi Tyagi, Judicial Review and Money Bills, Vol 10, NUJS Law Review
(2017).120 (2014) 11 SCC 415
131
PART Eor Up-Lokayukta shall be ineligible for further appointment. The new State
government, which came in office, introduced a Bill which was passed as the
Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act, 2012, by
which the term of the U.P. Lokayukta and Up-Lokayukta was extended from
six years to eight years or till the successor enters upon office. The
Amendment Act also limited the ineligibility of the Lokayuktas or Up-
Lokayuktas for further appointment under the Government of Uttar Pradesh.
The Amendment Act was challenged on the ground that it was passed as a
Money Bill when, on the face of it, it could never have been called a Money
Bill under Article 199 of the Constitution. The Bench rejected the petition
holding that the question “whether a Bill is a Money Bill or not can be raised
only in the State Legislative Assembly by a member thereof when the Bill is
pending in the State Legislature and before it becomes an Act”. It relied upon
the observations made in Mangalore Beedi, to formulate following principles:
“(i) the validity of an Act cannot be challenged on the ground
that it offends Articles 197 to 199 and the procedure laid
down in Article 202; (ii) Article 212 prohibits the validity of any
proceedings in a Legislature of a State from being called in
question on the ground of any alleged irregularity of
procedure; and (iii) Article 255 lays down that the
requirements as to recommendation and previous sanction
are to be regarded as a matter of procedure only. It is further
held that the validity of the proceedings inside the Legislature
of a State cannot be called in question on the allegation that
the procedure laid down by the law has not been strictly
followed and that no Court can go into those questions which
are within the special jurisdiction of the Legislature itself,
which has the power to conduct its own business.”132
PART EThe judgment also made a reference to the seven judge Bench decision in
Pandit MSM Sharma v Dr Shree Krishna Sinha121 (“MSM Sharma”).
The “proceedings of the Legislature” were held to include “everything said or
done in either House” in the transaction of parliamentary business. Relying
upon Articles 212 and 255, the Bench accorded finality to the decision of the
Speaker:
“43. As discussed above, the decision of the Speaker of the
Legislative Assembly that the Bill in question was a Money
Bill is final and the said decision cannot be disputed nor can
the procedure of the State Legislature be questioned by virtue
of Article 212. Further, as noted earlier, Article 255 also
shows that under the Constitution the matters of procedure do
not render invalid an Act to which assent has been given to
by the President or the Governor, as the case may be.Inasmuch as the Bill in question was a Money Bill, the
contrary contention by the Petitioner against the passing of
the said Bill by the Legislative Assembly alone is
unacceptable.”122Making a passing reference to the decision of the Constitution Bench in Raja
Ram Pal, the Bench opined that even if it is established that there was some
infirmity in the procedure in the enactment of the Amendment Act, it will be
protected by Article 255 of the Constitution.
81 Subsequently, a two judge Bench of this Court in Yogendra Kumar
Jaiswal v State of Bihar123 (“Yogendra Kumar”) dealt with the constitutional
validity of the Orissa Special Courts Act, 2006. The law was enacted by the
121 AIR 1960 SC 1186
122 Mohd Saeed Siddiqui, Ibid, at page 430
123 (2016) 3 SCC 183133
PART EState legislature, keeping in view the accumulation of properties
disproportionate to their known sources of income by persons who have held
or hold high political and public offices. The legislature provided special courts
for speedy trial of certain classes of offences and for confiscation of
properties. The appellants, who were public servants and facing criminal
cases, challenged the Act on the ground that it was introduced in the State
Assembly as a Money Bill though it did not have any characteristics of a
Money Bill under Article 199 of the Constitution. The Court dismissed the
petitions, following the decision in Mohd Saeed Siddiqui. It held that:
“43. In our considered opinion, the authorities cited by the
learned Counsel for the Appellants do not render much
assistance, for the introduction of a bill, as has been held in
Mohd. Saeed Siddiqui (supra), comes within the concept of
“irregularity” and it does come with the realm of substantiality.What has been held in the Special Reference No. 1 of 1964
(supra) has to be appositely understood. The factual matrix
therein was totally different than the case at hand as we find
that the present controversy is wholly covered by the
pronouncement in Mohd. Saeed Siddiqui (supra) and hence,
we unhesitatingly hold that there is no merit in the submission
so assiduously urged by the learned Counsel for the
Appellants.”124Special Reference No. 1 of 1964 was distinguished in Yogendra Kumar.
Article 255 provides:
“No Act of Parliament or of the Legislature of a State, and no
provision in any such Act, shall be invalid by reason only that
some recommendation or previous sanction required by this
Constitution was not given, if assent to that Act was given—(a) where the recommendation required was that of the
Governor, either by the Governor or by the President;(b) where the recommendation required was that of the
Rajpramukh, either by the Rajpramukh or by the President;124 Ibid, at page 229
134
PART E(c) where the recommendation or previous sanction required
was that of the President, by the President.”82 Article 255 speaks about a situation where a “recommendation or
previous sanction” is required to be given by the Governor, Rajpramukh or, as
the case may be, by the President. The absence of a recommendation or
previous sanction will not invalidate the law, where the Act has received the
assent of the Governor or the President. Subsequent assent, in other words,
cures the absence of recommendation or sanction. Article 255 is in no way
related to the decision or certificate of the Speaker of the Lok Sabha or of the
State Legislative Assembly on whether a Bill is a Money Bill. Moreover, Article
255 does not apply to Articles 110 for the simple reason that the latter does
not embody either a previous sanction or recommendation. Article 255 does
not envisage superseding the role of the Upper House of Parliament or the
State Legislature. Mohd Saeed Siddiqui proceeds on an erroneous
understanding of Article 255. Mohd Saeed Siddiqui was followed in
Yogendra Kumar. These two judgments cite the same three articles —
Articles 199,125 212,126 and 255, to refrain from questioning the conduct of the
Speaker, without noticing that Article 255 does not apply there.
Further, MSM Sharma, which was referred in Mohd Saeed Siddiqui was
discussed in the Special Reference to hold that the validity of any
proceedings in a legislative chamber can be questioned if such proceedings
125 Corresponding provision for the Union is Article 110 of the Constitution.
126 Corresponding provision for the Union is Article 122 of the Constitution.135
PART Esuffer from illegality. The consistent thread which emerges from the judgments
in Special Reference, Ramdas Athawale and Raja Ram Pal is that the
validity of proceedings in Parliament or a State Legislature can be subject to
judicial review on the ground that there is an illegality or a constitutional
violation. Moreover, the judgment in Yogendra Kumar followed Mohd Saeed
Siddiqui. Siddiqui was based on an erroneous understanding of Mangalore
Beedi. The decision of the Speaker under Articles 110(3) and 199(3) is not
immune from judicial review.
The three judge Bench decision in Mohd Saeed Siddiqui and the two judge
Bench decision in Yogendra Kumar are overruled.
83 Barring judicial review of the Lok Sabha Speaker’s decision would
render a certification of a Bill as a Money Bill immune from scrutiny, even
where the Bill does not, objectively speaking, deal only with the provisions set
out in Article 110(1). The decision of the Speaker of the Lok Sabha whether a
Bill is a Money Bill impacts directly upon the constitutional role which will be
discharged by the Rajya Sabha in relation to it. The Lok Sabha alone does not
represent Parliament. The Indian Parliament is bicameral. The Constitution
envisages a special role for the Rajya Sabha. In order to truly understand the
relevance of the Rajya Sabha in the Indian context, an analysis of major
bicameral systems is necessary, as an exercise in comparative law.
136
PART E84 Bicameral legislatures are not unique to either the Presidential or
Parliamentary forms of government. Democracies with a Presidential form of
government have adopted bicameral legislatures, the United States being the
leading example. Among Parliamentary democracies, India and the UK have
adopted bicameral legislatures. They are predominant in federal countries.
Where second chambers exist, they vary in terms of powers and composition.
Together, their powers and composition shape the impact that they have on
legislation.127 The phenomenon of the bicameral system has two different
historic origins. It was first established in England, and later in the US.128 Both
these models have been replicated across the globe.
85 Britain developed some of the earliest institutional practices that came
to be emulated through the Western world. A separate powerful legislature
was initiated when King John in 1215 gave a written commitment to seek the
consent of Parliament to levy taxes to which he was entitled by feudal
prerogative. Over the next five centuries, the British Parliament was
transformed from an institution summoned at the desire of the ruler to one
which met on regular occasions to develop policy inclinations independent of
the wishes of the ruler.129 In the fourteenth century, Parliament was divided
into two chambers: one chamber (the House of Lords) in which debate took
place with the feudal lords and a second chamber (the House of Commons)
127 Fathali M. Moghaddam, The SAGE Encyclopaedia of Political Behaviour (2017).
128 Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry of the Interior and Kingdom
Relations- Netherlands (2015), at page 7
129 Abhinay Muthoo Kenneth A. Shepsle, The Constitutional Choice of Bicameralism, in Institutions andEconomic Performance (Elhanan Helpman ed.), Harvard University Press (2008), at pages 251-252
137
PART Ewhere the citizens were represented.130 The upper chamber of the British
Parliament, the Lords, comprised of hereditary peers (whose number varied
with the discretion of the King to create them). The lower chamber, the
Commons, represented individuals satisfying a substantial property
requirement. The two chambers in Britain reflected a kind of class division.
Before the beginning of the eighteenth century, several factors such as civil
war, regicide, experimentation with a republic, and the restoration of the titular
monarch caused power to be permanently shifted from the King to
Parliament.131
Around the same time, the British colonies in North America were crafting
institutions of their own. Colonial legislatures were being conceptualized on
similar lines, with some exceptions, to British Parliament. The Constitution for
the newly formed United States adopted a bicameral system.132 The
legislature in the United States was innovative, for it created a bicameral
arrangement that replaced a class basis (as was in existence in Britain) for
chamber representation with a modified federal basis. The Constitutional
Convention of 1787 had provided for a lower chamber, a directly-elected
House of Representatives, where each voter had an equal vote in elections,
and an upper chamber, a Senate, to which each state could send two
members, elected indirectly by the state parliaments. The Convention was a
130 Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry of the Interior and Kingdom
Relations- Netherlands (2015), at page 7
131 Abhinay Muthoo Kenneth A. Shepsle, The Constitutional Choice of Bicameralism, in Institutions and
Economic Performance (Elhanan Helpman ed.), Harvard University Press (2008), at page 252
132 Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry of the Interior and Kingdom
Relations- Netherlands (2015), at page 8138
PART Ecompromise between those who wanted a parliament in which the states,
irrespective of their population size, would have an equal voice, and those
who wanted a Parliament for the newly formed federal nation where the
participating states were represented in proportion to the size of their
population. A system with two differently composed chambers was ultimately
chosen to be the only way out of the deadlock.133 The rationale for a
bicameral legislature comprising of a directly elected Lower House and an
indirectly elected Upper House was best articulated by James Madison, in the
Federalist Papers:
“First… a senate, as a second branch of the legislative
assembly, distinct from, and dividing the power with, a first,
must be in all cases a salutary check on the government. It
doubles the security to the people, by requiring the
concurrence of two distinct bodies in schemes of usurpation
or perfidy, where the ambition or corruption of one would
otherwise be sufficient…
Second. The necessity of a senate is not less indicated by the
propensity of all single and numerous assemblies to yield to
the impulse of sudden and violent passions, and to be
seduced by factious leaders into intemperate and pernicious
resolutions…
Third. Another defect to be supplied by a senate lies in a want
of due acquaintance with the objects and principles of
legislation. It is not possible that an assembly of men called
for the most part from pursuits of a private nature, continued
in appointment for a short time, and led by no permanent
motive to devote the intervals of public occupation to a study
of the laws, the affairs, and the comprehensive interests of
their country, should, if left wholly to themselves, escape a
variety of important errors in the exercise of their legislative
trust… A good government implies two things: first, fidelity to
the object of government, which is the happiness of the
people; secondly, a knowledge of the means by which that
object can be best attained…
Fourth. The mutability in the public councils arising from a
rapid succession of new members, however qualified they133Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry of the Interior and Kingdom
Relations- Netherlands (2015), at page 7139
PART Emay be, points out, in the strongest manner, the necessity of
some stable institution in the government…”134Madison conceptualized that the second chamber would fulfil significant roles:
(a) it would provide the certainty that the government will not neglect its
obligations to its constituents, as the chamber provides an extra check on it;
(b) it can curb the actions of the other chamber if it gives into the urge to
follow ‘sudden and pronounced sentimental reactions’; (c) it can meet the
need for expertise in the framing of laws and the interests of the country, and
thus help to avoid legislative mistakes; and (d) it can be a factor for stability
that ensures continuity in the administration of the country.
86 Bicameralism, in both systems, emerged as a development associated
with the changing conceptions of the state. The literature on bicameralism has
highlighted the importance of having a second chamber in the legislature of a
state. William Riker has emphasized that a bicameral structure acts as a
control over the tyranny of a majority.135 Levmore similarly echoes this
thought:
“At the very least, if the two chambers consider an issue
simultaneously, one chamber’s agenda setter will be at the
mercy of the order of consideration in the second chamber.Bicameralism can thus be understood as an antidote to the
manipulative power of the convenor, or agenda setter, when
faced with cycling preferences.”136134 James Madison, The Federalist No. 62 – The Senate, The Federalist Papers (1788), available at
135 William H. Riker, The Justification of Bicameralism, International Political Science Review (1992), Vol. 13,
Issue 1, at pages 101–16.
136 Saul Levmore, Bicameralism: When Are Two Decisions Better than One?, International Review of Law and
Economics (1992), Vol. 12, at pages 147-148.
140
PART EA study137 commissioned by the Dutch Ministry of the Interior and Kingdom
Relations analysed the design of the bicameral system in several countries.
The study consulted constitutional texts and literature on the evolution of
bicameralism and came to the finding that:
“Historically, the creation of bicameral systems, both in the
federal and the aristocratic variant, always was a concession
to those (states or estates) who risked losing power in the
new setting. In emerging democracies, and up until the
present day, the choice of a bicameral system appears as a
means of dispelling fear about the consequences of
democratisation and reconciling established elites with the
democratisation process. In developed democracies, the
rationale of a bicameral system is now sought primarily in the
possibility of combining different systems of representation
(particularly in federal systems) and in the possibility of
reconsideration by a different chamber in the legislative,
making it possible to avoid making mistakes and enhancing
both the quality and the stability of the legislation. In majority
systems of the Westminster model - where the government is
part of the lower house and it tends to have a stable majority -a senate moreover is sometimes ascribed the role of giving
more independent input into the parliamentary work, less
determined by party discipline, and of paying more attention
to the interests of minorities. A bicameral system is, for that
reason, sometimes recommended as a means to protect
minorities against a tyranny of the majority… Finally, a
bicameral system may also increase efficiency because it is
possible to divide the legislative workload between two
chambers. That can be the case when the two chambers
absorb a sort of division of labour (e.g. an emphasis on
technical legal quality in the senate). In many bicameral
systems, moreover, it can be decided to put bills to either
house, and the senate also has a right of initiative.”13887 The importance of the second chamber increases when there is no
single party rule in Parliament. Governments that lack Upper-House majority
137 Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry of the Interior and Kingdom
Relations- Netherlands (2015).138 Ibid, at pages 11-12
141
PART Esupport find it difficult to pass Bills.139 Elliot Bulmer notes pertinently that in a
democracy, a second chamber addresses the inability of the elected chamber
to adequately represent a diverse society. In this view, a second chamber
may enable a “more nuanced and complete representation of society, with
greater representation for territorial, communal or other minorities”.140
While discussing the advantage of second chambers in republican
legislatures, Rogers observes that the institution of a second chamber
generates legislative advantage only “if the chambers differ significantly from
one another”.141 Quoting from the work of various scholars, he observes:
“Hammond and Miller find that “The stability-inducing
properties of bicameralism are . . . dependent on the
existence of distinctly different viewpoints in the two
chambers”… Buchanan and Tullock conclude similarly that,
“unless the bases for representation are significantly different
in the two houses, there would seem to be little excuse for the
two-house system”… Because two “congruent” chambers
would ostensibly not significantly affect policy outcomes,
Lijphart described bicameral systems with congruent
chambers as “weak” forms of bicameralism…”14288 Bicameralism, when entrenched as a principle in a constitutional
democracy, acts as a check against the abuse of power by constitutional
means or its use in an oppressive manner. As a subset of the constitutional
principle of division of power, bicameralism is mainly a safeguard against the
abuse of the constitutional and political process. A bicameral national
139 James N. Druckman Michael F. Thies, The Importance of Concurrence: The Impact of Bicameralism on
Government Formation and Duration, American Journal of Political Science (2002), Vol. 46, No. 4, at pages
760-771.140 Elliot Bulmer, Bicameralism, International Institute for Democracy and Electoral Assistance (2017), at page 4
141 James R. Rogers, The Advantage of Second Chambers in Republican Legislatures: An Informational Theory,at page 6, available at https://ecpr.eu/Filestore/PaperProposal/beb20221-c2c5-4475-9b9f-74bb3f1512a7.pdf
142 Ibid142
PART Eparliament can hold the government accountable and can check or restrain
the misuse of government power. Among its other roles is that of representing
local state units, acting as a body of expert review, and providing
representation for diverse socio-economic interests or ethno-cultural
minorities.
While deliberating over the necessity of having a second chamber, the
Constituent Assembly had the benefit of examining the constitutional history
of several other nations. The constitutional advisor, B N Rau, found the issue
of second chambers to be “one of the most vexing questions of political
science”.143 Under colonial rule, bicameralism had already been introduced.
The first bicameral legislature as the national assembly for India was
established by the Government of India Act 1919. The Government of India
Act, 1935 had created an Upper House in the federal legislature which
consisted of members elected by the provincial legislatures as well as
representatives sent by numerous princely states that were not under the
direct control of the British government. The 1935 Act became the blueprint
for the structure of Parliament in the new Constitution. The Rajya Sabha, as
the Upper House of the Parliament, was adopted into the Constitution. The
vision of the Constitution makers behind the establishment of the Upper
House of Parliament has found expression in the classic work of Granville
Austin:
143Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page
195143
PART E“The members of the Constituent Assembly had one
predominant aim when framing the Legislative provisions of
the Constitution: to create a basis for the social and political
unity of the country… The goals of the Constituent
Assembly… were to bring popular opinion into the halls of
government, and, by the method of bringing it there, to show
Indians that although they were many peoples, they were but
one nation.”14489 Article 80 of the Constitution deals with the composition of the Rajya
Sabha. The maximum strength of this chamber is 250 members, out of which
up to 238 members are elected representatives from the states and union
territories. 12 members are nominated by the President among persons with
a special knowledge or practical experience in literature, science, art and
social service. Members representing the states are elected by the state
legislatures through proportional representation by means of a single
transferable vote145. The method of electing representatives from Union
territories has been left to prescription by Parliament.146 In a departure from
the American model of equal representation for the states, the allocation of
seats in the Rajya Sabha to the States and Union territories is in accordance
with the division provided in the Fourth Schedule of the Constitution (read with
Articles 4(1) and 80(2)). The reason behind this division of seats is “to
safeguard the interests of the smaller states while at the same time ensuring
the adequate representation of the larger states, so that the will of the
representatives of a minority of the electorate does not prevail over that of
144 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at pages
180 203
145 Article 80(4), The Constitution of India
146 Article 80(5), The Constitution of India144
PART Ethose who represented the majority”147. In this sense, the Rajya Sabha has a
special structure.
90 The institutional structure of the Rajya Sabha has been developed to
reflect the pluralism of the nation and its diversity of language, culture,
perception and interest. The Rajya Sabha was envisaged by the makers of
the Constitution to ensure a wider scrutiny of legislative proposals. As a
second chamber of Parliament, it acts as a check on hasty and ill-conceived
legislation, providing an opportunity for scrutiny of legislative business. The
role of the Rajya Sabha is intrinsic to ensuring executive accountability and to
preserving a balance of power. The Upper Chamber complements the
working of the Lower Chamber in many ways. The Rajya Sabha acts as an
institution of balance in relation to the Lok Sabha and represents the federal
structure148 of India. Both the existence and the role of the Rajya Sabha
constitute a part of the basic structure of the Constitution. The architecture of
our Constitution envisions the Rajya Sabha as an institution of federal
bicameralism and not just as a part of a simple bicameral legislature. Its
nomenclature as the ‘Council of States’ rather than the ‘Senate’ appropriately
justifies its federal importance.149 Seervai has observed that the federal
principle is dominant in our Constitution. While adverting to several of its
147 Sidharth Chauhan, Bicameralism: comparative insights and lessons, Seminar (February, 2013) available at
148 In SR Bommai v Union of India (AIR 1994 SC 1998), a seven-judge Bench of this Court held: “Democracy and
federalism are the essential features of our Constitution and are part of its basic structure.”
149 Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of Rajya Sabha, (2009), atpage 2. See also M.N. Kaul and S.L. Shakdher, Practice and Procedure of Parliament, Lok Sabha Secretariat
(2001)145
PART Efederal features, Seervai emphasises the position of the Rajya Sabha as an
integral element:
“First and foremost, Parliament (the Central Legislature) is
dependent upon the States, because one of its Houses, the
Council of States, is elected by the Legislative Assemblies of
the States. Where the ruling party, or group of parties, in the
House of the People has a majority but not an overwhelming
majority, the Council of States can have a very important
voice in the passage of legislation other than financial Bills.
Secondly, a Bill to amend the Constitution requires to be
passed by each House of Parliament separately by an
absolute majority in that House and by not less than two-thirds of those present and voting. Since the Council of States
is indirectly elected by the State Legislatures, the State
Legislatures have an important say in the amendment of the
Constitution because of the requirement of special majorities
in each House. Thirdly, the very important matters mentioned
in the proviso to Article 368 (Amendment of the Constitution)
cannot be amended unless the amendments passed by
Parliament are ratified by not less than half the number of
Legislatures of the States… Fourthly, the amendment of
Article 352 by the 44th Amendment gives the Council of
States a most important voice in the declaration of
Emergency, because a proclamation of emergency must be
approved by each House separately by majorities required for
an amendment of the Constitution… Fifthly, the executive
power of the Union is vested in the President of India who is
not directly elected by the people but is elected by an
electoral college consisting of (a) the elected members of the
Legislative Assemblies of the States and (b) the elected
members of both Houses of Parliament… Directly the State
Legislatures have substantial voting power in electing the
President; that power is increased indirectly through the
Council of States, which is elected by the Legislative
Assemblies of States.”15091 The Rajya Sabha represents the constituent states of India. It
legitimately holds itself as the guardian of the interest of the component states
in a federal polity. It endeavours to remain concerned and sensitive to the
aspirations of the states, thereby strengthening the country’s “federal fabric”
150 H M Seervai, Constitutional Law of India, Universal Law Co. Pvt. Ltd, Vol. 1, (1991), at pages 299-300.
146
PART Eand “promotes national integration”.151 Being the federal chamber of
Parliament, the Rajya Sabha enjoys some special powers, which are not even
available to the Lok Sabha, under the Constitution152:
“(i) Article 249 of the Constitution provides that Rajya Sabha
may pass a resolution, by a majority of not less than two-
thirds of the Members present and voting to the effect that it is
necessary or expedient in the national interest that Parliament
should make a law with respect to any matter enumerated in
the State List. Then, Parliament is empowered to make a law
on the subject specified in the resolution for the whole or any
part of the territory of India. Such a resolution remains in force
for a maximum period of one year but this period can be
extended by one year at a time by passing a further
resolution;(ii) Under Article 312 of the Constitution, if Rajya Sabha
passes a resolution by a majority of not less than two-thirds of
the Members present and voting declaring that it is necessary
or expedient in the national interest to create one or more All
India Services common to the Union and the States,
Parliament has the power to create by law such services; and(iii) Under the Constitution, President is empowered to issue
Proclamations in the event of national emergency (Article352), in the event of failure of constitutional machinery in a
State (Article 356), or in the case of financial emergency
(Article 360). Normally, every such Proclamation has to be
approved by both Houses of Parliament within a stipulated
period. Under certain circumstances, however, Rajya Sabha
enjoys special powers in this regard. If a Proclamation is
issued at a time when the dissolution of the Lok Sabha takes
place within the period allowed for its approval, then the
Proclamation can remain effective if a resolution approving it,
is passed by Rajya Sabha.”92 The Rajya Sabha is a permanent body as it is not subject to
dissolution.153 Being an indirectly elected House, it has no role in the making
or unmaking of the Government and therefore it is comparatively “free from
151 Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of Rajya Sabha, (2009), at
page 6.152 Rajya Sabha Secretariat, Structure and Functions of Rajya Sabha Secretariat, (2009), at pages 2-3
153 Under Article 83(1), the Rajya Sabha is a permanent body with members being elected for 6 year terms andone-third of the members retiring every 2 years.
147
PART Ecompulsions of competitive party politics”.154 As a revising chamber, the
Constitution makers envisioned that it will protect the values of the
Constitution, even if it is against the popular will. The Rajya Sabha is a symbol
against majoritarianism.
A Constitution Bench of this Court in Kuldip Nayar v Union of India155
highlighted the importance of the Rajya Sabha:
“47. The Rajya Sabha is a forum to which experienced public
figures get access without going through the din and bustle of
a general election which is inevitable in the case of Lok
Sabha. It acts as a revising chamber over the Lok Sabha. The
existence of two debating chambers means that all proposals
and programmes of the Government are discussed twice. As
a revising chamber, the Rajya Sabha helps in improving Bills
passed by the Lok Sabha...”15693 Participatory governance is the essence of democracy. It ensures
responsiveness and transparency. An analysis of the Bills revised by the
Rajya Sabha reveals that in a number of cases, the changes recommended
by the Rajya Sabha in the Bills passed by the Lok Sabha were eventually
carried out.157 The Dowry Prohibition Bill is an example of a legislation in
which the Rajya Sabha’s insistence on amendments led to the convening of a
joint sitting158 of the two Houses and in that sitting, one of the amendments
154 Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of Rajya Sabha, (2009), at
pages 7-8
155 (2006) 7 SCC 1
156 Ibid, at page 47
157 Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of Rajya Sabha, (2009), atpage 5
158 Dr Ambedkar explained that the joint sitting had been kept at the centre because of the federal character ofthe Central Legislature. See Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford
University Press (1966), at page 202148
PART Esuggested by the Rajya Sabha was adopted without a division. 159 The Rajya
Sabha has a vital responsibility in nation building, as the dialogue between the
two houses of Parliament helps to address disputes from divergent
perspectives. The bicameral nature of Indian Parliament is integral to the
working of the federal Constitution. It lays down the foundations of our
democracy. That it forms a part of the basic structure of the Constitution, is
hence based on constitutional principle. The decision of the Speaker on
whether a Bill is a Money Bill is not a matter of procedure. It directly impacts
on the role of the Rajya Sabha and, therefore, on the working of the federal
polity.
94 There is a constitutional trust which attaches to the empowerment of
the Speaker of the Lok Sabha to decide whether a legislative measure is a
Money Bill. Entrustment of the authority to decide is founded on the
expectation that the Speaker of the Lok Sabha will not dilute the existence of
a co-ordinate institution in a bicameral legislature. A constitutional trust has
been vested in the office of the Speaker of the Lok Sabha. By declaring an
ordinary Bill to be a Money Bill, the Speaker limits the role of the Rajya
Sabha. This power cannot be unbridled or bereft of judicial scrutiny. If the
power of the Speaker is exercised contrary to constitutional norms, it will not
only limit the role of the Rajya Sabha, but denude the efficacy of a legislative
body created by the Constitution. Such an outcome would be inconsistent
159 Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of Rajya Sabha, (2009), at
page 5149
PART Ewith the scheme of the Indian Constitution. Judicial review is necessary to
ensure that the federal features of the Constitution are not transgressed.
E.2 Aadhaar Act as a Money Bill
This Court must now deal with whether the Aadhaar Act was validly passed as
a Money Bill.
95 Article 110(1) of the Constitution defines a Money Bill. For a Bill to be a
Money Bill, it must contain “only provisions” dealing with every or any one of
the matters set out in sub-clauses (a) to (g) of clause 1 of Article 110. The
expression “if it contains only provisions dealing with all or any of the following
matters, namely...” is crucial. Firstly, the expression “if” indicates a condition
and it is only upon the condition being fulfilled that the deeming fiction of a Bill
being a Money Bill for the purposes of the Chapter will arise. Secondly, to be a
Money Bill, the Bill should have only those provisions which are referable to
clauses (a) to (g). The condition is much more stringent than stipulating that
the Bill should incorporate any of the matters spelt out in clauses (a) to (g).
The words “only provisions” means that besides the matters in sub clauses (a)
to (g), the Bill shall not include anything else. Otherwise, the expression “only”
will have no meaning. The word “only” cannot be treated to be otiose or
redundant. Thirdly, the two expressions “if it contains only provisions” and
“namely” indicate that sub-clauses (a) to (g) are exhaustive of what a Money
Bill may contain. The contents of a Money Bill have to be confined to all or any
150
PART Eof the matters specified in sub-clauses (a) to (g). Fourthly, sub-clause (g)
covers any matter incidental to sub-clauses (a) to (f). A matter is incidental
when it is ancillary to what is already specified. Sub-clause (g) is not a
residuary entry which covers all other matters other than those specified in
sub-clauses (a) to (f). If sub-clause (g) were read as a catch-all residuary
provision, it would defeat the purpose of defining a class of Bills as Money
Bills. What is incidental under sub-clause (g) is that which is ancillary to a
matter which is already specified in sub-clauses (a) to (f). The test is not
whether it is incidental to the content of a Bill but whether it is incidental to any
of the matters specifically enumerated in sub-clauses (a) to (f). The Attorney
General would request the court to read the word “only” before “if” and not
where it occurs. If the submission were to be accepted, it would lead to the
consequence that the Bill would be a Money Bill if it contained provisions
dealing with clause (a) to (g), even if it contained other provisions not relatable
to these clauses. We cannot rewrite the Constitution, particularly where it is
contrary to both text, context and intent.
Clause (2) of Article 110 provides that a Bill shall not be deemed to be a
Money Bill just for the reason that it provides for the imposition of fines or
other pecuniary penalties, or for the demand or payment of fees for licences or
fees for services rendered, or by reason that it provides for the imposition,
abolition, remission, alteration or regulation of any tax by any local authority or
body for local purposes. Like in the Parliament Act of 1911, the definition of a
151
PART EMoney Bill provided under Article 110(1) is exhaustive in nature. A Bill can be
a Money Bill if it contains “only provisions” dealing with all or any of the
matters listed under sub-clauses (a) to (g) of Article 110(1).
96 A Financial Bill is different from a Money Bill. Article 117 provides for
special provisions relating to Financial Bills. Clause (1) of Article 117 states:
“(1) A Bill or amendment making provision for any of the
matters specified in sub-clauses (a) to (f) of clause (1) of
article 110 shall not be introduced or moved except on the
recommendation of the President and a Bill making such
provision shall not be introduced in the Council of States.”A Financial Bill does not need to have “only provisions” dealing with Sub-
clauses (a) to (f) of Article 110. The provisions of Article 110(1) are therefore
narrow and exhaustive.
97 As a matter of interpretation, the use of the word “only” indicates that a
particular entry is exhaustive and is inapplicable to anything which falls
outside its scope. This Court has interpreted the expression “only” as a word
of exclusion and restriction.160 The interpretation of Article 110(1) as being
restrictive in nature is also supported by the proceedings in the Constituent
Assembly of India. Article 110 corresponds to Article 90 of the Draft
Constitution. On 20 May 1949, a member of the Constituent Assembly,
Ghanshyam Singh Gupta, proposed an amendment in clause (1) of Article 90
160Hari Ram v. Baby Gokul Prasad, (1991) Supp (2) SCC 608; M/s Saru Smelting (P) Ltd. v. Commissioner of
Sales Tax, Lucknow, (1993) Supp (3) SCC 97.152
PART Eto delete the word “only”. He stated that a Bill can be a Money bill even while
containing other provisions. Gupta argued:
“This article is a prototype of Section 37 of the Government of
India Act which says that a Bill or amendment providing for
imposing or increasing a tax or borrowing money, etc. shall
not be introduced or moved except on the recommendation of
the Governor-General. This means that the whole Bill need
not be a money Bill: it may contain other provisions, but if
there is any provision about taxation or borrowing, etc. It will
come under this Section 37, and the recommendation of the
Governor-General is necessary. Now article 90 says that a
Bill shall be deemed to be a money Bill if it contains only
provisions dealing with the imposition, regulation, etc., of
any tax or the borrowing of money, etc. This can mean
that if there is a Bill which has other provisions and also
a provision about taxation or borrowing etc., it will not
become a money Bill. If that is the intention I have
nothing to say; but that if that is not the intention I must
say the word "only" is dangerous, because if the Bill
does all these things and at the same time does
something else also it will not be a money Bill. I do not
know what the intention of the Drafting Committee is but I
think this aspect of the article should be borne in mind.”161
(Emphasis supplied)Another member Naziruddin Ahmad also emphasized on the deletion of the
word “only”. The concern of these two members was that the word “only”
restricts the scope of a Bill being passed as a Money Bill. Their apprehension
was that if a Bill has other provisions which are unrelated to the clauses
mentioned in draft Article 90, the Bill would not qualify to be a Money Bill in
view of the word “only”. The amendment suggested by these members was
listed to be put to vote on a later date. The amendment was rejected when it
was put to vote on 8 June 1949. The framers of the Indian Constitution
consciously rejected the said amendment.
161 Constituent Assembly Debates (20 May 1949)
153
PART E98 When a Bill is listed as a Money Bill, it takes away the power of the
Rajya Sabha to reject or amend the Bill. The Rajya Sabha can only make
suggestions to a Money Bill, which are not binding on the Lok Sabha. The
Constitution makers would have been aware about the repercussions of a Bill
being introduced as a Money Bill. As the role of the Rajya Sabha is limited in
the context of Money Bills, the scope of what constitutes a Money Bill was
restricted by adopting the word “only” in Draft Article 90. A Bill to be a Money
Bill must not contain any provision which falls outside clauses (a) to (g) of
Article 110(1). The Constitution has carefully used the expression “dealing
with” in Article 110 (1) and not the wider legislative form “related to”. A Bill,
which has both − certain provisions which fall within sub-clauses (a) to (g) of
Article 110(1) and other provisions which fall outside will not qualify to be a
Money Bill. It is for this reason that there cannot also be any issue of the
severability of the provisions of a Bill, which has certain provisions relating to
sub-clauses (a) to (g) of Article 110(1), while also containing provisions which
fall beyond. Any other interpretation would result in rewriting the Constitution.
If a Bill contains provisions which fall outside sub-clauses (a) to (g), it is not a
Money Bill. The Rajya Sabha is entitled as part of its constitutional function to
legislative participation. The entirety of the Bill cannot be regarded as a Money
Bill, once it contains any matters which fall beyond sub-clauses (a) to (g).
Once that is the position, it could be impossible to sever those parts which fall
within sub-clauses (a) to (g) and those that lie outside. The presence of
matters which travel beyond sub-clauses (a) to (g) has consequences in terms
154
PART Eof the nature of the Bill and the legislative participation of the Rajya Sabha. If
the constitutional function of the Rajya Sabha has been denuded on the
hypothesis that this Bill was a Money Bill, the consequence of a finding in
judicial review that the Bill is not a Money Bill must follow. Any other
construction will reduce bicameralism to an illusion.
This interpretation is also supported by the judgment of a Bench of seven
judges of this Court in Krishna Kumar Singh v State of Bihar162, where it
held that the ordinance making power conferred upon the President and the
Governors is limited by the requirements set out by Articles 123 and 213. This
Court had held:
“59…The constitutional conferment of a power to frame
ordinances is in deviation of the normal mode of legislation
which takes place through the elected bodies comprising of
Parliament and the state legislatures. Such a deviation is
permitted by the Constitution to enable the President and
Governors to enact ordinances which have the force and
effect of law simply because of the existence of
circumstances which can brook no delay in the formulation of
legislation. In a parliamentary democracy, the government is
responsible collectively to the elected legislature. The
subsistence of a government depends on the continued
confidence of the legislature. The ordinance making power
is subject to the control of the legislature over the
executive. The accountability of the executive to the
legislature is symbolised by the manner in which the
Constitution has subjected the ordinance making power
to legislative authority. This, the Constitution achieves by
the requirements of Article 213...”163 (Emphasis supplied)99 The authority of the Lok Sabha to pass a Money Bill is based on the
requirements set out under Article 110. The framers of the Indian Constitution
162 (2017) 3 SCC 1
163 Ibid, at page 61155
PART Edeliberately restricted the scope of Article 110(1) to ensure that the provision
is not an avenue to supersede the authority of the Rajya Sabha. The intention
of the Constitution makers is clear. The Lok Sabha cannot introduce and pass
a legislative measure in the garb of a Money Bill, which could otherwise have
been amended or rejected by the Rajya Sabha. Bicameralism is a founding
value of our democracy. It is a part of the basic structure of the Constitution.
Introduction and passing of a Bill as a Money Bill, which does not qualify to be
a Money Bill under Article 110(1) of the Constitution, is plainly
unconstitutional. The Lok Sabha is not entrusted with the entire authority of
Parliament. The Lok Sabha, the Rajya Sabha and the President together
constitute the Parliament of India. The Lok Sabha is a body of elected
representatives and represents the aspirations of citizens. Yet, like every
constitutional institution, it is part of this basic structure of the Constitution. A
political party or a coalition which holds the majority in the Lok Sabha cannot
subvert the working of the Constitution, against which Dr B R Ambedkar had
warned164 in the Constituent Assembly. A ruling government has to work
within constitutional parameters and has to abide by constitutional morality.
100 The Constitution of India is not a mere parchment of paper. It was
written with the vision of those who gave blood and sweat to freedom: political
personalities, social reformers and constitution framers. It symbolises a faith in
institutions, justice and good governance. That vision cannot be belied. The
164 Constituent Assembly Debates (4 November, 1948). Dr Ambedkar had remarked: “… it is perfectly possible to
pervert the Constitution, without changing its form by merely changing the form of the administration and to
make it inconsistent and opposed to the spirit of the Constitution.”156
PART ESpeaker of the Lok Sabha has an onerous constitutional duty to ensure that a
Bill, which is not a Money Bill is not passed as a Money Bill. The Speaker of
the Lok Sabha, the Chairman of the Rajya Sabha, the members of the Lok
Sabha and the Rajya Sabha, and the President need to work in constitutional
solidarity to ensure that no provision of the Constitution is diluted or subverted.
101 The Aadhaar Act was passed as a Money Bill. The provisions of the Act
need to be analysed to determine whether the Act is a Money Bill.
The Preamble of the Act states that it is:
“An Act to provide for, as a good governance, efficient,
transparent, and targeted delivery of subsidies, benefits and
services, the expenditure for which is incurred from the
Consolidated Fund of India, to individuals residing in India
through assigning of unique identity numbers to such
individuals and for matters connected therewith or incidental
thereto.”The Preamble focuses on the delivery of subsidies, benefits and services for
which the expenditure is borne from the Consolidated Fund of India. But the
essential issue is whether the Act confines itself to matters which fall within
the ambit of Article 110.
102 Section 3 entitles every resident165 in India to obtain an Aadhaar
number by submitting his or her demographic information, by undergoing the
process of enrolment. Section 2(m) defines “enrolment” as the process to
165 Section 2(v) provides: “resident” means an individual who has resided in India for a period or periods
amounting in all to one hundred and eighty-two days or more in the twelve months immediately preceding
the date of application for enrolment.157
PART Ecollect demographic and biometric information from individuals by the enrolling
agencies for the purpose of issuing Aadhaar numbers to such individuals.
After receiving the demographic and biometric information of the individual,
the Unique Identification Authority of India (UIDAI) would verify the information
and shall issue an Aadhaar number to such an individual.166 Section 4(3)
provides that the Aadhaar number may be accepted as proof of identity for
“any purpose”. Section 5 requires UIDAI to take special measures to issue
Aadhaar numbers to “women, children, senior citizens, persons with disability,
unskilled and unorganised workers, nomadic tribes or to such other persons
who do not have any permanent dwelling house and such other categories of
individuals”. Under Section 6, UIDAI may require Aadhaar number holders to
update their demographic information and biometric information, from time to
time so as to ensure continued accuracy of their information in the Central
Identities Data Repository (“CIDR”). The Aadhaar Act defines CIDR as a
centralised database containing all Aadhaar numbers issued to Aadhaar
number holders along with the corresponding demographic information and
biometric information of such individuals and other related information.167
103 Section 7 requires proof of an Aadhaar number as a necessary
condition to avail subsidies, benefits and services, for which the expenditure is
borne from the Consolidated Fund of India. The proviso to Section 7 states
that if an Aadhaar number is not assigned to an individual, the individual shall
166 Section 3(3), Aadhaar Act
167 Section 2(h), Aadhaar Act158
PART Ebe offered alternate and viable means of identification for delivery of the
subsidy, benefit or service. Section 8(1) requires UIDAI to perform
authentication168 of the Aadhaar number of an Aadhaar number holder, in
relation to his or her biometric information or demographic information
submitted by any requesting entity169. Under Section 8(2), a requesting entity
is required to obtain the consent of an individual before collecting his or her
identity information for the purposes of authentication. The requesting entity
must ensure that the identity information of an individual collected by it is only
used for submission to the CIDR for authentication. Section 8(3) requires a
requesting entity to inform the individual submitting identity information for
authentication certain details with respect to authentication.
104 Chapter IV of the Act deals with UIDAI. Section 11 establishes UIDAI as
the body responsible for the processes of enrolment and authentication and
for performing functions assigned to it under the Act. The Act provides for the
composition of UIDAI170, qualifications of its members171, terms of office172 of
its chairperson and members, their removal173 and functions174. Section 23,
which deals with the powers and functions of UIDAI, authorizes it to develop
the policy, procedure and systems for issuing Aadhaar numbers to individuals
168 Section 2(c) provides: “authentication” means the process by which the Aadhaar number alongwith
demographic information or biometric information of an individual is submitted to the Central Identities Data
Repository for its verification and such Repository verifies the correctness, or the lack thereof, on the basis of
information available with it.169 Section 2 (u) provides: “requesting entity” means an agency or person that submits the Aadhaar number, and
demographic information or biometric information, of an individual to the Central Identities Data Repository for
authentication
170 Section 12, Aadhaar Act
171 Section 13, Aadhaar Act
172 Section 14, Aadhaar Act
173 Section 15, Aadhaar Act
174 Section 17, Aadhaar Act159
PART Eand to perform authentication. Section 23(h) states that UIDAI has the power
to specify the “manner of use of Aadhaar numbers” for the purposes of
providing or availing of various subsidies, benefits, services and “other
purposes” for which Aadhaar numbers may be used. Under Section 23(3),
UIDAI may enter into a Memorandum of Understanding or agreement with the
Central Government or State Governments or Union territories or other
agencies for the purpose of performing any of the functions in relation to
collecting, storing, securing or processing of information or delivery of
Aadhaar numbers to individuals or performing authentication.
105 Chapter V deals with grants, accounts and audit and annual reports of
UIDAI. Section 25 provides that the fees or revenue collected by UIDAI shall
be credited to the Consolidated Fund of India. Chapter VI deals with protection
of information collected from individuals for authentication. Section 28(3)
requires UIDAI to take all necessary measures to ensure that the information
in its possession or control, including information stored in the CIDR, is
secured and protected against access, use or disclosure (not permitted under
the Act or the regulations), and against accidental or intentional destruction,
loss or damage. Section 29 imposes restrictions on sharing of core biometric
information, collected or created under the Act. Section 32(2) entitles every
Aadhaar number holder to obtain his or her authentication record in such
manner as may be specified by regulations. Section 33 provides for disclosure
of information pursuant to a court order or in the interest of national security.
160
PART E106 Chapter VII of the Act (Sections 34 to 47) provides for offences and
penalties. Section 34 provides for penalty for impersonation at the time of
enrolment. Section 35 provides a penalty for impersonation of an Aadhaar
number holder by changing demographic or biometric information. Under
Section 37, a penalty for disclosing identity information (which was collected in
the course of enrolment or authentication) is provided. Section 38 provides a
penalty for unauthorised access to the CIDR. Section 39 imposes a penalty for
tampering with data in the CIDR. Under Sections 40 and 41, a penalty has
been provided for requesting entities and enrolment agencies, in case they act
in contravention of the obligations imposed upon them under the Act. Section
44 indicates that the provisions of the Act would apply to any offence or
contravention committed outside India by any person, irrespective of
nationality.
107 Section 48 empowers the Central Government to supersede UIDAI in
certain situations. Section 50 states that UIDAI is bound by directions on
questions of policy given by the Central Government. Section 51 authorizes
the UIDAI to delegate to any member, officer of the Authority or any other
person, such of its powers and functions (except the power under section 54)
as it may deem necessary. Section 53 empowers the Central Government to
make rules to carry out the provisions of the Act. Under Section 54(2)(m),
UIDAI can make regulations providing the manner of use of Aadhaar numbers
for the purposes of providing or availing of various subsidies, benefits,
161
PART Eservices and “other purposes” for which Aadhaar numbers may be used.
Section 57 authorizes the State or any body corporate or person to use an
Aadhaar number for establishing the identity of an individual “for any purpose”,
subject to the procedure and obligations under Section 8 and Chapter VI of
the Act. Section 59 seeks to validate the actions taken by the Central
Government pursuant to the notifications dated 28 January 2009 and 12
September 2015, and prior to the enactment of the Aadhaar Act.
This broad description of the provisions of the Aadhaar Act indicates that the
Act creates a framework for obtaining a unique identity number - the Aadhaar
number - by submitting demographic and biometric information and
undergoing the process of enrolment and authentication. The Act indicates
that the Aadhaar number may be accepted as proof of identity for any
purpose. The Act, in other words, creates a platform for one pan-India and
nationally acceptable identity. It creates a central database (CIDR) for storage
of identity information collected from individuals. Sections 3 to 6 specifically
deal with the process of enrolment. Section 3 entitles every resident to hold
an Aadhaar number. Section 4(3) states that the Aadhaar number so
generated may be used as a proof of identity “for any purpose”. The primary
object of the legislation is to create one national identity for every resident. It
seeks to do so by legislating a process for collecting demographic and
biometric information. The Act has created an authority to oversee the
fulfilment of its provisions. In its primary focus and initiatives, the law traverses
162
PART Ebeyond the territory reserved by Article 110 for a Money Bill. Sections 7 to 10
deal with authentication of information submitted at the time of enrolment.
Section 8 creates obligations on requesting entities to ensure that consent
is obtained from individuals before collecting their identity information and
that the identity information of such individual is only used for submission to
the CIDR for authentication. Sections 11 to 23 create a statutory authority
(UIDAI) and assign responsibilities to it for the processes of enrolment and
authentication and to discharge other functions assigned to it under the Act,
including developing the policy, procedure and systems for issuing Aadhaar
numbers to individuals. Section 23(2)(h) provides that apart from availing of
various subsidies, benefits, and services, Aadhaar numbers may be used for
“other purposes”. Sections 28 to 33 deal with protection of information, and
provide for security and confidentiality of identity information and restrictions
on sharing of information. Section 28 imposes obligations on the UIDAI to
ensure the security and confidentiality of identity information and
authentication records of individuals, which are in its possession or control,
including information stored in CIDR. Disclosure of identity information and
authentication records can be made under Section 33, pursuant to a court
order (not below the rank of District Judge) or in the interest of national
security in pursuance of a direction of an officer (not below the rank of Joint
Secretary to the Government of India). Sections 34 to 47 deal with substantive
offences and penalties created under the Act. Sections 54(2)(m) states that
regulations can be made by UIDAI specifying the manner of use of Aadhaar
163
PART Enumbers for the purposes of providing or availing of various subsidies,
benefits, services and “other purposes” for which Aadhaar numbers may be
used. Section 57 authorizes the use of Aadhaar number by anyone (whether
by the State or any body corporate or person under law or contract) for
establishing the identity of an individual “for any purpose”.
108 Section 7 makes the use of the Aadhaar number mandatory for availing
subsidies, benefits or services, for which expenditure is incurred from the
Consolidated Fund of India. The scheme of the Act deals with several aspects
relating to the unique identity number. The unique identity is capable of being
used for multiple purposes: availing benefits, subsidies and services, for
which expenses are incurred from the Consolidated Fund of India, is just one
purpose, among others. The Preamble to the Aadhaar Act indicates that the
main objective was to achieve an efficient and “targeted delivery of subsidies,
benefits and services, the expenditure for which is incurred from the
Consolidated Fund of India”. The substantive provisions of the Act are,
however, not confined to the object specified in the Preamble. Indeed, they
travel far beyond the boundaries of a money bill under Article 110(1). The
enrolment on the basis of demographic and biometric information, generation
of Aadhaar number, obtaining consent of individuals before collecting their
individual information, creation of a statutory authority to implement and
supervise the process, protection of information collected during the process,
disclosure of information in certain circumstances, creation of offences and
164
PART Epenalties for disclosure or loss of information, and the use of the Aadhaar
number for any purpose lie outside the ambit of Article 110. These themes are
also not incidental to any of the matters covered by sub-clauses (a) to (f) of
Article 110(1). The provisions of Section 57 which allow the use of an Aadhaar
number by bodies corporate or private parties for any purpose do not fall
within the ambit of Article 110. The legal framework of the Aadhaar Act
creates substantive obligations and liabilities which have the capability of
impacting on the fundamental rights of residents.
109 A Bill, to be a Money Bill, must contain only provisions which fall within
the ambit of the matters mentioned in Article 110. Section 7 of the Act allows
the Aadhaar number to be made mandatory for availing of services, benefits
and subsidies for which expenditure is incurred from the Consolidated Fund of
India. Under clause (e) of Article 110(1) the money bill must deal with the
declaring of any expenditure to be expenditure charged on the Consolidated
Fund of India (or increasing the amount of expenditure). Significantly, Section
7 does not declare the expenditure incurred on services, benefits or subsidies
to be a charge on the Consolidated Fund of India. What Section 7 does is to
enact a provision allowing for Aadhaar to be made mandatory, in the case of
services, benefits or subsidies which are charged to the Consolidated Fund.
Section 7 does not declare them to be a charge on the Consolidated Fund. It
provides that in the case of services, benefits or subsidies which are already
charged to the Consolidated Fund, Aadhaar can be made mandatory to avail
165
PART Eof them. Section 7, in other words, is a provision for imposing a requirement of
authentication and not declaring any expenditure to be a charge on the
Consolidated Fund of India. Hence, even Section 7 is not within the ambit of
Article 110(1)(e). However, even if Section 7 were to be held to be referable to
Article 110, that does not apply to the other provisions of the Act. The other
provisions of the Act do not in any event fall within the ambit of Article 110(1).
Introducing one provision – Section 7 – does not render the entirety of the Act
a Money Bill where its other provisions travel beyond the parameters set out in
Article 110. Section 57 of the Act in particular (which creates a platform for the
use of the Aadhaar number by the private entities) can by no stretch of logic
be covered under Article 110(1). The other provisions of the Act do not deal
with that which has been provided under Sub-clauses (a) to (g) of Article 110.
As regards the ‘incidental’ provision under Article 110(1)(g), the provisions of
the Aadhaar Act are not “incidental to any of the matters specified in sub-
clauses (a) to (f)”. Even if it is assumed that there is one provision (Section 7)
which is relatable to sub-clause (e) of Article 110(1), the other provisions of
the Act are unrelated to Article 110(1).
110 This Court must also advert to the legislative history prior to the
enactment of the Aadhaar Act. An attempt to provide a legislative framework
governing the Aadhaar project was first made by introducing the National
Identification Authority of India Bill, 2010 (“NIA Bill”). The NIA Bill was
166
PART Eintroduced in the Rajya Sabha on 3 December 2010. The Preamble of the Bill
indicated its purpose:
“A Bill to provide for the establishment of the National
Identification Authority of India for the purpose of issuing
identification numbers to individuals residing in India and to
certain other classes of individuals and manner of
authentication of such individuals to facilitate access to
benefits and services to such individuals to which they are
entitled and for matters connected therewith or incidental
thereto.”The main objective of the Bill was to establish the National Identification
Authority of India to issue unique identification numbers (called ‘Aadhaar’) to
residents of India and to any other category of people for the purpose of
facilitating access to benefits and services. Chapter II (Clauses 3 to 10) of the
Bill dealt with Aadhaar numbers. Clause 3 of the Bill entitled every resident to
obtain an Aadhaar number on providing demographic and biometric
information to the Authority in such manner as may be specified. Clause 4(3)
stated that an Aadhaar number shall be accepted, subject to authentication,
as proof of identity of the Aadhaar number holder. Chapter III (Clauses 11 to
23) dealt with the National Identification Authority of India. Clause 11 provided
for establishment of the Authority by the Central Government. Clause 23
empowered the Authority to develop the policy, procedure and systems for
issuing Aadhaar numbers to residents and to perform authentication. Clause
23(2)(h) stated that the Authority may specify the usage and applicability of
the Aadhaar number for delivery of various benefits and services.
Establishing, operating and maintaining of the Central Identities Data
Repository (CIDR) by the Authority was provided under Clause 23(2)(j).
167
PART EChapter IV (Clauses 24 to 27) provide for grants, accounts and audit and
annual reports related to the Authority. Clause 25 stated that the fees or
revenue collected by the Authority shall be credited to the Consolidated Fund
of India and the entire amount would be transferred to the Authority. Chapter
V (Clauses 28 and 29) dealt with creation of an Identity Review Committee
and its functions. The functions of the Review Committee included
ascertaining the extent and pattern of usage of Aadhaar numbers across the
country and preparing a report annually along with recommendations. Chapter
VI (Clauses 30 to 33) dealt with the protection of individual identity information
and authentication records. Clause 30(1) required the Authority to ensure the
security and confidentiality of identity information and authentication records of
individuals. Clause 30(2) required the Authority to take measures (including
security safeguards) to ensure that the information in the possession or
control of the Authority (including information stored in the Central Identities
Data Repository) is secured and protected against any loss or unauthorised
access or use or unauthorised disclosure. Clause 33 stated that individual
information may be disclosed pursuant a court order or in the interest of
national security. Chapter VII (Clauses 34 to 46) created offences and
penalties under the law. Clause 47 empowered the Central Government to
supersede the Authority. Clause 50 authorized the Authority to delegate to any
Member, officer of the Authority or any other person such of its powers and
functions (except the power under Clause 53). Clause 57 sought to validate
168
PART Eactions taken by the Central Government under the Planning Commission’s
notification of 2009.
111 Since the UID programme involved complex issues, the NIA Bill was
referred, on 10 December 2010, to the Standing Committee on Finance,
chaired by Mr Yashwant Sinha, for examination and report. The Standing
Committee comprised of 21 members from the Lok Sabha and 10 members
from the Rajya Sabha. The Standing Committee submitted its Report175 on 11
December 2011. The Report raised several objections to the Bill, which
included those summarised below:
(i) Since law making was underway, the bill being pending, any executive
action is as violative of Parliament’s prerogatives as promulgation of an
ordinance while one of the Houses of Parliament is in session;
(ii) While the country is facing a serious problem of illegal immigrants and
infiltration from across the borders, the National Identification Authority of
India Bill, 2010 proposes to entitle every resident to obtain an Aadhaar
number, apart from entitling such other category of individuals as may be
notified from time to time. This will, it is apprehended, make even illegal
immigrants entitled for an Aadhaar number;
(iii) The issue of a unique identification number to individuals residing in India
and other classes of individuals under the Unique Identification (UID)
175Forty-Second Report, Standing Committee on Finance (2011-12), available at
169
PART EScheme is riddled with serious lacunae and concern areas. For example,
the full or near full coverage of marginalized sections for issuing Aadhaar
numbers could not be achieved mainly due to two reasons viz. (a) the
UIDAI doesn’t have the statistical data relating to them; and (b) estimated
failure of biometrics is expected to be as high as 15% because a large
chunk of population is dependent on manual labour;
(iv) Despite the presence of serious differences of opinion within the
Government on the UID scheme, the scheme continues to be
implemented in an overbearing manner without regard to legalities and
other social consequences;
(v) The UID scheme lacks clarity on many issues including even the basic
purpose of issuing an “Aadhaar” number. Although the scheme claims
that obtaining an Aadhaar number is voluntary, an apprehension has
developed in the minds of people that in future, services / benefits
including food entitlements would be denied in case they do not an have
an Aadhaar number;
(vi) It is also not clear as to whether possession of an Aadhaar number would
be made mandatory in future for availing of benefits and services. Even if
the Aadhaar number links entitlements to targeted beneficiaries, it may
not ensure that beneficiaries have been correctly identified. Thus, the
present problem of proper identification would persist;
170
PART E(vii) Though there are significant differences between the identity system of
other countries and the UID scheme, yet there are lessons from the
global experience to be learnt before proceeding with the implementation
of the UID scheme, which the Ministry of Planning has ignored
completely;
(viii) Considering the huge database and possibility of misuse of information,
the enactment of a national data protection law is a pre-requisite for any
law that deals with large scale collection of information from individuals
and its linkages across separate databases. In the absence of data
protection legislation, it would be difficult to deal with issues like access to
and misuse of personal information, surveillance, profiling, linking and
matching of data bases and securing confidentiality of information;
(ix) The Standing Committee strongly disapproved of the hasty manner in
which the UID scheme was approved. Unlike many other schemes /
projects, no comprehensive feasibility study, which ought to have been
done before approving such an expensive scheme, was done involving all
aspects of the UID scheme including a cost-benefit analysis, comparative
costs of Aadhaar numbers and various existing forms of identity, financial
implications and prevention of identity theft, for example, using hologram
enabled ration cards to eliminate fake and duplicate beneficiaries;
(x) The UID scheme may end up being dependent on private agencies,
despite contractual agreements made by the UIDAI with several private
171
PART Evendors. As a result, the beneficiaries may be forced to pay over and
above the charges to be prescribed by the UIDAI for availing of benefits
and services, which are now available free of cost;
(xi) The scheme is full of uncertainty in technology as a complex scheme is
built up on untested and unreliable technology and on several
assumptions. It is also not known as to whether the proof of concept
studies and assessment studies undertaken by the UIDAI have explored
the possibilities of maintaining accuracy to a large level of enrolment of
1.2 billion people; and
(xii) The Committee felt that entrusting the responsibility of verification of
information of individuals to the registrars to ensure that only genuine
residents get enrolled into the system may have far reaching
consequences for national security. Given the limitation of any
mechanism such as a security audit by an appropriate agency that would
be set up for verifying the information, it is not evident as to whether a
complete verification of information of all Aadhaar number holders is
practically feasible; and whether it would deliver the intended results
without compromising national security.
With these apprehensions about the UID scheme, the Standing Committee on
Finance categorically conveyed that the National Identification Authority of
India Bill, 2010 was not acceptable. The Committee urged the Government to
172
PART Ereconsider and review the UID scheme and the proposals contained in the Bill
and bring forth a fresh legislation before Parliament. Ultimately, the NIA Bill
was withdrawn from the Rajya Sabha on 3 March, 2016.
112 A comparison of the Aadhaar Act 2016 and NIA Bill 2010 reveals that
both have a common objective and framework − establishing a system of
unique identity numbers, which would be implemented and monitored by a
statutory authority. The NIA Bill was not a Money Bill. It was never passed by
the Rajya Sabha. The Bill was scrutinized by a Standing Committee on
Finance, which had 10 members from the Rajya Sabha and 21 from the Lok
Sabha. The NIA Bill did not contain a provision, similar to Section 7 of the
Aadhaar Act. Yet, as discussed earlier, the presence of Section 7 does not
make the Aadhaar Act a Money Bill. Introducing the Aadhaar Act as a Money
Bill deprived the Rajya Sabha of its power to reject or amend the Bill. Since
the Aadhaar Act in its current form was introduced as a Money Bill in the Lok
Sabha, the Rajya Sabha had no option other than of making
recommendations to the Bill. The recommendations made by the Rajya Sabha
(which also included deletion of Section 57) were rejected by the Lok Sabha.
The legislative history is a clear pointer to the fact that the subsequent
passage of the Bill as a Money Bill by-passed the constitutional authority of
the Rajya Sabha. The Rajya Sabha was deprived of its legitimate
constitutional role by the passage of the Bill as a Money Bill in the Lok Sabha.
173
PART E113 The Court must also address the contention of the Respondents that
the Aadhaar Act is “in pith and substance” a Money Bill. The learned Attorney
General for India has submitted that though the Act has ancillary provisions,
its main objective is the delivery of subsidies, benefits and services flowing out
of the Consolidated Fund of India and that the other provisions are related to
the main purpose of the Act which was giving subsidies and benefits. It has
been submitted that the real test to be applied in the present dispute is the
doctrine of pith and substance.
114 This Court has applied the doctrine of pith and substance when the
legislative competence of a legislature to enact a law is challenged. The
doctrine is applied to evaluate whether an enactment which is challenged falls
within an entry in one of the three Lists in the Seventh Schedule over which
the legislature has competence under Article 246 of the Constitution. The
Seventh Schedule to the Constitution distributes legislative powers between
the Union and the States. When a law enacted by a legislature is challenged
on the ground of a lack of legislative competence, the doctrine of pith and
substance is invoked. Under the doctrine, the law will be valid if in substance,
it falls within the ambit of a legislative entry on which the legislature is
competent to enact a law, even if it incidentally trenches on a legislative entry
in a separate list. The constitutional rationale for the application of this
174
PART Edoctrine has been explained in a Constitution Bench decision of this Court in
A S Krishna v State of Madras176:
“8…But then, it must be remembered that we are construing a
federal Constitution. It is of the essence of such a
Constitution that there should be a distribution of the
legislative powers of the Federation between the Centre
and the Provinces. The scheme of distribution has varied
with different Constitutions, but even when the Constitution
enumerates elaborately the topics on which the Centre and
the States could legislate, some overlapping of the fields of
legislation is inevitable. The British North America Act, 1867,
which established a federal Constitution for Canada,
enumerated in Sections 91 and 92 the topics on which the
Dominion and the Provinces could respectively legislate.Notwithstanding that the lists were framed so as to be
fairly full and comprehensive, it was not long before it
was found that the topics enumerated in the two sections
overlapped, and the Privy Council had time and again to
pass on the constitutionality of laws made by the
Dominion and Provincial legislatures. It was in this
situation that the Privy Council evolved the doctrine, that
for deciding whether an impugned legislation was intra
vires, regard must be had to its pith and substance. That
is to say, if a statute is found in substance to relate to a
topic within the competence of the legislature, it should
be held to be intra vires, even though it might incidentally
trench on topics not within its legislative competence...”
(Emphasis supplied)The decision of a three judge Bench of this Court in State of Maharashtra v
Bharat Shanti Lal Shah177 has summarized the process of reasoning which
must be followed by the Court while applying the doctrine of pith and
substance. The Court held:
“43…If there is a challenge to the legislative competence the
courts will try to ascertain the pith and substance of such
enactment on a scrutiny of the Act in question. In this
process, it is necessary for the courts to go into and
examine the true character of the enactment, its object,
its scope and effect to find out whether the enactment in176 1957 SCR 399
177(2008) 13 SCC 5175
PART Equestion is genuinely referable to the field of legislation
allotted to the respective Legislature under the
constitutional scheme. Where a challenge is made to the
constitutional validity of a particular State Act with reference
to a subject mentioned in any entry in List I, the court has to
look to the substance of the State Act and on such analysis
and examination, if it is found that in the pith and substance, it
falls under an entry in the State List but there is only an
incidental encroachment on topics in the Union List, the State
Act would not become invalid merely because there is
incidental encroachment on any of the topics in the Union
List.”178 (Emphasis supplied )115 The doctrine of pith and substance is mainly used to examine whether
the legislature has the competence to enact a law with regard to any of the
three Lists provided under the Constitution. It cannot be applied to sustain as
a Money Bill, a Bill which travels beyond the constitutional boundaries set out
by Article 110 Whether a Bill is validly passed as a Money Bill has nothing to
do with the legislative competence of the legislature under Article 246 of the
Constitution. Whether a Bill is a Money Bill has to be tested within the
boundaries of Article 110. The submission of the Attorney General boils down
to this: ‘ignore the expression “only provisions dealing with all or any of the
following matters” and hold the Bill to be a Money Bill by treating Section 7 as
its dominant provision’. This cannot be accepted. This would ignore the
express and clear language of Article 110. As we have emphasised earlier,
the submission of the Attorney General requires the court to transpose the
word “only” from its present position to a place before “if”. That would be to
rewrite the Constitution to mean that a Bill would be a Money Bill if it
contained some provisions which fall under sub-clauses (a) to (g). The
178 Ibid, at page 21
176
PART EConstitution says to the contrary: a Bill is a Money Bill if it contains “only
provisions” dealing with one or more of the matters set out in sub-clauses (a)
to (g). Looked at in another way, all the provisions of the Aadhaar Act (apart
from Section 7) cannot be read as incidental to Section 7. Such a view is
belied by a plain reading of the Act, as indicated earlier. Moreover, we have
also indicated reasons why even Section 7 cannot be held to be referable to
Article 110. Section 7 does not deal with the declaring of any expenditure as
expenditure charged to the Consolidated Fund. Section 7 allows for making
Aadhaar mandatory for availing of subsidies, benefits or services the
expenditure incurred on which is charged to the Consolidate Fund. Section 7
does not charge any expenditure to the Consolidated Fund. It deals with
making Aadhaar mandatory.
In support of their contention, the Respondents have also relied upon a two
judge Bench decision in Union of India v Shah Goverdhan L Kabra
Teachers’ College179 to submit that the doctrine of pith and substance can be
used in any context. The Court held:
“7. It is further a well-settled principle that entries in the
different lists should be read together without giving a narrow
meaning to any of them. Power of the Parliament as well as
the State legislature are expressed in precise and definite
terms. While an entry is to be given its widest meaning but it
cannot be so interpreted as to over-ride another entry or
make another entry meaningless and in case of an apparent
conflict between different entries, it is the duty of the court to
reconcile them. When it appears to the Court that there is
apparent overlapping between the two entries the doctrine of
"pith and substance" has to be applied to find out the true
nature of a legislation and the entry with which it would fall. In179 (2002) 8 SCC 228
177
PART Ecase of conflict between entries in List I and List II, the same
has to be decided by application of the principle of "pith and
substance". The doctrine of "pith and substance" means
that if an enactment substantially falls within the powers
expressly conferred by the Constitution upon the
legislature which enacted it, it cannot be held to be
invalid, merely because it incidentally encroaches on
matters assigned to another legislature. When a law is
impugned as being ultra-vires of the legislative competence,
what is required to be ascertained is the true character of the
legislation. If on such an examination it is found that the
legislation is in substance one on a matter assigned to the
legislature then it must be held to be valid in its entirety even
though it might incidentally trench on matters which are
beyond its competence. In order to examine the true
character of the enactment, the entire Act, its object and
scope and effect, is required to be gone into. The question of
invasion into the territory of another legislation is to be
determined not by degree but by substance. The doctrine of
"pith and substance' has to be applied not only in cases
of conflict between the powers of two legislatures but in
any case where the question arises whether a legislation
is covered by particular legislative power in exercise of
which it is purported to be made.”180 (Emphasis supplied)The decision is of no assistance to the submission in the present dispute. The
observations made by the Court are in relation to the power to legislate under
Article 246 of the Constitution. It is unconnected to the question of a Money
Bill. Therefore, the argument that the Aadhaar Act is “in pith and substance” a
Money Bill is rejected.
116 Introducing the Aadhaar Act as a Money Bill has bypassed the
constitutional authority of the Rajya Sabha. The passage of the Aadhaar Act
as a Money Bill is an abuse of the constitutional process. It deprived the Rajya
Sabha from altering the provisions of the Bill by carrying out amendments. On
the touchstone of the provisions of Article 110, the Bill could not have been
180 Ibid, at pages 233-234178
PART Ecertified as a Money Bill. In his last address to the Constituent Assembly on
25 November 1949, Dr B R Ambedkar had stated:
“The working of a Constitution does not depend wholly upon
the nature of the Constitution. The Constitution can provide
only the organs of State such as the Legislature, the
Executive and the Judiciary. The factors on which the working
of those organs of the State depends are the people and the
political parties they will set up as their instruments to carry
out their wishes and their politics.”181117 The Rajya Sabha has an important role in the making of laws.
Superseding the authority of the Rajya Sabha is in conflict with the
constitutional scheme and the legitimacy of democratic institutions. It
constitutes a fraud on the Constitution. Passing of a Bill as a Money Bill, when
it does not qualify for it, damages the delicate balance of bicameralism which
is a part of the basic structure of the Constitution. The ruling party in power
may not command a majority in the Rajya Sabha. But the legislative role of
that legislative body cannot be obviated by legislating a Bill which is not a
Money Bill as a Money Bill. That would constitute a subterfuge, something
which a constitutional court cannot countenance. Differences in a democratic
polity have to be resolved by dialogue and accommodation. Differences with
another constitutional institution cannot be resolved by the simple expedient of
ignoring it. It may be politically expedient to do so. But it is constitutionally
impermissible. This debasement of a democratic institution cannot be allowed
to pass. Institutions are crucial to democracy. Debasing them can only cause
a peril to democratic structures.
181 Constituent Assembly (25 November 1949)
179
PART FThe Act thus fails to qualify as a Money Bill under Article 110 of the
Constitution. Since the Act was passed as a Money Bill, even though it does
not qualify to be so, the passage of the Act is an illegality. The Aadhaar Act is
in violation of Article 110 and therefore is liable to be declared
unconstitutional.
F Biometrics, Privacy and Aadhaar
“Any situation that allows an interaction between man and
machine is capable of incorporating biometrics”182118 The term ‘biometric’ is derived from the Greek nouns ‘βίος’ (life) and
‘μέτρον’ (measure) and means ‘measurement of living species’. 183 Biometric
technologies imply that “unique or distinctive human characteristics of a
person are collected, measured and stored for the automated verification of a
claim made by that person for the identification of that person.”184 These
systems thus identify or verify the identity or a claim of persons on the basis of
the automated measurement and analysis of their biological traits (such as
fingerprints, face and iris) or behavioral characteristics (such as signature and
voice).
182 Gary Roethenbaugh, (cited in A. Cavoukian, Privacy and Biometrics, Information and Privacy Commissioner,
Ontario, Canada, 1999, page 11, available at http://www.ipc.on.ca/images/Resources/pri- biom.pdf
183 Els J. Kindt, Privacy and Data Protection Issues of Biometric Applications: A Comparative Legal Analysis,Springer (2013)
184 Ibid.180
PART F119 The idea that parts of our body can be used to identify our unique
selves is not new. Prints of hand, foot and finger have been used since
ancient times because of their unique characteristics. Before the advent of
biometric systems, however, human characteristics were compared in a
manual way. Today’s biometric systems hence differ from manual verification
methods in that technology allows for automated comparison of human
characteristic(s) in place of a regime of manual verification that existed earlier.
It must be understood that biometric systems themselves do not identify
individuals. For identification, additional information which is already stored in
databases is needed since biometric systems can only compare information
which is already submitted.185 Integral to such a system is the matching of a
claim of identity with biometric data collected and stored earlier.
In general, biometric applications are referred to as systems which allow one
to authenticate claims. The verb ‘to authenticate’ can be described as ‘making
authentic, legally valid’.186 Originally, fingerprints were the most commonly
known and used biometric traits, but with improvements in technology,
multiple sources of biometric information have emerged. These include data
related to facial features, iris, voice, hand geometry and DNA. Each trait is
collected using different technologies and can be used for different purposes
185 Ibid.
186 Ibid.
181
PART Fseparately or in combination, to strengthen and improve the accuracy and
reliability of the identification process.187
In general, biometric information is developed by processing extractable key
features of an individual into an ‘electronic digital template’, which is then
encrypted and stored in a database. When an individual connects with the
system to verify his/her identity for any purpose, the information is used by
matching the ‘electronic digital template’ saved with the biometric information
presented, based on which comparison, the individual’s identity will be
confirmed or rejected. The intended purpose of biometric technology is to
confirm the identity of individuals through a “one to one” identification check.
This system compares a source of biometric data with existing data for that
specific person.
F.I Increased use of biometric technology
120 There had been an initial increase in the usage of biometric technology
in both developed and developing countries by both the private and the public
sector. However, despite the increased adoption of biometric technologies by
developed countries in the 1980s and 1990s, recent trends depict their
reluctance to deploy biometric technology - or at least mass storage of
biometric data - because of privacy concerns.188 Key instances included the
187Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013).
188Privacy International, Biometrics: Friend or foe of privacy?, available at
https://privacyinternational.org/sites/default/files/2017-11/Biometrics_Friend_or_foe.pdf182
PART Fscrapping of the National Identity Register and ID cards in the UK, and
Germany’s decision to reject a centralised database when deploying biometric
passports.189 By contrast, in developing countries there is a rise in the
deployment of biometric technology since it is being portrayed to citizens as a
means to establishing their legal identity and providing them access to
services, as well as a tool for achieving economic development. However, too
often these goals are prioritised at the expense of their right to privacy and
other human rights.190 Simon Davies, an eminent privacy expert, points out
that it is not an accident or coincidence that biometric systems are most
aggressively tried out with welfare recipients since they are not in a position to
resist the State-mandated intrusion.191
There has been a particular increase in the use of biometric technology in
identification programs in developing countries. This is because “biometrics
include a wide range of biological measures which are considered sufficiently
unique at a population level to allow individual identification with high rates of
accuracy”.192 Lack of formal identification and official identity documentation in
the developing world is a serious challenge which impedes the ability of
governments as well as development organisations to provide essential goods
and services to the populations they serve.193 Further, identification is also
189 Ibid
190 Ibid
191 Simon Davies, as cited in John D. Woodward, Biometric Scanning, Law Policy: Identifying the Concerns -Drafting the Biometric Blueprint, University of Pittsburgh Law Review, (1997)
192 Daniel M. L Storisteanu, Toby L. Norman, Alexandra Grigore and Alain B. Labrique, Can biometrics beat thedeveloping world’s challenges?, Biometric Technology Today (2016)
193 Ibid183
PART Fessential to the gathering of accurate data which is required for monitoring the
progress of government programmes.194 However, while biometric technology
brings many advantages, the flip side is that the same technology can also
lead to human rights violations:
“When adopted in the absence of strong legal frameworks
and strict safeguards, biometric technologies pose grave
threats to privacy and personal security, as their application
can be broadened to facilitate discrimination, profiling and
mass surveillance. The varying accuracy and failure rates of
the technology can lead to misidentification, fraud and civic
exclusion.”195121 The adoption of biometric technologies in developing countries in
particular poses unique challenges since the implementation of new
technologies in these countries is rarely preceded by the enactment of robust
legal frameworks. Assessments of countries where a legal mechanism to
regulate new technologies or protect data has followed as an afterthought
have shown that there exists a huge risk of mass human rights violations
where individuals are denied basic fundamental rights, and in extreme cases,
even their identity.196
122 Technology today brings with it tremendous power and is much like two
sides of a coin. When applied productively, it allows individuals around the
world to access information, express themselves and participate in local and
global discussions in real-time in ways previously thought unimaginable. The
194 Ibid
195 Privacy International, Biometrics, available at
196 Privacy International, Biometrics: Friend or foe of privacy?, available athttps://privacyinternational.org/sites/default/files/2017-11/Biometrics_Friend_or_foe.pdf
184
PART Fflip side is the concern over the abuse of new technology, including
biometrics, by the State and private entities by actions such as surveillance
and large-scale profiling. This is particularly acute, given the fact that
technological advancements have far outpaced legislative change. As a
consequence, the safeguards necessary to ensure protection of human rights
and data protection are often missing. The lack of regulatory frameworks, or
the inadequacy of existing frameworks, has societal and ethical consequences
and poses a constant risk that the concepts of privacy, liberty and other
fundamental freedoms will be misunderstood, eroded or devalued.197
123 Privacy has been recognized as a fundamental human right in various
national constitutions and numerous global and regional human rights treaties.
In today’s digital age, the right to privacy is “the cornerstone that safeguards
who we are and supports our on-going struggle to maintain our autonomy and
self-determination in the face of increasing state power.”198
124 The proliferation of biometric technology has facilitated the invasion of
individual privacy at an unprecedented scale. The raw information at the heart
of biometrics is personal by its very nature.199 The Aadhaar Act recognises
this as sensitive personal information. Biometric technology is unique in the
sense that it uses part of the human body or behaviour as the basis of
authentication or identification and is therefore intimately connected to the
197 Ibid
198 Privacy International, Biometrics: Friend or foe of privacy?, available at
https://privacyinternational.org/sites/default/files/2017-11/Biometrics_Friend_or_foe.pdf
199 Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013)185
PART Findividual concerned. While biometric technology raises some of the same
issues that arise when government agencies or private firms collect any
personal information about citizens, there are specific features that distinguish
biometric data from other personal data, making concerns about biometric
technology of particular importance with regard to privacy protection.200
125 There are two main groups of privacy- related interests that are directly
pertinent to the contemporary discussion on the ethical and legal implications
of biometrics.201 The first group falls under ‘informational privacy’ and is
concerned with control of personal information. The ability to control personal
information about oneself is closely related to the dignity of the individual, self-
respect and sense of personhood. The second interest group falls under the
rubric of ‘physical privacy’. This sense of privacy transcends the purely
physical and is aimed essentially at protecting the dignity of the human
person. It is a safeguard against intrusions into persons’ physical bodies and
spaces. Another issue is of property rights with respect to privacy, which
concerns the appropriation and ownership of interests in human personality. In
many jurisdictions, the basis of informational privacy is the notion that all
information about an individual is in some fundamental way their own
property, and it is theirs to communicate or retain as they deem fit.
200 Ibid
201 Ibid186
PART F126 The collection of most forms of biometric data requires some
infringement of the data subject’s personal space. Iris and fingerprint scanners
require close proximity of biometric sensors to body parts such as eyes, hands
and fingertips.
Even in the context of law enforcement and forensic identification, the use of
fingerprinting is acknowledged to jeopardise physical privacy. Many countries
have laws and regulations which are intended to regulate such measures, in
order to protect the individual’s rights against infringement by state powers
and law enforcement. However, biometrics for the purpose of authentication
and identification is different as they do not have a specific goal of finding
traces related to a crime but are instead conducted for the purpose of
generating identity information specific to an individual. This difference in
purpose actually renders the collection of physical biometrics a more serious
breach of integrity and privacy. It indicates that there may be a presumption
that someone is guilty until proven innocent. This would be contrary to
generally accepted legal doctrine that a person is innocent until proven guilty
and will bring a lot of innocent people into surveillance schemes.
127 Concerns about physical privacy usually take a backseat as compared
to concerns about informational privacy. The reason for this is that physical
intrusion resulting from the use of biometric technology usually results from
the collection of physical information. However, for some people of specific
187
PART Fcultural or religious backgrounds, even the mental harm resulting from
physical intrusion maybe quite serious.202
Another concern is that the widespread usage of biometrics substantially
undermines the right to remain anonymous.203 People desire anonymity for a
variety of reasons, including that it is fundamental to their sense of freedom
and autonomy. Anonymity may turn out to be the only tool available for
ordinary people to defend themselves against being profiled. Thus, it is often
argued that biometric technology should not be the appropriate choice of
technology as biometrics by its very nature is inconsistent with anonymity.
Given the manner in which personal information can be linked and identified
using biometric data, the ability to remain anonymous is severely diminished.
While some argue that “it is not obvious that more anonymity will be lost when
biometrics are used”, this argument may have to be evaluated in light of the
fact that there is no existing identifier that can be readily equated with
biometrics.204 No existing identifier can expose as much information as
biometric data nor is there any other identifier that is supposed to be so
universal, long-lasting and intimately linked as biometrics. To say that the use
of biometrics will not cause further loss of anonymity may thus be overly
optimistic. Semi-anonymity maybe possible, provided that the biometric
system is carefully designed from the inception.
202 Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013).
203 Ibid
204 Ibid188
PART FAnother significant change brought about by biometric technology is the
precipitous decline of ‘privacy by obscurity’, which is essentially “a form of
privacy afforded to individuals inadvertently by the inefficiencies of paper and
205
other legacy recordkeeping.” Now that paper records worldwide are givingway to more efficient digital record-keeping and identification, this form of
privacy is being extinguished, and sometimes without commensurate data
privacy protections put in place to remedy the effects of the changes.”206
128 Biometrically enhanced identity information, combined with
demographic data such as address, age and gender, among other data, when
used in increasingly large, automated systems creates profound changes in
societies, particularly in regard to data protection, privacy, and security.
Biometrics are at the very heart of identification systems. There are numerous
instances in history where the persecution of groups of civilians on the basis
of race, ethnicity and religion was facilitated through the use of identification
systems. There is hence an alarming need to ensure that the on-going
development of identification systems be carefully monitored, while taking into
account lessons learnt from history.
129 It is important to justify the usage of biometric technology given the
invasion of privacy. When the purpose of collecting the biometric data is just
for authentication and there is little or no benefit in having stronger user
205 Pam Dixon, A Failure to Do No Harm – India’s Aadhaar biometric ID program and its inability to protect
privacy in relation to measures in Europe and the U.S., Health and Technology (2017), Vol. 7, at pages 539–
567
206 Ibid.189
PART Fidentification, it is difficult to justify the collection of biometric information. The
potential fear is that there are situations where there are few or no benefits to
be gained from strong user verification / identification and this is where
biometric technology may be unnecessary.207 (Example: When ascertaining
whether an individual is old enough to go to a bar and drink alcohol, it is
unnecessary to know who the person is, when all that is needed to be
demonstrated is that the individual is of legal age). Fundamental rights are
likely to be violated in case biometrics are used for applications merely
requiring a low level of security.
130 Biometric data, by its very nature, is intrinsically linked to characteristics
that make us ‘humans’ and its broad scope brings together a variety of
personal elements. It is argued that the collection, analysis and storage of
such innate data is dehumanising as it reduces the individual to but a number.
Ultimately, organisations and governmental agencies must demonstrate that
there is a compelling legitimate interest in using biometric technology and that
an obligatory fingerprint requirement is reasonably related to the objective for
which it is required. One way of avoiding unnecessary collection of biometric
data is to set strict legal standards to ensure that the intrusion into privacy is
commensurate with and proportional to the need for the collection of bio-
metric data.208
207 Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013).
208 Ibid190
PART FF.2 Consent in the collection of biometric data
131 Rules on the collection of physical data by government agencies usually
specify under what conditions a person can be required to provide fingerprints
and/or bodily tissues. If consent is required, rules are in place to regulate the
scope of consent. If forced searches are allowed, specifications are usually
provided as to how and by whom the search will be performed. Therefore, the
legal questions surrounding the issue should be:
(a) If required, what exactly should be the extent of coverage of the consent?
(b) When is the compulsory collection of biometric information required and
who is eligible to conduct it?
(c) What is the procedure to do so?
(d)What exactly should be filed and stored?
132 Biometric technology is far from being a mature technology and a
variety of errors inevitably occur. Mature technology is a popular term for any
technology for which any improvements in deployment are evolutionary rather
than revolutionary.209 Once a biometric system is compromised, it is
compromised forever. In the event of biometric identity theft, there would
appear to be no alternative but to withdraw the user from the system.
Passwords and numbers can be changed, but how does one change the basic
biological features that compromise biometrics in the event that there is a
theft?
209 Segen’s Medical Dictionary, 2012.
191
PART FAll of these parameters need to be applied to test the validity of the Aadhaar
legislation in a two-part inquiry: First, reports and steps taken by the
Government of India that guided the introduction and role of biometrics before
the enactment of the Aadhaar Act will be analysed, which will be followed by
an analysis of relevant provisions concerning the intersection of biometric
technology and privacy, as they are enshrined in the Aadhaar Act, 2016 and
supporting Regulations made under it.
F.3 Position before the Aadhaar legislation
Summary of Pre-Enactment Events
133 On 3 March 2006, the Department of Information Technology, Ministry
of Communications Information Technology, gave its approval for
implementation of the project ‘Unique ID for Below Poverty Line Families’
(BPL) by the National Informatics Centre over a period of 12 months.210 This
was followed by a Processes Committee being set up a few months later on 3
July 2006, to suggest the processes for updation, modification, addition and
deletion of data from the core database to be created under the Unique ID
(“UID”) for BPL Families Project.211 The Processes Committee prepared a
210 Ministry of Communication Information Technology, Department of Information Technology, Administrative
Approval for the project - “Unique ID for BPL families”, dated March 03, 2006 (Annexure R-1, List of Pre-
enactment dates and events for the Aadhaar project submitted by the Learned AG).
211 Department of Information Technology, Notification: Setting up of a Process Committee to suggest the
processes for updation, modification, addition deletion of data and fields from the core database to be
created under the Unique ID for BPL families project, dated July 03, 2006 (Annexure R-2, List of Pre-
enactment dates and events for the Aadhaar project submitted by the learned AG).192
PART Fpaper titled ‘Strategic Vision: Unique Identification of Residents’212. The paper
recommended the linkage of the UID database with other databases which
would ensure continuous updation and user-based validation and use of the
Election Commission’s database as the base database.213 The document
inter-alia, also stated that statutory backing would be required for adoption of
UID in the long term;214 focus and conviction would be required on security
and privacy to ensure adoption by different stakeholders; 215 while
‘transparency vs. right to privacy’ was another challenge that would have to be
addressed.216 Biometrics, however, found no mention in the paper at this
stage.
Thereafter, on 4 December 2006, an Empowered Group of Ministers
(“EGoM”), was constituted with the approval of the Prime Minister to collate
the National Population Register (“NPR”) under the Citizenship Act 1955 and
the Unique Identification Number Project.217 In its meeting held on 27 April
2007, the Processes Committee decided that the UID database would evolve
in three stages: initial, intermediate and final. Biometrics was mentioned for
the first time in the context of UID, when the committee agreed that if the
infrastructure was available and the photograph and/or biometrics of a
212 Strategic Vision: Unique Identification of Residents, dated 26 November 2006 (Annexure R-3, List of Pre-
enactment dates and events for the Aadhaar project submitted by the learned AG).
213 Ibid
214 Ibid
215 Ibid
216 Ibid217 Constitution of an Empowered Group of Ministers to collate two schemes - the National Population Register
under the Citizenship Act, 1955 and the Unique Identification Number (UID) project of the Department of
Information Technology (Annexure R-4, List of Pre-enactment dates and events for the Aadhaar project
submitted by the learned AG).193
PART F
resident was obtainable along with other information, it would be captured in
the initial and intermediate stages as well.218 Subsequently, the EGoM
approved the establishment of a UID Authority under the Planning
Commission on 28 January 2008.219 while the strategy to collate NPR and UID
was also approved. The EGoM also agreed that the collection of data under
the NPR exercise could include collection of photographs and biometrics to
the extent feasible, while it was also resolved that the data collected under the
NPR would be handed over to the UID Authority for maintenance and
updation. The EGoM, in its fourth meeting dated 4 November 2008 decided
that initially, the UIDAI will be established as an executive body under the
Planning Commission for a period of 5 years. UIDAI, it was envisaged, will
create its database from the electoral roll of the ECI and verify it through
Below Poverty Line and Public Distribution System data, but it would also
have the authority to take its own decisions as to how a database should be
built.220 Consequently, the Government of India issued a notification on 28
January 2009 constituting the UIDAI as an attached office and executive
authority under the aegis of the Planning Commission.
218 Planning Commission, No. 4(4)/56/2005- CI, Minutes of the Fifth Meeting of the Unique ID project under the
Chairmanship of Dr. Arvind Virmani (Annexure R-6, List of Pre-enactment dates and events for the Aadhaar
project submitted by the learned AG).219 Minutes of the Second Meeting of the EGoM to collate two schemes - The National Population Register under
the Citizenship Act, 1955 and the Unique Identification number (UID) project of the Department of Information
Technology (Annexure R-10, List of Pre-enactment dates and events for the Aadhaar project submitted by the
learned AG).220 Minutes of the Fourth Meeting of the EGoM to collate two schemes - The National Population Register under
the Citizenship Act, 1955 and the Unique Identification Number (UID) project of the Department of Information
Technology (Annexure R-12, List of Pre-enactment dates and events for the Aadhaar project submitted by the
learned AG).194
PART F134 Following the constitution of UIDAI, the Secretary, Planning
Commission addressed a letter to Chief Secretaries of all States/ UTs on 6
May 2009 enclosing a brief write up on UIDAI and UID numbers for resident
Indians. The letter included the concept, implementation strategy, model of the
project along with the role and responsibilities of the states/ UTs.221 It was also
decided that partner databases for two-way linkages between the UID
database and the partner databases for maintenance and continuous updation
of the UID databases would be ECI database, Ministry of Rural Development-
rural household survey database and the State ration card (PDS) databases.
135 The first meeting of the PM’s Council of UIDAI, was held on 12 August
2009. Various proposals were approved by the Council,222 by which it was
decided, among other things, that the proposal to designate UIDAI as an apex
body to set standards in the area of biometrics and demographic data
structures be approved. On 29 September 2009, UIDAI set up the Biometrics
Standards Committee (“BSC”) to frame biometric standards for UIDAI. The
Committee was assigned with the following mandate:223
● To develop biometric standards that will ensure interoperability of devices,
systems and processes used by various agencies that use the UID system.
221 Secretary, Government of India, Planning Commission, D.O. No. A-11016/02/09-UIDAI (Annexure R-22, List
of Pre-enactment dates and events for the Aadhaar project submitted by the learned AG).
222 Planning Commission, Minutes of the meeting of the PM’s Council of UIDAI (Annexure R-35, List of Pre-enactment dates and events for the Aadhaar project submitted by the Learned AG).
223 Planning Commission, UIDAI, Office Memorandum, available at
https://www.uidai.gov.in/images/resource/Biometric_Standards_Committee_Notification.pdf.195
PART F● To review the existing standards of Biometrics and, if required,
modify/extend/enhance them so as to serve the specific requirements of
UIDAI relating to de-duplication and Authentication.
This was followed by the creation of the Demographic Data Standards and
Verification Procedure Committee (“DDSVPC”) on 9 October 2009, with the
following mandate:224
● Review/ modify/ extend/ enhance the existing standards of Demographic
data and recommend the Demographic Data standards (The data fields
and their formats/structure, etc.) that will ensure interoperability and
standardization of basic demographic data and their structure used by
various agencies that use the UID system; and
● Recommend the Process of Verification of this demographic data in order
to ensure that the data captured, at the time of enrolment of the residents
into the UID system, is correct.
136 The DDSVPC in its report dated 9 December 2009, stated that UIDAI
had selected biometrics features as the primary method to check for duplicate
identity. In order to ensure that an individual was uniquely identified in an easy
and cost-effective manner, it was necessary to ensure that the captured
biometric information was capable of carrying out de-duplication at the time
when information was collected.225 The Know Your Resident (“KYR”)
224 DDSVPC (UIDAI), DDSVPC Report, dated 09 December 2009, available at
,at pages 5-6.
225 Ibid, at page 4196
PART Fverification procedure was introduced to ensure that “key demographic data is
verified properly so that the data within UID system can be used for
authentication of identity by various systems”. Three distinct methods of
verification were to be acceptable under UID. Verification could be based on
● Supporting documents;
● An introducer system under which a network of “approved” introducers can
introduce a resident and vouch for the validity of the resident’s information;
and (This idea was borrowed from the account opening procedure in the
banks.)
● The process adopted for public scrutiny in the National Population
Register.
137 In order to verify the correctness of certain mandatory fields, such as
name, date-of-birth, and address, a “Proof of Identity” (PoI) and “Proof of
Address” (PoA) would be required. This would comprise of documents
containing the resident’s name and photograph and the name and address,
respectively. On 9 April 2010, the collection of iris biometrics for the NPR
exercise was approved.226
138 A strategy overview issued by UIDAI in April 2010 described the
features, benefits, revenue model and timelines of the project.227 The survey
226 Annexure R-43, Volume II, List of Pre-enactment dates and events for the Aadhaar project, Submissions by
the AG
227 UIDAI, UIDAI Strategy Overview, available at.
197
PART Foutlined that UIDAI would collect the following demographic and biometric
information from residents in order to issue a UID number:
● Name
● Date of birth
● Gender
● Father's/ Husband's/ Guardian's name and UID number (optional for adult
residents)
● Mother's/ Wife's/ Guardian's name and UID number (optional for adult
residents)
● Introducer's name and UID number ( in case of lack of documents)
● Address
● All ten fingerprints, photograph and both iris scansOn 12 May 2010, a note outlining the background of UIDAI, and proposing an
approach for collection of demographic and biometric attributes of residents
for the UID project was submitted to the Cabinet Committee on UIDAI. 228
Permission of the Union Cabinet was sought to ensure that the approach
which was proposed should be adhered to by the Registrar General of India
for the NPR exercise and by all other Registrars in the UID system. The
rationale behind the inclusion of iris biometrics and the need for capturing iris
scans at the time of capturing biometric details was also explained.
This was followed by the introduction of the National Identification Authority of
India Bill, 2010 (NIAI Bill) in the Rajya Sabha on 3 December 2010. On 13
February 2011, the one millionth Aadhaar card was delivered. Thereafter, on
228Annexure R-46, Volume II, List of Pre-enactment dates and events for the Aadhaar project, Submissions by
the AG198
PART F11 April 2011, the Central Government notified the Information Technology
(Reasonable security practices and procedures and sensitive personal data or
information) Rules, 2011 [“IT Rules”] under Section 43A of the IT Act, 2000.
On 29 September 2011, the Aadhaar project completed one year. An
announcement was made of the generation of ten crore enrolments and of
more than 3.75 crore Aadhaar numbers.
Analysis of UIDAI Reports Rights of Registrars
A. Biometrics Standards Committee (BSC) Report
139 BSC in its report dated 30 December 2009 stated that it held extensive
meetings and discussions with international experts and technology suppliers.
A technical sub-group was formed to collect Indian fingerprints and analyze
quality. Over 2,50,000 fingerprint images from 25,000 persons were sourced
from the districts of Delhi, UP, Bihar and Orissa. Nearly all the images were
from rural regions, and were collected by different agencies using different
capture devices, and through different operational processes. The BSC report
is silent about the pretext on which fingerprints of 25,000 people were
collected. This action of UIDAI raises privacy concerns especially since the
fingerprints were collected from rural regions where people may not have
been aware or made aware by UIDAI before collection of fingerprints, of the
possible privacy harms of giving up biometrics.
199
PART FBSC after reviewing international standards and current national
recommendations, concluded that a fingerprints-based biometric system was
to be at the core of UIDAI’s de-duplication efforts and that the ISO 19794
series of biometrics standards for fingerprints, face and iris set by the
International Standards Organization (ISO) were most suitable for the UID
project.229 BSC also observed that while a fingerprints-based biometric system
shall be at the core of UIDAI’s de-duplication efforts, its accuracy in the Indian
context could not predicted in the absence of empirical data:
“The Committee notes that face is the most commonly
captured biometric, and frequently used in manual checking.
However, stand-alone, automatic face recognition does not
provide a high level of accuracy, and can only be used to
supplement a primary biometric modality. Fingerprinting, the
oldest biometric technology, has the largest market share of
all biometrics modalities globally. … Based on these factors,
the Committee recognizes that a fingerprints-based
biometrics system shall be at the core of the UIDAI’s de-duplication efforts…
The Committee, however, is also conscious of the fact that
de-duplication of the magnitude required by the UIDAI has
never been implemented in the world. In the global context, a
de-duplication accuracy of 99% has been achieved so far,
using good quality fingerprints against a database of up to
fifty million. Two factors, however, raise uncertainty about the
accuracy that can be achieved through fingerprints. First,
retaining efficacy while scaling the database size from fifty
million to a billion has not been adequately analyzed. Second,
fingerprint quality, the most important variable for determining
de-duplication accuracy, has not been studied in depth in the
Indian context.”230140 In its report for discussion titled “Technical Standards for Digital Identity
Systems for Digital Identity”, the Identification for Development (ID4D)
initiative, a cross-departmental effort report of the World Bank, noted that
229 UIDAI Committee on Biometrics, Biometrics Design Standards For UID Applications, at page 4
230 Ibid.200
PART FUIDAI had not implemented “an important security standard, ISO 24745,
which provides guidance for the protection of biometric information for
confidentiality and integrity during storage or managing identities … due to the
complexity of applicable compliance procedures” for the Aadhaar system. 231
Proponents of the program argue that in all fairness to UIDAI, it has to be
noticed that the ISO 24745 standard was published in August 2011 whereas
the report of BSC had already been submitted to UIDAI in January 2010.
However, Mr. Myung Geun Chun, the Project Editor of ISO 24745, is reported
to have stated that ISO 24745 standard is an ‘invaluable tool’ for addressing
‘unique privacy concerns’ like ‘unlawful processing and use of data’ raised by
biometric identification because of its binding nature ‘which links biometrics
with personally identifiable information’.232
ISO 24745 seeks to “safeguard the security of a biometric system and the
privacy of data subjects with solid countermeasures”.233 ISO 24745 standard
specifies:
● “Analysis of threats and countermeasures inherent in
biometric and biometric system application models;
● Security requirements for binding between a biometric
reference and an identity reference;● Biometric system application models with different
scenarios for the storage and comparison of biometric
references;● Guidance on the protection of an individual’s privacy during
the processing of biometric information.”234231 Identification for Development (World Bank Group), Technical Standards for Digital Identity Systems for Digital
Identity Draft for Discussion, available at http://pubdocs.worldbank.org/en/579151515518705630/ID4D-
Technical-Standards-for-Digital-Identity.pdf, at page 22.
232 Katie Bird, Is your biometric data safe online? ISO/IEC standard ensures security and privacy, (11 August2011), available at .
233 Ibid.234 Ibid.
201
PART FB. Strategy Overview of 2010
In this report, a balance was sought to be struck between ‘privacy and
purpose’ in respect of the information of the residents which was collected.
The report states that ‘agencies’ may store the information of the residents at
the time of enrolment, but they will not have access to the information stored
in the UID database.235 Further, for the purposes of authentication, requests
made by the agencies would be answered through a ‘Yes’ or a ‘No’ response
only.236 Under the sub-heading “Protecting Privacy and Confidentiality”, the
report stated that the additional information which was being sought from
people was only biometric information like fingerprints and iris scans, as other
information was already available with public and private agencies in the
country.237 Right to privacy and confidentiality were sought to be protected by
putting necessary provisions “in place”.238 It was also observed in the context
of privacy that loss of biometric information of a resident who is a victim of
identity theft, especially when such information is linked to banking, social
security and passport records, risks financial and other assets and the
reputation of the resident.239 According to the review, the envisaged UIDAI Act
(which was still under contemplation at the time of publishing of this report and
had not yet been legislated) would have remedies for the following offences:
235 UIDAI, UIDAI Strategy Overview, available at
. pdf, at page 4
236 Ibid.237 Ibid, at page 32
238 Ibid.239 Ibid, at page 33
202
PART F● “Unauthorized disclosure of information by anyone in
UIDAI, Registrar or the Enrolling agency;● Disclosure of information violating the protocols set in place
by UIDAI;● Sharing any of the data on the database with anyone;
● Engaging in or facilitating analysis of the data for anyone;
● Engaging in or facilitating profiling of any nature for anyone
or providing information for profiling of any nature for
anyone;● All offences under the Information Technology Act shall be
deemed to be offences under UIDAI if directed against
UIDAI or its database.”240However, according to the report, UIDAI was to concern itself only with identity
fraud and any grievances in respect of document fraud (counterfeit/
misleading documents) were to be left to the Registrar enrolling the
resident.241
141 The following conclusions emerge from the UIDAI’s strategy overview:
Firstly, the UIDAI was aware of the importance of biometric information before
the Aadhaar programme had been rolled out. Secondly, UIDAI had itself
contemplated a scenario of identity theft which could occur at the time of
enrollment for Aadhaar cards. However, it had no solution to the possible
harms which could result after the identity theft of a person, more so when the
potential ‘UIDAI Act’ was still in the pipeline and was not eventually enacted
until 2016.
240 Ibid.
241 Ibid, at page 34
203
PART FC. Registrars
142 The term ‘Registrar’ was first defined by UIDAI in its DDSVPC Report as
“any government or private agency that will partner with UIDAI in order to
enroll and authenticate residents”.242 In the Strategy Overview, the term was
defined as “agencies such as central and state departments and private sector
agencies who will be ‘Registrars’ for the UIDAI”.243
The Strategy Overview also stated that:
“Registrars will process UID applications, and connect to the
CIDR to de-duplicate resident information and receive UID
numbers. These Registrars can either be enrollers, or will
appoint agencies as enrollers, who will interface with people
seeking UID numbers. The Authority will also partner with
service providers for authentication. If the Registrar issues a
card to the resident, the UIDAI will recommend that the card
contain the UID number, name and photograph. They will be
free to add any more information related to their services
(such as Customer ID by bank). They will also be free to
print/ store the biometric collected from the applicant on
the issued card. If more registrars store such biometric
information in a single card format, the cards will become
interoperable for offline verification. But the UIDAI will not
insist on, audit or enforce this.”244 (Emphasis supplied)143 In the ‘Aadhaar Handbook for Registrars 2010’ (“2010 Handbook”),
following policy guidelines were laid down in respect of Registrars:
1. “Registrars may retain the biometric data collected from
residents enrolled by them. However, the Registrar will have to
exercise a fiduciary duty of care with respect to the data
collected from residents and will be responsible for loss,
unauthorized access to and misuse of data in their custody.2. In order to ensure data integrity and security, the biometrics
captured shall be encrypted upon collection by using the242 DDSVPC (UIDAI), DDSVPC Report, (9 December 2009), available at
. pdf , at page 5
243 UIDAI, UIDAI Strategy Overview, available at, at page 2
244 Ibid, at page 15204
PART Fencryption key defined by the Registrar. It is the responsibility
of the Registrar to ensure the safety, security and
confidentiality of this data which is in their custody. The
Registrar must protect the data from unauthorized access and
misuse. The UIDAI will define guidelines for the storage of
biometric data in order to give the Registrar some
guidance on ensuring security of the data. The Registrar
shall have to define their own security policy and protocols to
ensure safety of the Biometric data. The Registrars shall bear
liability for any loss, unauthorized access and misuse of this
data. In the interest of transparency, it is recommended
that the Registrar inform the resident that they will be
keeping the biometric data and also define how the data
will be used and how it will be kept secure.”245
(Emphasis supplied)In the ‘Aadhaar Handbook for Registrars 2013’ (“2013 Handbook”), it was
stated that “UIDAI has defined security guidelines for the storage of
biometric data”.246 While it is indicated in the handbook that guidelines for
storage were defined by UIDAI, it is evident that this took place only after 2010
before which the registrars were functioning without guidelines mandating how
the biometric data was to be kept secure.
The following guideline finds mention both in the Handbook of 2010 and 2013:
“In the interest of transparency, it is recommended that the
Registrar inform the resident that they will be keeping the
biometric data and also define how the data will be used and
how it will be kept secure”.247However, it is apparent from this guideline that it was merely a
recommendation to the Registrars, and no obligation was cast upon the
245 UIDAI, Aadhaar Handbook for Registrars, available at
http://doitc.rajasthan.gov.in/administrator/Lists/Downloads/Attachments/26/aadhaar_handbook_version. pdf,
at page 11
246 Annexure R-74, Volume III, List of Pre-enactment dates and events for the Aadhaar project, Submissions by
the AG.247 UIDAI (Planning Commission), Aadhaar Handbook for Registrars (2010), available at
. pdf, at page 11; UIDAI
(Planning Commission), Aadhaar Handbook for Registrars (2013), at page 16 (Annexure R-74, List of Pre-
enactment dates and events for the Aadhaar project submitted by the Learned AG).205
PART FRegistrars, to inform residents that their biometric data will be stored by them
and how the data was to be used and kept secure. In contrast, Regulation 5 of
the Aadhaar (Sharing of Information) Regulations 2016, states:
“Responsibility of any agency or entity other than
requesting entity with respect to Aadhaar number. —(1) Any individual, agency or entity which collects
Aadhaar number or any document containing the
Aadhaar number, shall: (a) collect, store and use the
Aadhaar number for a lawful purpose; (b) inform the
Aadhaar number holder the following details:— i. the
purpose for which the information is collected; ii.
whether submission of Aadhaar number or proof of
Aadhaar for such purpose is mandatory or voluntary, and
if mandatory, the legal provision mandating it; iii.
alternatives to submission of Aadhaar number or the
document containing Aadhaar number, if any; (c) obtain
consent of the Aadhaar number holder to the collection,
storage and use of his Aadhaar number for the specified
purposes.(2) Such individual, agency or entity shall not use the
Aadhaar number for any purpose other than those specified
to the Aadhaar number holder at the time of obtaining his
consent.(3) Such individual, agency or entity shall not share the
Aadhaar number with any person without the consent of the
Aadhaar number holder.” (Emphasis supplied)144 What the Registrar is obliged to do under law after the enactment of the
Aadhaar Act, was a recommendation to the Registrar prior to the enactment of
the Aadhaar Act. Thus, it is uncertain whether residents were informed about
where and how their data would be kept secure since the guidelines to the
Registrars were only recommendatory in nature. Similarly, in a UIDAI
document titled ‘Roles and Responsibilities of Enrollment Staff, 2017’, one of
the ‘Fifteen Commandments that an Operator must remember during Resident
Enrollment’ is “Make sure that the resident is well informed that his/her
206
PART Fbiometric will only be used for Aadhaar Enrolment/Update and no other
purpose”.248 However, in the UIDAI document titled ‘Enrollment Process
Essentials, 2012’, there is no mention of any such obligation being placed
upon the enrolment staff.249 In the absence of informed consent for the
collection of data, a shadow of potential illegality is cast.
F.4 Privacy Concerns in the Aadhaar Act1 Consent during enrolment and authentication the right to access
information under the Aadhaar Act145 Section 3(2) of the Aadhaar Act requires enrolment agencies to inform
the individual being enrolled about: a) the manner in which information shall
be used; b) the nature of recipients with whom the information is to be shared
during authentication; and c) the existence of a right to access information.
However, the Enrolment Form in Schedule I of the Enrolment Regulations
does not offer any clarification or mechanism on how the mandate of Section
3(2) is to be fulfilled.
The right of an individual to access information related to his or her
authentication record is recognized in Section 3(2)(c) and Section 32(2) of the
248 UIDAI, Roles and Responsibilities of Enrolment Staff, available at
. Pdf , at page 8
249UIDAI, Enrolment Process Essentials (13 December 2012), available atmodule2_aadhaar_enrolment_process17122012. pdf
207
PART FAadhaar Act. However, the supplementary regulations that complement the
Act are bereft of detail on the procedure to access such information.
Similarly, Regulation 9(c) of the Enrolment Regulations states that the
procedure for accessing data would be provided to residents through the
enrolment form, which is found in Schedule I to the Enrolment Regulations.
However, all that Schedule I states is: “I have a right to access my identity
information (except core biometrics) following the procedure laid down by
UIDAI”, without any such procedure actually being laid down.
146 Section 2(I) of the Act, which defines an enrolling agency read with
Regulation 23 of the Aadhaar (Enrolment and Update) Regulations allows for
the collection of sensitive personal data (demographic and biometric
information) of individuals by private agencies, which also have to discharge
the burden of explaining the voluntary nature of Aadhaar registration and
obtaining an individual’s informed consent.
The Authentication Regulations, framed under sub-section (1), and sub-
clauses (f) and (w) of sub-section (2) of Section 54 of the Aadhaar Act deal
with the authentication framework for Aadhaar numbers, the governance of
authentication agencies and the procedure for collection, storage of
authentication data and records. Regulation 5 (1) states what details shall be
made available to the Aadhaar number holder at the time of authentication
208
PART Fwhich are a) the nature of information that will be shared by the Authority upon
authentication, (b) the uses to which the information received during
authentication may be put; and (c) alternatives to submission of identity
information. Regulation 6 (2) mandates that a requesting entity shall obtain the
consent of an Aadhaar number holder for authentication in physical or,
preferably, in electronic form and maintain logs or records of the consent
obtained in the manner and form as may be specified by the Authority for this
purpose.
Although Regulation 5 mentions that at the time of authentication, requesting
entities shall inform the Aadhaar number holder of alternatives to submission
of identity information for the purpose of authentication, and Regulation 6
mandates that the requesting entity shall obtain the consent of the Aadhaar
number holder for the authentication, in neither of the above circumstances do
the regulations specify the clearly defined options that should be made
available to the Aadhaar number holder in case they do not wish to submit
identity information, nor do the regulations specify the procedure to be
followed in case the Aadhaar number holder does not provide consent. This is
a significant omission. Measures for providing alternatives must be defined in
all identity systems, particularly those that are implemented on a large scale.
209
PART F2 Extent of information disclosed during authentication sharing of
core biometric information
147 Section 8(4) of the Act permits the Authority to respond to an
authentication query with a “positive, negative or any other appropriate
response sharing such identity information excluding any core biometric
information”. The petitioners have argued that the wide ambit of this provision
gives the Authority discretion to respond to the requesting entity with
information including an individual’s photograph, name, date of birth, address,
mobile number, email address and any other demographic information that
was disclosed at the time of enrolment.
Moreover, it must be realized that even if core biometric information cannot be
shared, demographic information is nonetheless, sensitive. Regulation 2(j) of
the Authentication Regulations250 provides that a digitally signed response
with e-KYC data251 [which is defined in Regulation 2(k)] can be returned to the
requesting entity, while Regulation 3(ii)252 provides for this form of
authentication (e-KYC) by UIDAI.
250 Regulation 2(j) of Aadhaar (Authentication) Regulations: “e-KYC authentication facility” means a type of
authentication facility in which the biometric information and/or OTP and Aadhaar number securely submitted
with the consent of the Aadhaar number holder through a requesting entity, is matched against the data
available in the CIDR, and the Authority returns a digitally signed response containing e-KYC data along with
other technical details related to the authentication transaction.
251 Regulation 2(k) of Aadhaar Authentication Regulations: “e-KYC data” means demographic information andphotograph of an Aadhaar number holder.
252 Regulation 3(ii) of Aadhaar (Authentication) Regulations, 2016: “3. Types of Authentication-There shall be
two types of authentication facilities provided by the Authority, namely— (i) Yes/No authentication
facility, which may be carried out using any of the modes, (ii) e-KYC authentication facility, which may be
carried out only using OTP and/ or biometric authentication modes as specified in regulation 4(2)”.210
PART F148 Section 29(1) of the Aadhaar Act expressly states that ‘core biometric
information can never be shared with anyone for any reason whatsoever or be
used for any purpose other than generation of Aadhaar numbers and
authentication under this Act’. However, this provision which seemingly
protects an individual’s core biometric information from being shared is
contradicted by Section 29(4)253 of the Act, the proviso to which grants UIDAI
the power to publish, display or post core biometric information of an individual
for purposes specified by the regulations. The language of this section is
overbroad and which could lead to transgressions and abuse of power.
Moreover, sub-sections 29(1) and (2), in effect, create distinction between two
classes of information (core biometric information and identity information),
which are integral to individual identity. Identity information requires equal
protection as provided to core biometric information.
3 Expansive scope of biometric information
149 Definitions of biometric information [Section 2(g)], core biometric
information [Section 2(j)] and demographic information [Section 2(k)] under
the Aadhaar Act are inclusive and expansive. Section 2(g) defines 'biometric
information' as “photograph, fingerprint, iris scan, or such other biological
attributes of an individual as may be specified by regulations”. Section 2(j)
defines ‘core biometric information’ as “fingerprint, Iris scan, or such other
253 Section 29(4) states: “No Aadhaar number or core biometric information collected or created under this Act in
respect of an Aadhaar number holder shall be published, displayed or posted publicly, except for the purposes
as may be specified by regulations.”211
PART Fbiological attribute of an individual as may be specified by regulations”.
Section 2(t) explains that the regulations are to be made by UIDAI, which is
the supreme authority under the Act. Sections 2(g), (j), (k) and (t) give
discretionary power to UIDAI to define the scope of biometric and
demographic information. Although the Act specifically provides what
information can be collected, it does not specifically prohibit the collection of
further biometric information. The scope of what can, in addition, be collected,
has been left to regulations. These provisions empower UIDAI to expand on
the nature of information already collected at the time of enrolment, to the
extent of also collecting ‘such other biological attributes’ that it may deem fit by
specifying it in regulations at a future date.
The definitions of these sections provide the government with unbridled
powers to add to the list of biometric details that UIDAI can require a citizen to
part with during enrolment which might even amount to an invasive collection
of biological attributes including blood and urine samples of individuals.
4 Other concerns regarding the Aadhaar Act: Misconceptions
regarding the efficacy of biometric information150 The uniqueness of a fingerprint in forensic science remains an
assumption without watertight proof. The uniqueness of biometric data is not
absolute, it is relative. Not everyone will have a particular biometric trait, or an
individual’s biometric trait may be significantly different from the ‘normal’
212
PART Fexpected trait. Some people may be missing fingerprints due to skin or other
disease, which may cause further problems when enrolling a large population
in a fingerprint-based register. Discrimination concerns may also be raised in
such a case. Therefore, a large scale biometric scheme will usually need to
utilise more than one biometric. For example- both fingerprint and face to
ensure all people can be enrolled.254
The stability of even so called stable types of biometric data is not absolute.
Each time an individual places a fingerprint on a fingerprint reader, the pattern
may appear to be the same from a short distance, but there are actually small
differences in the pattern due to dryness, moisture and elasticity of the skin.
Moreover, cuts and scratches can alter the pattern. Similarly, even the iris, a
popular biometric measurement suffers from difficulties in obtaining a valid
image. The iris can also be hindered by specula reflections in uncontrolled
lighting situations. These problems also apply to other relatively stable
biometric identifiers.255
151 Sections 6256 and 31(2)257 of the Aadhaar Act place an additional onus
on individual Aadhaar holders to update their information. These provisions
254Ramesh Subramanian, Computer Security, Privacy Politics: Current Issues, Challenges Solutions, IRM
Press, at pages 99-100
255Ibid, at page 100
256Section 6 states: “The Authority may require Aadhaar number holders to update their demographic informationand biometric information, from time to time, in such manner as may be specified by regulations, so as to
ensure continued accuracy of their information in the Central Identities Data Repository.”
257Section 31(2) states: “In case any biometric information of Aadhaar number holder is lost or changessubsequently for any reason, the Aadhaar number holder shall request the Authority to make necessary
alteration in his record in the Central Identities Data Repository in such manner as may be specified by
regulations.”213
PART Fcreate a legal mandate on individuals to ensure that their information is
accurate within the CIDR. It is an acknowledgement that an individual’s
biometric information may change from time to time. Natural factors like
ageing, manual labour, injury and illness can cause an individual’s biometric
information to be altered over the course of a lifetime. Critics of the Aadhaar
program however point to the fact that provisions for updation fly in the face of
UIDAI’s repeated advertisements that Aadhaar enrolment is a “one-time”
affair, as it is not and will never be. Moreover, there is no way in which a
person can estimate that he or she is due for an update, as this is not
something that can be discerned by actions as innocuous as looking in the
mirror or at one’s fingers, and therefore there remains no objective means of
complying with the above sections. In fact, an authentication failure and a
subsequent denial of welfare benefits, a subsidy or a service that an individual
is entitled to might be the only way one comes to the conclusion that his or her
biometrics need to be updated in the CIDR.258
Moreover, since the promise of Aadhaar as a unique identity hinges on the
uniqueness of biometrics, it would be logical to assume that any update to
biometric data should go through the same rigour as a new enrolment.
Regulation 19(a), entitled ‘Modes of Updating Residents Information’ under
Chapter IV of the Aadhaar (Enrolment and Update) Regulations, 2016
provides:
258 L. Vishwanath, Four Reasons You Should Worry About Aadhaar's Use of Biometrics, The Wire (28 March,
2017), available at https://thewire.in/rights/real-problem-aadhaar-lies-biometrics214
PART F“19. Mode of Updating Residents Information:
a) At any enrolment centre with the assistance of the operator
and/or supervisor. The resident will be biometrically
authenticated and shall be required to provide his Aadhaar
number along with the identity information sought to be
updated.”This raises the question as to how an individual will update his/her biometric
information. If the biometric information stored in CIDR has changed, the
present biometrics will lead to mismatch during authentication. This
Regulation does not provide any real clarity on how updation should be taking
place in practice for the following reasons:
1. As required by the regulation, can an individual be asked to undergo
biometric authentication, when the purpose is to update the biometrics?
2. Does the provision amount to an implied expectation that an individual is
supposed to revisit the enrolment centre before all ten fingers and two
irises (core biometric information) are rendered inaccurate for the
purposes of authentication?259
This is also evidence of the fact that an Aadhaar enrolment is not a one-time
affair.
5 No access to biometric records in database
152 The proviso to Section 28(5)260 of the Aadhaar Act disallows an
individual access to the biometric information that forms the core of his or her
259 Ibid.
260 Section 28(5) states: “Notwithstanding anything contained in any other law for the time being in force, and
save as otherwise provided in this Act, the Authority or any of its officers or other employees or any agency215
PART Funique ID (Aadhaar). The lack of access is problematic for the following
reasons: First, verification of whether the biometrics have been recorded
correctly or not in the first place is not possible. This becomes critical when
that same information forms the basis of identity and is the basis of
authentication and subsequent access to welfare benefits and other services.
Second, there is a great potential for fraudulently replacing a person’s
biometric identity in the database, as the individual has no means to verify the
biometric information that has been recorded at the time of enrolment. Even
an entity like the enrolment operator (with a software hack) could upload
someone else’s biometrics against another person.261 Denial of access to the
individual violates a fundamental principle of data protection: ownership of the
data must at all times vest with the individual. Overlooking this fundamental
principle is manifestly arbitrary and violative of Article 14.
6 Biometric locking153 Authentication Regulations 11 (1) and (4) provide for the facility of
Biometric Locking. Regulation 11(1) provides:
“The Authority may enable an Aadhaar number holder to
permanently lock his biometrics and temporarily unlock it
when needed for biometric authentication.”that maintains the Central Identities Data Repository shall not, whether during his service or thereafter, reveal
any information stored in the Central Identities Data Repository or authentication record to anyone:Provided that an Aadhaar number holder may request the Authority to provide access to his identity information
excluding his core biometric information in such manner as may be specified by regulations.”
261 L. Vishwanath, Four Reasons You Should Worry About Aadhaar's Use of Biometrics, The Wire (28 March,2017), available at https://thewire.in/rights/real-problem-aadhaar-lies-biometrics
216
PART FRegulation 11(4) provides:
“The Authority may make provisions for Aadhaar number
holders to remove such permanent locks at any point in a
secure manner.”The provision allowing biometric locking is salutary to the extent that it allows
Aadhaar number holders to permanently lock their biometrics and temporarily
unlock them only when needed for biometric authentication. But the regulation
is problematic to the extent that it also empowers the UIDAI to make
provisions to remove such locking without any specified grounds for doing
so.262
7 Key takeaways
154 The use of biometric technology is only likely to grow dramatically both
in the private and public sector. On our part, we can only ensure that the
strides made in technology are accompanied by stringent legal and technical
safeguards so that biometrics do not become a threat to privacy.263
155 There is no unique concept of privacy and there maybe trade-offs
between privacy and other objectives.264 The challenge regarding privacy is
best put in the following words:
262 The Centre for Internet Society, Analysis of Key Provisions of the Aadhaar Act Regulations, (31 March,
2017), available at
regulations.263 A. Cavoukian, Privacy and Biometrics, Information and Privacy Commissioner Canada (1999), available at
http://www.ipc.on.ca/images/Resources/pri-biom.pdf
264 Robert Gellman. Privacy and Biometric ID Systems: An Approach Using Fair Information Practices for
Developing Countries, CGD Policy Paper 028 Washington DC: Centre for Global Development (1 August
2013), available at . pdf217
PART F“The definition of privacy in any jurisdiction must take into
account cultural, historical, legal, religious and other local
factors. One size may not fit all countries, regions, or cultures
when it comes to privacy or to some elements of privacy. In
addition, views of privacy change as time passes and
technology advances. However, different perspectives are not
a barrier to evaluating privacy but a challenge.”265The relationship between biometrics and privacy is completely shaped by the
design of the systems and the framework within which private and personal
data is handled. Unfortunately, particularly in developing countries the
adoption of biometrics has not been accompanied by an adequate discussion
of privacy concerns.266 Biometrics can also be a “staunch friend of privacy”
when the technology is used for controlling access and to restrict unauthorized
personnel from gaining access to sensitive personal information. 267 While
evaluating privacy consequences of biometric technology, it is also important
to bear in mind that there cannot be an assumption that current privacy
protections which may be appropriate for the present state of technology will
also be sufficient in the future.268 Technology will continue to develop as will
the need to develop corresponding privacy protections. Concerns around
privacy and data protection will have to be addressed. “Fair Information
Practices (FIPs), Privacy by Design (PbD), and Privacy Impact Assessments
(PIAs)”269 might be useful in addressing these concerns. FIPs offer the
substantive content for a privacy policy. PbD offers a proactive approach to
265 Ibid
266 Ibid
267John D Woodward, Biometrics: Identifying Law Policy Concerns, in Biometrics (AK Jain A.K, R Bolle, and SPankanti eds.), Springer (1996)
268Robert Gellman, Privacy and Biometric ID Systems: An Approach Using Fair Information Practices forDeveloping Countries, CGD Policy Paper 028 Washington DC: Centre for Global Development (1 August,
2013), available at https://www.cgdev.org/sites/default/files/privacy-and-biometric-ID-systems_0.pdf
269Ibid218
PART Fthe protection of privacy that relies on advance planning rather responding to
problems after they arise. PIAs offer a formal way to consider and assess the
privacy consequences of technology or other choices, including consideration
of alternatives early in the planning stages. These three methodologies are
not mutually exclusive and can be combined to achieve the just and optimal
result for society.270
156 Of particular significance is the “Do Not Harm” principle which means
that biometrics and digital identity should not be used by the issuing authority,
typically a government, or adjacent parties to serve purposes that could harm
the individuals holding the identification.271 Identity systems, whether in paper
or digital, must work for the public good and must do no harm. However,
identity systems due to their inherent power, can cause harm when placed
into hostile hands and used improperly. Great care must be taken to prevent
this misuse. “Do No Harm” requires rigorous evaluation, foresight, and
continual oversight.272
157 There are many adversarial actors – from private espionage groups to
foreign governments, who may try to exploit data vulnerabilities. There is also
the threat of abuse of power by future governments. However, creating and
instilling strong privacy protection laws and safeguards may decrease these
270 Ibid
271Pam Dixon, A Failure to Do No Harm – India’s Aadhaar biometric ID program and its inability to protect privacy
in relation to measures in Europe and the U.S., Health and Technology, Vol. 7 (2017), at pages 539–567
272 Ibid219
PART Grisks- such as the framework provided by the EUGDPR273. In order to uphold
democratic values, the government needs to curtail its own powers concerning
the tracking of all citizens and prevent the needless collection of data. Such
protections may assuage the fears and uphold the long-term legitimacy of
Aadhaar. If the legislative process takes into account public feedback and
addresses the privacy concerns regarding Aadhaar, it would provide a solid
basis for more digital initiatives, which are imminent in today’s digital age.
However, in its current form, the Aadhaar framework does not address the
privacy concerns issues discussed in this section of the judgment.
G Legitimate state aimG.I Directive Principles
158 The Union government has contended that the legitimate state interest
in pursuing the Aadhaar project flows from the solicitous concern shown in the
text and spirit of the Constitution for realising socio-economic rights. The right
to food must, according to the view proposed before the Court, trump over the
right to privacy. The Aadhaar project, it has been urged, seeks to fulfil socio-
economic entitlements.
159 The Constituent Assembly did not work in a vacuum. The idealism with
which the members of the Assembly drafted the Constitution was the result of
273 General Data Protection Regulation, available at https://gdpr-info.eu/
220
PART Gthe “social content of the Independence movement”274, which came from the
awareness of the members about the existing conditions of the Indian
masses. Granville Austin has therefore referred to the Constitution as a “social
document” and a “modernizing force”, whose provisions reflect “humanitarian
sentiments”.275 The Constitution was the medium through which the nascent
Indian democracy was to foster many goals. Austin observes:
“Transcendent among [the goals] was that of social
revolution. Through this revolution would be fulfilled the
basic needs of the common man, and, it was hoped, this
revolution would bring about fundamental changes in the
structure of Indian society.”276 (Emphasis supplied)Austin has further observed:
“The first task of [the] Assembly… [was] to free India through
a new constitution, to feed the starving people, and to clothe
the naked masses, and to give every Indian the fullest
opportunity to develop himself according to his capacity.”277In his work titled “The Constitution of India: A Contextual Analysis”, Arun K
Thiruvengadam identified one such goal of the Constitution as follows:
“The Indian Constitution sought to lay the blueprint for
economic development of the vast subcontinental nation,
which was an imperative for a populace that was largely
illiterate, poor and disproportionately situated in rural societies
that had limited access to many essential social goods and
infrastructural facilities.278”
.“By establishing these positive obligations of the state, the
members of the Constituent Assembly made it the
responsibility of future Indian governments to find a middle
way between individual liberty and the public good,274 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999) at page xxii
275 Ibid, at pages 62, xiii and xxii
276 Ibid, at page xxi
277 Ibid, at page 32
278 Arun K Thiruvengadam, The Constitution of India: A Contextual Analysis, (Bloomsbury 2017), at page 1221
PART Gbetween preserving the property and the privilege of the
few and bestowing benefits on the many in order to
liberate ‘the powers of all men equally for contributions
to the common good’.”279 (Emphasis supplied)160 The draftpersons of the Constitution believed that the driving force to
bring social change rested with the State. This is evident from an instance
during the proceedings of the Constituent Assembly. Dr. B R Ambedkar had
submitted to the Assembly a social scheme to be incorporated into the
Constitution, which included provisions to cover every adult Indian by life
insurance. However, his social scheme was rejected on the ground that such
provisions should be left to legislation and need not be embodied into the
Constitution.280
161 The social and economic goals which were contemplated at the time of
Independence remain at the forefront of the State’s agenda even today.
Certain parts of the Constitution play a leading role in declaring the blueprint
of its social intent. Directive Principles were specifically incorporated into the
Constitution for this purpose. Though not enforceable in courts, the principles
are “fundamental in the governance of the country” and it is the duty of the
State to apply these principles while making laws.281 The essence of the
Directive Principles lies in Article 38 of the Constitution, which places an
obligation on the State to secure a social order for the promotion of the
279 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999) at page 66
280 Ibid, at page 99
281 Article 37, The Constitution of India222
PART Gwelfare of the people. Titled as Part IV of the Constitution, the Directive
Principles are symbolic of the welfare vision of the Constitution makers.
Article 38 of the Constitution provides that :
“(1) The State shall strive to promote the welfare of the people
by securing and protecting as effectively as it may a
social order in which justice, social economic and political,
shall inform all the institutions of the national life.(2) The State shall, in particular, strive to minimize the
inequalities in income, and endeavor to eliminate
inequalities in status, facilities and opportunities, not only
amongst individuals but also amongst groups of people
residing in different areas or engaged in different
vocations.”Clauses (b), (c), (e) and (f) of Article 39 provide thus :
“39. The State shall, in particular, direct its policy towards
securing -...
(b) that the ownership and control of the material resources of
the community are so distributed as best to subserve the
common good;(c) that the operation of the economic system does not result
in the concentration of wealth and means of production to
the common detriment;..
(e) that the health and strength of workers, men and women,
and the tender age of children are not abused and that
citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength;(f) that children are given opportunities and facilities to
develop in a healthy manner and in conditions of freedom
and dignity and that childhood and youth are protected
against exploitation and against moral and material
abandonment.”Article 41 speaks of the right to work, to education, and to public assistance :
“41. The State shall, within the limits of its economic capacity
and development, make effective provision for securing the
right to work, to education and to public assistance in cases223
PART Gof unemployment, old age, sickness and disablement, and in
other cases of undeserved want.”Article 43 contemplates a living wage and conditions of work which provide a
decent standard of life:
“43. The State shall endeavour to secure, by suitable
legislation or economic organisation or in any other way, to all
workers, agricultural, industrial or otherwise, work, a living
wage, conditions of work ensuring a decent standard of life
and full enjoyment of leisure and social and cultural
opportunities and, in particular, the State shall endeavour to
promote cottage industries on an individual or co-operative
basis in rural areas.”Article 47 casts a positive obligation upon the State to raise the level of
nutrition and the standard of living and to improve public health, as among its
primary duties. Reflecting a constitutional vision of socio-economic justice, the
values adopted in the Directive Principles are to be progressively realised in
the course of social and economic development.
162 In a recently published book titled “Supreme Court of India: The
Beginnings”, George H Gadbois, Jr. observes that the Indian Constitution,
“easily the lengthiest fundamental law in the world, probably ranks also as one
of the most eclectic ever produced”.282 Reflecting upon the constitutional
models from which the draftspersons of India’s Constitution drew sustenance,
Gadbois states:
“The Constitution makes provision for a parliamentary system
adapted from the British model, a federation patterned after
the Government of India Act of 1935 and the Canadian282George H Gadbois, JR, Supreme Court of India: The Beginnings (Vikram Raghavan and Vasujith Ram eds.),
Oxford University Press (2017), at page 193224
PART GConstitution, a set of emergency powers similar to those set
forth in the Weimar Constitution, a lengthy list of fundamental
rights adapted from the American experience with a Bill of
Rights, a Supreme Court endowed with express powers of
judicial review for which the American Supreme Court served
as the model, and list of “Directive Principles of State Policy”
patterned after the Constitution of Eire.”283Reflecting on the Directive Principles, Gadbois observes:
“Suffice to say that the directive principles have provided the
constitutional basis and justification for the Government’s
efforts to establish a welfare state, or, to use the designation
preferred by Indian leaders, a “socialist pattern of society”.284The sanction behind the Directives, according to him “is political and not
juridical”. On the other hand, the fundamental rights are justiciable because
Article 13 provides that a law which takes them away or abridges them will be
void. The conflict as Gadbois sees it is this:
“the directive principles are a set of instructions to the
Government of the day to legislate into being a welfare state,
which means, of course, an emphasis on the social and
economic uplift of the community at large and a
corresponding subtraction from individual rights. It is the duty
of the Government to apply these principles in making laws.
In short, the Constitution confers upon the Supreme Court the
task of making the fundamental rights meaningful against
possible infringements by the legislatures and executives,
and makes it obligatory for the Government to bring about
changes in the social and economic life of the nation,
changes which were bound to affect adversely some private
rights.It is conceivable at least, that both the Supreme Court and the
Government could have pursued their respective tasks
without conflict, but this did not happen. The legislatures,
purporting to be doing no more than carrying out the duties
prescribed in the directive principles, enacted legislation
which the Supreme Court found to be in conflict with some of
the fundamental rights.”285283 Ibid, at pages 193-194
284 Ibid, at page 195
285 Ibid, at pages 195-196225
PART GThis formulation by Gadbois formed part of a dissertation in April 1965. The
evolution of jurisprudence in India since then has altered the Constitutional
dialogue. Over time, the values enshrined in the Directive Principles have
been read into the guarantees of freedom in Part III. In incremental stages, the
realisation of economic freedom has been brought within the realm of
justiciability, at least as a measure of the reasonableness of legislative
programmes designed to achieve social welfare.
163 As our constitutional jurisprudence has evolved, the Directive Principles
have been recognised as being more than a mere statement of desirable
goals. By a process of constitutional interpretation, the values contained in
them have been adopted as standards of reasonableness to expand the
meaning and ambit of the fundamental rights guaranteed by Part III of the
Constitution.286 In doing so, judicial interpretation has attempted to imbue a
substantive constitutional content to the international obligations assumed by
India in the Universal Declaration of Human Rights and the International
Covenant on Economic and Social and Cultural Rights. Eradicating extreme
poverty and hunger is a significant facet of the Millennium Development Goals
of the United Nations. Social welfare legislation is but a step to achieve those
goals. The enactment of the National Food Security Act 2013 constituted a
milestone in legislative attempts to provide food security at the household
level. The Act discerns a targeted Public Distribution System for providing
food-grains to those below the poverty line. The rules contemplated in Section
286 Minerva Mills Ltd. v Union of India, (1980) 3 SCC 625226
PART G12(2)(b), incorporate the application of Information and Communication
Technology tools to ensure transparency of governance and prevent a
diversion of benefits. Another important piece of legislation has been the
Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) Act
2005 which was enacted for the enhancement of livelihood and security of
rural households. The Act guarantees a hundred days of wage employment in
every financial year to at least one able-bodied member of every household in
rural areas in public works programmes designed to create public assets.
Both the National Food Security Act 2013 and the MGNREGA Act 2005 follow
a rights-based approach in dealing with endemic problems of poverty and
deprivation in rural areas. Leveraging Aadhaar for biometric identification of
beneficiaries, it has been argued by the respondents, is an intrinsic part of the
legislative effort to ensure that benefits in terms of food security and
employment guarantee are channelised to those for whom they are meant.
G.2 Development and freedom164 Many scholars have delved into the substantive themes of the Indian
Constitution. Upendra Baxi has argued that the Indian Constitution has four
sovereign virtues: “rights, justice, development, and governance”287. Baxi
notes that they are “intertwined and interlocked with the rest and, in
contradictory combination/recombinations with both the constitutional and
287Upendra Baxi, “A known but an indifferent judge”: Situating Ronald Dworkin in contemporary Indian
jurisprudence, International Journal of Constitutional Law, (2003) at page 582227
PART Gsocial past and their future images”.288 Development is a leading aspect of our
constitutional vision. Development in the constitutional context is not only
economic development assessed in terms of conventional indicators such as
the growth of the gross domestic product or industrial output. The central
exercise of development in a constitutional sense is addressing the
“deprivation, destitution and oppression”289 that plague an individual’s life.
165 In a traditional sense, freedom and liberty mean an absence of
interference by the state into human affairs. Liberty assumes the character of
a shield. The autonomy of the individual is protected from encroachment by
the state. This formulation of political rights reflects the notion that the state
shall not be permitted to encroach upon a protected sphere reserved for
individual decisions and choices. What the state is prevented from doing is
couched in a negative sense. Civil and political rights operate as restraints on
state action. They postulate a restriction on the state. Isaiah Berlin formulates
the negative conception of liberty thus:
“I am … free to the degree to which no man or body of man
interferes with my activity. Political liberty is simply the area
within which a man can act unobstructed by others.”290166 Individual freedom, in this conception, imposes a duty of restraint on the
state. Modern ideas of neo liberalism have funnelled this notion. Neo-
liberalism postulates that the increasing presence of the state is a threat to
288 Ibid
289 Amartya Sen, Development as Freedom, Oxford University Press (2000), at page xii
290 Isaiah Berlin, Two Concepts of Liberty, available atdf
228
PART Gindividual autonomy. A free market economy with minimum state control, in
this view, is regarded as integral to protecting individual rights and freedoms.
FA Hayek construes the content of liberty as meaning the absence of
obstacles. Resultantly, this notion of liberty regards the role of the state in a
narrow jurisprudential frame. Attempts by the state to pursue social justice or
to use its authority for redistribution of wealth would in this conception not be a
legitimate use of state power.291
167 The notion that liberty only consists of freedom from restraint does not
complete the universe of its discourse. Broader notions of liberty are cognizant
of the fact that individuals must be enabled to pursue their capacities to the
fullest degree. Social and economic discrimination poses real barriers to
access education, resources and the means to a dignified life. This approach
to understanding the content of freedom construes the ability to lead a
dignified existence as essential to the conception of liberty and freedom. The
integral relationship between removal of socio-economic inequality and
freedom has been eloquently set out by Amartya Sen in “Development as
Freedom”292:
“Development requires the removal of major sources of
unfreedom: poverty as well as tyranny, poor economic
opportunities as well as systematic social deprivation, neglect
of public facilities as well as intolerance or overactivity of
repressive states. Despite unprecedented increases in
overall opulence, the contemporary world denies elementary
freedoms to vast numbers – perhaps even the majority-of
people. Sometimes the lack of substantive freedoms relates
directly to economic poverty, which robs people of the291 F A Hayek, The Constitution of Liberty, Routledge Kegan Paul, (1960) at pages 11, 207-208
292 Amartya Sen, Development as Freedom, Oxford University Press (2000) at page 3-4229
PART Gfreedom to satisfy hunger, or to achieve sufficient nutrition, or
to obtain remedies for treatable illnesses, or the opportunity to
be adequately clothed or sheltered, or to enjoy clean water or
sanitary facilities. In other cases, the unfreedom links closely
to the lack of public facilities and social care, such as the
absence of epidemiological programs, or of organized
arrangements for health care or educational facilities, or of
effective institutions for the maintenance of local peace and
order. In still other cases, the violation of freedom results
directly from a denial of political and civil liberties by
authoritarian regimes and from imposed restrictions on the
freedom to participate in the social, political and economic life
of the community.”In Sen’s analysis, human development is influenced by economic
opportunities, political liberties, social powers, and the enabling conditions of
good health, basic education, and the encouragement and cultivation of
initiatives. Taking it further, Sen has recognized an important co-relation in
terms of the non-availability of basic economic conditions:
“Economic unfreedom, in the form of extreme poverty, can
make a person a helpless prey in the violation of other kinds
of freedom… Economic unfreedom can breed social
unfreedom, just as social or political unfreedom can also
foster economic unfreedom.”293168 The notion of freedom as an agency has been developed by Sen as
part of the ‘capability theory’. The necessary consequence of focusing upon
major sources of unfreedom, in a social and economic perspective, is that the
removal of these restraints is essential to the realization of freedom. If true
freedom is to be achieved through the removal of conditions which cause
social and economic deprivation, the role of the state is not confined to an
absence of restraint. On the contrary, the state has a positive obligation to
293 Ibid, at page 8
230
PART Genhance individual capabilities. Martha Nussbaum294 argues that realising
freedom requires the state to discharge positive duties. Nussbaum expresses
a threshold level of capability below which true human functioning is not
available. Freedom is seen in terms of human development and is the process
by which individuals can rise above capability thresholds. In the realisation of
basic rights, the state is subject to positive duties to further the fulfilment of
freedom.
169 The broader conception of freedom and liberty which emerges from the
writings of Sen and Nussbaum has direct consequences upon how we view
civil and political rights and socio-economic rights. The distinction between
the two sets of rights becomes illusory once civil and political rights are
regarded as comprehending within their sweep a corresponding duty to take
such measures as would achieve true freedom. Henry Shue295 suggests that
rights give rise to corresponding duties. These duties include:
(i) a duty to respect;
(ii) a duty to protect; and
(iii) a duty to fulfil.
Duties of respect embody a restraint on affecting the rights of others. Duties
to protect mandate that the state must restrain others in the same manner as
it restrains itself. The state’s duty of non-interference extends to private
individuals. The duty to fulfil connotes aiding the deprived in the realisation of
294Martha Nussbaum, Women and Human Development, Cambridge University Press, (2000)
295Henry Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy, Princeton University Press, Second
Edition (1996)231
PART Grights. This imposes a corresponding duty to create the conditions which will
facilitate the realisation of the right. The right which is protected for the
individual will also signify an expectation that the state must create institutions
enabling the exercise of facilitative measures or programmes of action, of an
affirmative nature. The state has affirmative obligations to fulfil in the
realisation of rights. These positive duties of the state are readily apparent in
the context of welfare entitlements when the state must adopt affirmative
steps to alleviate poverty and the major sources of economic and social non-
freedom. But the thesis of Nussbaum and Shue have an important role for the
state to discharge in ensuring the fulfilment of political rights as well. In a
highly networked and technology reliant world, individual liberty requires the
state to take positive steps to protect individual rights. Data protection and
individual privacy mandate that the state put in place a positive regime which
recognises, respects and protects the individual from predatory market places.
The state has a positive duty to create an autonomous regulatory framework
in which the individual has access to remedies both against state and non-
state actors, both of whom pose grave dangers of assault on the individual as
an autonomous entity. Failure to discharge that duty is a failure of the state to
respect, protect and fulfil rights.
Dr Ambedkar’s prophetic final address to the Constituent Assembly elaborates
that vision:
“On the social plane, we have in India a society based on the
principle of graded inequality with elevation for some and
degradation for others. On the economic plane, we have a
society in which there are some who have immense wealth as
against many who live in abject poverty. On the 26th of232
PART GJanuary 1950, we are going to enter into a life of
contradictions. In politics we will have equality and in social
and economic life we will have inequality...How long shall we
continue to live this life of contradictions? How long shall we
continue to deny equality in our social and economic life? If
we continue to deny it for long, we will do so only by putting
our political democracy in peril. We must remove this
contradiction at the earliest possible moment or else those
who suffer from inequality will blow up the structure of political
democracy which [this] Assembly has [so] laboriously built
up.”296The pursuit of social welfare and security is a central aspect of development.
The State, in Ambedkar’s vision, would be the main instrumentality in the
debate on development, which has to revolve around the social, economic
and political spheres and would be guided by the values of the Constitution.
170 Social opportunities are the facilities and “arrangements that society
makes” for education, healthcare and nutrition, which “influence the
individual’s substantive freedom to live better”.297 Social security measures
include programmes which intend to promote the welfare of the population
through assistance measures guaranteeing access to sufficient resources.
The social security framework is not only important for individual
development, but also for effective participation in economic and political
activities. Social security programmes flow from ‘economic and social rights’−
also called as “welfare rights” 298
or second generation rights. These rights,recognized for the first time under the Universal Declaration on Human
Rights, 1948 include a large list of freedoms and claims under its “protective
296 Constituent Assembly Debates (25 November 1949)
297 Amartya Sen, Development as Freedom, Oxford University Press (2000), at page 39
298 Amartya Sen, The Idea of Justice, Penguin (2009) at pages 379-380233
PART Gumbrella”. They include not only basic political rights, but the right to work, the
right to education, protection against unemployment and poverty, the right to
join trade unions and even the right to just and favourable remuneration. 299
Social security programmes as an instrument for the removal of global poverty
and other economic and social deprivations are at the centre stage in the
global discourse. Article 22 of the Universal Declaration of Human Rights
expressly recognises that every member of society is entitled to the right to
social security and to the realisation of economic, social and cultural rights.
Those rights are stated to be indispensable for dignity and to the free
development of personality. The realisation of these rights has to be facilitated
both through national efforts and international co-operation and in accordance
with the organisation and the resources of each state. Article 22 stipulates
that:
“Article 22
Everyone, as a member of society, has the right to social
security and is entitled to realization, through national effort
and international co-operation and in accordance with the
organization and resources of each State, of the economic,
social and cultural rights indispensable for his dignity and the
free development of his personality.”In a similar vein, Article 23 comprehends a conglomeration of rights including
(i) the right to work; (ii) free choice of employment; (iii) just and favourable
conditions of work; (iv) protection against unemployment; (v) equal pay for
equal work without any discrimination; (vi) just and favourable remuneration
for work; and (vii) formation and membership of trade unions. Article 23
299 Ibid, at page 380
234
PART Gconstrues these rights as a means of ensuring both for the individual and the
family, an “existence worthy of human dignity” supplemented if necessary “by
other means of social protection”.
India having adopted the UDHR, its principles can legitimately animate our
constitutional conversations. Both Articles 22 and 23 are significant in
recognising economic rights and entitlements in matters of work and social
security. Both the articles recognise the intrinsic relationship between human
dignity and the realisation of economic rights. Measures of social protection
are integral to the realisation of economic freedom and to fulfil the aspiration
for human dignity.
171 India adopted and ratified the Covenant on Civil and Political Rights as
well as the Covenant on Economic, Social and Cultural Rights. India acceded
to the Covenant on Economic, Social and Cultural Rights on 10 April 1979.
According to the Preamble, the states who are parties to the Covenant have
recognized that:
“the ideal of free human beings enjoying freedom from fear
and want can only be achieved if conditions are created
whereby everyone may enjoy his economic, social and
cultural rights, as well as his civil and political rights.”Freedom is thus defined in terms of the absence of fear and want. Moreover,
freedom consists in the enjoyment of a conglomeration of rights: economic,
235
PART Gsocial and cultural as well as civil and political rights. There is in other words
no dichotomy between the two sets of rights.
Article 11 of the Covenant on Economic, Social and Cultural Rights imposes
positive obligations on the covenanting states:
“Article 11.
1. The States Parties to the present Covenant recognize the
right of everyone to an adequate standard of living for
himself and his family, including adequate food, clothing
and housing, and to the continuous improvement of living
conditions. The States Parties will take appropriate steps
to ensure the realization of this right, recognizing to this
effect the essential importance of international
cooperation based on free consent.2. The States Parties to the present Covenant, recognizing
the fundamental right of everyone to be free from hunger,
shall take, individually and through international co-
operation, the measures, including specific programmes,
which are needed:(a) To improve methods of production, conservation and
distribution of food by making full use of technical and
scientific knowledge, by disseminating knowledge of the
principles of nutrition and by developing or reforming
agrarian systems in such a way as to achieve the most
efficient development and utilization of natural resources;(a) Taking into account the problems of both food-importing
the food-exporting countries, to ensure an equitable
distribution of world food supplies in relation to need.”172 The Masstricht Guidelines on Violations of Economic, Social and
Cultural Rights (January 1997) stipulate that:
“It is now undisputed that all human rights are indivisible,
interdependent, interrelated and of equal importance for
human dignity. Therefore, states are as responsible for
violations of economic, social and cultural rights as they are
for violations of civil and political rights.”236
PART GThe Guidelines also stipulate that like civil and political rights, economic,
social and cultural rights impose three different types of obligations on states :
the obligation to respect, protect and fulfil. The guidelines recognize that
violations of economic, social and cultural rights can occur through acts of
commission and omission on the part of states. The omission or failure of
states to take measures emanating from their legal obligations may result in
such violations. Among them is the failure to enforce legislation or to put into
effect policies designed to implement the provisions of the Covenant. In
similar terms, the Limburg Principles on the Implementation of the
International Covenant on Economic, Social and Cultural Rights cast
affirmative duties on states to take immediate steps towards realizing the
rights contained in the Covenant. Clauses 16, 21 and 27 of the guidelines are
thus:
“16. All States parties have an obligation to begin
immediately to take steps towards full realization of the
rights contained in the Covenant.21. The obligation “to achieve progressively the full
realization of the rights” requires States parties to move
as expeditiously as possible towards the realization of
the rights. Under no circumstances shall this be
interpreted as implying for States the right to defer
indefinitely efforts to ensure full realization. On the
contrary all States parties have the obligation to begin
immediately to take steps to fulfil their obligations under
the Covenant.27. In determining whether adequate measures have been
taken for the realization of the rights recognized in the
Covenant attention shall be paid to equitable and
effective use of and access to the available resources.”The office of the UN High Commissioner for Human Rights notified General
Comment No. 3, which was adopted at the fifth session of the Committee on
237
PART GEconomic, Social and Cultural Rights on 14 December 1990. The Comment
states:
“…while the full realization of the relevant rights may be
achieved progressively, steps towards that goal must be
taken within a reasonably short time after the Covenant’s
entry into force for the States concerned. Such steps should
be deliberate, concrete and targeted as clearly as possible
towards meeting the obligations recognized in the Covenant.”Similarly, General Comment No. 12 on the right to adequate food was
adopted at the twentieth session of the Committee on Economic, Social and
Cultural Rights on 12 May 1999. It states :
“The Committee observes that while the problems of hunger
and malnutrition are often particularly acute in developing
countries, malnutrition, under-nutrition and other problems
which relate to the right to adequate food and the right to
freedom from hunger also exist in some of the most
economically developed countries, Fundamentally, the roots
of the problem of hunger and malnutrition are not lack of food
but lack of access to available food, inter alia because of
poverty, by large segments of the world's population.”The emphasis on the lack of access to available food is significant to the
present discourse. It indicates that access to food requires institutional
mechanisms to ensure that the available resources reach the beneficiaries for
whom they are intended.
173 Section 2(1)(f) of the Protection of Human Rights Act 1993 specifically
adverts to the Covenant on Economic, Social and Cultural Rights:
“2.(1)(f) “International Covenants” means the International
Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights adopted
by the General Assembly of the United Nations on 16th
December, 1996 and such other Covenant or Convention238
PART Gadopted by the General Assembly of the United Nations as
the Central Government may, by notification, specify;”Under Section 12(f), the National Human Rights Commission has been
entrusted with the function of studying treaties and other international
instruments of human rights and to make recommendations for their effective
implementation. Parliament has statutorily incorporated India’s obligations at
international law under the above covenants as a part of the national effort to
realise fundamental human freedoms. Achieving economic freedom is integral
to that mission. In his classic work “The Idea of Justice”, Amartya Sen has
observed in this regard:
“The inclusion of second-generation rights makes it possible
to integrate ethical issues underlying general ideas of global
development with the demands of deliberative democracy,
both of which connect with human rights and quite often with
an understanding of the importance of advancing human
capabilities.”300174 Social security thus acts as an underpinning link with development.
There is also a two-way relationship between development and social security
(expansion of human capability). Dreze and Sen have dealt with this
relationship in their following observation:
“Growth generates resources with which public and private
efforts can be systematically mobilized to expand education,
health care, nutrition, social facilities, and other essentials of
fuller and freer human life for all. And the expansion of human
capability, in turn, allows a faster expansion of resources and
production, on which economic growth ultimately depends…
Well-functioning public services, especially (but not only) in
fields such as education and health, are also critical in
fostering participatory growth as well as in ensuring that300 Amartya Sen, The Idea of Justice, Penguin (2009) at page 381
239
PART Ggrowth leads to rapid improvements in people’s living
conditions.”301The authors have further observed that apart from education and healthcare,
India faces larger issues of accountability in the “public sector as a whole”. 302
The lack of progress in public services acts as a huge barrier to improve the
quality of life of people.303 It has been observed:
“The relative weakness of Indian social policies on school
education, basic healthcare, child nutrition, essential land
reform and gender equity reflects deficiencies of politically
engaged public reasoning and social pressure, not just
inadequacies in the official thinking of the government.”304The future of Indian democracy therefore depends on how it engages itself
with the issues of accountability in transfer of basic human facilities to the
common man.
175 The State has a legitimate aim to ensure that its citizens receive basic
human facilities. In order to witness development, the huge amount of
expenditure that the State incurs in providing subsidies and benefits to the
common citizens, must be accompanied by accountability and transparency.
Legislative and institutional changes are often capable of creating an
atmosphere of transparency and accountability. The most visible example of a
legislative enactment which brought institutional changes is the Right to
Information Act, 2005. Commentators have often highlighted the importance
301 Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at pages x and xi
302 Ibid, at page xi
303 Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at page 33
304 Amartya Sen, The Idea of Justice, Penguin (2009) at page 349240
PART Gof this legislation by deliberating upon how it has been successful at “curbing
corruption and restoring accountability in public life”305. According to the State,
though the Aadhaar programme is not in itself a social security programme,
the institutional framework established by the Act, seeks to act, in a way, as
an extension of social security programmes. The State has a legitimate
concern to check that the welfare benefits which it marks for those, who are
entitled, reach them without diversion. The Aadhaar programme, it is argued,
acts as an instrument for the realization of the benefits arising out of the social
security programmes. The Aadhaar programme, it was further contended,
fulfils the State’s concern that its resources are utilised fully for human
development.
It has been contended by the Respondents that since the establishment of the
UIDAI in 2009, its basic mandate is to provide a unique identity number to
residents. The number would subserve two purposes. First, it would serve as
a proof of identity. Second, it would be used for the purpose of identifying
beneficiaries for the transfer of social welfare benefits, provided by the state.
The rationale for establishing a method of identification is to ensure that the
benefits provided by social welfare programmes formulated by the State reach
the beneficiaries for whom they are intended. As a policy intervention, a
unique measure of identification is intended, it has been argued, to secure
financial inclusion. A significant hurdle in the success of social welfare
programmes is that benefits do not reach the targeted population. The reason
305 Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at page 100241
PART Gfor this may have something to do intrinsically with the condition of the
individuals as much as with their larger socio-economic circumstances.
Migrant labour and labour in the unorganised sector lacks fixity of abode. The
nature of their work renders their lives peripatetic. Nomadic tribes, particularly
in inaccessible areas, may not have fixed homes. In many cases, traditional
occupations require individuals to move from place to place, dependent on
seasonal changes. Then again, groups of citizens including women, children
and the differently abled may face significant difficulties in accessing benefits
under publicly designed social welfare programmes as a result of factors such
as gender, age and disability.
176 Unequal access to welfare benefits provided by the State becomes a
significant source of deprivation resulting in a denial of the means to sustain
life and livelihood. Before the adoption of Aadhaar based-identity, there were
multiple platforms for identification of residents. They created a situation
where those with no identity had no access to the means of sustaining a
dignified life. Equally significant, as a policy intervention, was the issue of
capture. While on the one hand, large swathes of the population had no
access to welfare assistance, benefits could be captured by persons not
entitled to them either by the assertion of fake or multiple identities. Setting up
a fake identity enables an individual to pass off as another and to secure a
benefit to which that individual is not entitled. Fake identities compound the
problem of capture by allowing individuals to receive multiple benefits through
242
PART Gshell identities. Policy makers were confronted with the serious problems
posed by fake and multiple identities since they imposed a burden on the
exchequer while at the same time diluting the efficacy of state designed social
welfare measures. The burden on the exchequer is illustrated by situations
where persons who are not entitled to benefits secure them in the guise of
being persons entitled to them. When imposters secure benefits which are
not meant for them, they deprive in the process, persons who are genuinely
entitled to benefits. The class of beneficiaries of social welfare programmes is,
so to speak, adulterated by the capture of benefits by those not entitled to
them. This raises serious concerns of the deprivation of human rights. The
capture of benefits has the consequence of depriving those to whom these
benefits should legitimately flow, of the measures designed by the state to
protect its populace from human want and need. The resources deployed by
the state are from its public revenues. When designing a unique measure of
identification, the state must be guided by the necessity of ensuring financial
inclusion and of protecting against financial exclusion. Every citizen who is
eligible for social welfare benefits should obtain them. No person who is
entitled should be excluded. Individuals who do not qualify for social welfare
benefits should not capture them by passing off as individuals entitled.
Enforcing and implementing a robust platform for identification of beneficiaries
must ensure that social welfare benefits reach the hands of those who fulfil the
conditions of eligibility and are not captured by rent-seeking behaviour of
those to whom social welfare benefits are not designed. This constitutes a
243
PART Glegitimate object of state policy. Reaching out to the targeted population is a
valid constitutional purpose. Social welfare measures are an intrinsic part of
state policy designed to facilitate dignified conditions of existence to the
marginalised, especially those who live below the poverty line. Identification
of beneficiaries is crucial to the fulfilment of social welfare programmes.
177 These concerns form the basis of the Aadhaar (Targeted Delivery of
Financial and other Subsidies, Benefits and Services) Act, 2016. As its
Statement of Objects and Reasons explains:
“The correct identification of targeted beneficiaries for delivery
of various subsides, benefits, services, grants, wages and
other social benefits schemes which are funded from the
Consolidated Fund of India has become a challenge for the
Government. The failure to establish identity of an individual
has proved to be a major hindrance for successful
implementation of these programmes. This has been a grave
concern for certain categories of persons, such as women,
children, senior citizens, persons with disabilities, migrant
unskilled and unorganised workers, and nomadic tribes. In
the absence of a credible system to authenticate identity of
beneficiaries, it is difficult to ensure that the subsidies,
benefits and services reach to intended beneficiaries.”The Statement of Objects and Reasons indicates that the enactment is
designed to ensure “the effective, secure and accurate delivery of benefits,
subsidies and services from the Consolidated Fund of India to targeted
beneficiaries”. The architecture of the law contemplates regulating the
following aspects:
“(a) issue of Aadhaar numbers to individuals on providing ..
demographic and biometric information to the Unique
Identification Authority of India;(b) requiring, Aadhaar numbers for identifying an
individual for delivery of benefits, subsidies, and244
PART Gservices (where) the expenditure is incurred from or
the receipt therefrom forms part of the Consolidated
Fund of India;(c) authentication of the Aadhaar number of an Aadhaar
number holder in relation to his demographic and
biometric information;(d) establishment of the Unique Identification Authority of
India… to perform functions in pursuance of the
objectives above;(e) maintenance and updating the information of
individuals in the Central Identities Data Repository in
such manner as may be specified by regulations;(f) measures pertaining to security, privacy and
confidentiality of information in possession or control
of the Authority including information stored in the
Central Identities Data Repository; and(g) offences and penalties for contravention of relevant
statutory provisions.”The Preamble to the enactment indicates that Parliament designed the
legislation as an instrument of good governance, to secure an “efficient,
transparent and targeted delivery of subsidies, benefits and services” for
which the expenditure is incurred from the Consolidated Fund to resident
individuals.
178 The Aadhaar platform is not a social welfare benefit in itself.
Essentially, what it seeks to achieve is to provide a unique identity to every
resident. This identity, in the form of an Aadhaar number, is obtained upon the
submission of demographic and biometric information in the course of
enrolment. The legislative design envisages that the identity of the individual is
verified through the process of authentication by which the biometric data
stored in the central repository is matched with the biometric information
submitted for authentication. Aadhaar is a platform for verification of identity
245
PART Gbased principally on biometric information. In facilitating the process of
establishing the identity of the individual who seeks social welfare benefits
envisaged in Section 7, Aadhaar has an instrumental role. It is instrumental in
the sense that as a measure of state policy, it seeks to bring about financial
inclusion by providing a means of identification to every segment of the
population including those who may not have been within the coverage of
traditional markers of identity. As an instrument for verifying identity, Aadhaar
seeks to ensure that social welfare benefits are obtained by persons eligible to
do so and are not captured by the ineligible. Relying on an asserted reliability
of biometric markers, the Aadhaar platform attempts to eliminate, or at least to
curb rent-seeking behaviour.
The rationale underlying Section 7 is the targeted delivery of services, benefits
and subsidies which are funded from the Consolidated Fund of India. In the
seven decades since Independence, the Union Government has put into place
social welfare measures including the public distribution system, free
education, scholarships, mid-day meals and LPG subsidies to ameliorate the
conditions of existence of the poor and marginalised. There is a state interest
in ensuring that the welfare benefits which the state provides reach those for
whom they are intended.
246
PART GG.3 Identity and Identification
179 Identity is inseparable from the human personality. An identity is a
statement of who an individual is. Our identities define who we are. They
express what we would wish the world to know us as. The human personality
is, at a certain level, all about identity, for it is through the assertion of identity
that each individual seeks to preserve the core of his or her humanity. An
identity is the persona which an individual puts forth in a multitude of
relationships. The significance of our identity lies in our ability to express the
core of our beings. When the Constitution protects our right to be and to be
what we are, it creates a space where the individual is immune from
interference. By recognizing our liberty as autonomous persons, the
Constitution recognizes our ability to preserve and shape our identities in
interactions with others.
Identity may be, but is not always based upon immutable characteristics that
are defined at birth. What is immutable may not be or, at any rate, is not
generally understood as being capable of change. But even here, the
immutability of our features is relative to our own existence and is capable of
being shaped by the social milieu in which human beings lead their lives.
Features about our biological being which are defined at birth are, after all, not
as constraining upon our identities as is often assumed to be the case. That
is because these immutable features are also constantly engaged with our
247
PART Gsocial and cultural environment. They shape and are influenced by that
environment.
180 There is a distinction between identity and identification. Identification is
a matter of proof- of establishing that a person is actually, the individual who
claims a right or entitlement. In their daily interactions, individuals have to
distinguish themselves from others, whether it be in the course of
employment, travel, civil union, location, community perspectives, revenue
obligations or access to benefits. Identification is a proof of identity or
evidence of identity. Identification is mandatory in numerous activities of day
to day life: a passport is necessary for international travel, a voter ID is
required for exercising electoral rights, a driving license is necessary to ply a
vehicle and an arms license is needed to possess a fire arm. The holder of a
policy of medical insurance will have a card depicting his or her identity which
is a proof of holding a valid policy for availing medical benefits.
181 Under international law, recognition of identity is an obligation of a
nation state. Article 6 of the Universal Declaration of Human Rights provides
that “everyone has the right to recognition everywhere as a person before the
law”. Article 16 of the International Covenant on Civil and Political Rights is in
similar terms. Article 8 of the UN Convention on the Rights of the Child
mandates that State parties undertake to respect the right of the child to
248
PART Gpreserve his or her identity, including nationality, name and family relations as
recognized by law without unlawful interference. The importance of identity is
recognized by Article 3 of the American Convention on Human Rights. The
Inter-American Juridical Committee (IAJC) of the Organisation of American
States (OAS) has in fact provided that:
“12. The right to identity is consubstantial to the attributes and
human dignity. Consequently it is an enforceable basic
human right erga omnes as an expression of a collective
interest of the overall international community that does not
admit derogation or suspension in cases provided in the
American Convention on Human Rights.…
15. The Committee considers that the right to identity is,
among its most relevant implications and scope, to constitute
an autonomous right that is based on the regulations of
international law and those that derive from the actual cultural
elements considered in the domestic legal systems of the
States, in order therefore to satisfy the specificity of the
individual, with his or her rights that are unique, singular and
identifiable.”306182 In National Legal Services Authority v Union of India307, this Court
held that gender identity is fundamental to and an essential component for the
enjoyment of civil rights by the transgender community. Self-determination of
identity has been held to be an essential facet of Article 21. In the view of this
Court:
“74. The recognition of one's gender identity lies at the heart
of the fundamental right to dignity. Gender, as already
indicated, constitutes the core of one's sense of being as well306 Opinion on the Right to Identity, 2007, available at
http://www.oas.org/en/sla/iajc/docs/ijc_current_agenda_Right_to_Identity.pdf
307 (2014) 5 SCC 438249
PART Gas an integral part of a person's identity. Legal recognition of
gender identity is, therefore, part of right to dignity and
freedom guaranteed under our Constitution.75. Article 21, as already indicated, guarantees the protection
of "personal autonomy" of an individual. In Anuj Garg v. Hotel
Association of India33 (SCC p. 15, paras 34-35), this Court
held that personal autonomy includes both the negative right
of not to be subject to interference by others and the positive
right of individuals to make decisions about their life, to
express themselves and to choose which activities to take
part in. Self-determination of gender is an integral part of
personal autonomy and self-expression and falls within the
realm of personal liberty guaranteed under Article 21 of the
Constitution of India.”Identity assumes a complex character in a networked society. Shah adopts
the following definition of a networked society308:
“a network society is a society where the key social structures
and activities are organized around electronically processed
information networks. So it’s not just about networks or social
networks, because social networks have been very old forms
of social organization. It’s about social networks which
process and manage information and are using micro-
electronic based technologies”309.183 In a networked society, an individual is a data subject and a quantified
self. The individual is a data subject since his or her data is stored in a
database. Shah notes that there is an ambivalence about whether the data
subject is the individual whose identity becomes the basis of validating the
data or whether the data subject is the identity of the individual as it gets
constructed through data sets. The individual becomes a quantified self
where data which is distributed across various systems is “curated” to form a
comprehensive profile of an individual.
308Nishant Shah, Identity and Identification – the Individual in the Time of Networked Governance, Socio Legal
Review, available at
the-Individual-in-the-Time-of-Networked-Governance.pdf
309Manuel Castells, Conversation with Manuel Castells, Globetrotter, available athttp://globetrotter.berkeley.edu/people/Castells/castells-con4.html
250
PART G184 The Aadhaar project was intended to allow a unique identity to enable
individuals to “navigate through disconnected and often hostile governmental
database systems”. Shah notes that ever since 2009, the terms ‘identity’ and
‘identification’ were used as part of the Aadhaar project inter-changeably,
introducing “a curious conflation and interoperability”310 between these
notions. ‘Identification’ is the ability of a network device to identify an individual
by scanning unique data sets, from personal information to biometric details
such as finger print and iris scan, which would be stored in a massive
centralized database. UIDAI posited that identification took place through its
yes/no mechanism by which the centralised database would provide a
response to whether the biometric details submitted for authentication match
those in the repository. Technologically, at this level, Aadhaar was to be a
means of identification. Yet at another level, the Aadhaar project also
offered itself as providing a documentary identity to persons who may not
have possessed one at all. Shah, in the course of his article, has this to state
about the conflation between identity and identification in the Aadhaar project:
“This ambiguity and conflation cannot merely be attributed to
a semantic slip of the keyboard, but to a much larger
phenomenon which points to the construction of a new notion
of the individual, through big data streams and measures of
self-quantification. It offers us a techno-social framework
where the machine function of identification is wedded to the
human expression of identity, and thus offers an inroad into
looking at what happens when our identities are mediated,
mitigated, facilitated, and contained by the ways in which the
networked technologies of authentication and verification
operate. It is a crucial shift where the identity of a person is
ontologically defined through the logics and logistics of310Nishant Shah, Identity and Identification – the Individual in the Time of Networked Governance, Socio Legal
Review, available atthe-Individual-in-the-Time-of-Networked-Governance.pdf
251
PART Gnetworked computation that form the Aadhaar project. This is
why the Aadhaar enrolment system, for instance, does not
check the veracity of the information that the individual gives
it. For the enrolment, the individual needs no proof to
substantiate or validate the information provided. The name,
the address, the description, etc. are empty signifiers and it is
possible for anybody to assume any identity as long as they
give the inviolable data of biometric recognition. Thus, the
identity of the person being enrolled and registered is almost
insignificant and has value only in how it would now always
identify the individual through the credentials or information
provided. The Aadhaar network governance system is
concerned only with the identifiers rather than the narrative,
iterative, forms of identity and expression, and this is where
we begin examining the ways in which identity is shaped,
understood, and used to construct the notion of an individual
in computation systems.”311185 Identity includes the right to determine the forms through which identity
is expressed and the right not to be identified. That concept is now “flipped” so
that identification through identifiers becomes the only form of identity in the
time of database governance. This involves a radical transformation in the
position of the individual.
The submission which has been urged on behalf of the petitioners is that an
individual entitled to the protection of the freedoms and liberties guaranteed by
Part III of the Constitution must have the ability to assert a choice of the
means of identification for proving identity. Requiring an individual to prove
identity on the basis of one mode alone will, it is submitted, violate the right of
self-determination and free choice.
311 Ibid
252
PART G186 The Aadhaar (Enrolment and Update) Regulations, 2016 stipulate in
Regulation 4, the demographic information which is required for enrolment.
Regulation 4 is in the following terms:
“4. Demographic information required for enrolment.-
(1) The following demographic information shall be collected
from all individuals undergoing enrolment (other than children
below five years of age):(i) Name;
(ii) Date of Birth;
(iii) Gender;
(iv) Residential Address.(2) The following demographic information may also
additionally be collected during enrolment, at the option of the
individual undergoing enrolment:(i) Mobile number;
(ii) Email address.
(3) In case of Introducer-based enrolment, the following
additional information shall be collected:(i) Introducer name;
(ii) Introducer’s Aadhaar number.
(4) In case of Head of Family based enrolment, the following
additional information shall be collected:(i) Name of Head of Family;
(ii) Relationship;
(iii) Head of Family’s Aadhaar number;
(iv) One modality of biometric information of the Head of
Family.(5) The standards of the above demographic information shall
be as may be specified by the Authority for this purpose.253
PART G
(6) The demographic information shall not include race,
religion, caste, tribe, ethnicity, language, record of
entitlement, income or medical history of the resident.”Regulation 9 postulates that at the time of enrolment, the enrolling agency
shall inform the individual who is undergoing enrolment of (i) the manner in
which the information shall be used; (ii) the nature of recipients with whom the
information is intended to be shared during authentication; and (iii) the
existence of a right to access information. Under Regulation 10, a resident
seeking enrolment has to submit an application for enrolment together with
copies of supporting documents for proof of identity, address and date of birth.
Schedule II indicates a list of supporting documents which are accepted for
verification of identity, address and date of birth. If a resident does not
possess the supporting documents, enrolment is contemplated through an
introducer or a Head of Family. Schedule II contains as many as eighteen
documents which are accepted towards proof of identity and thirty three
documents as proof of address. The Aadhaar Act, it has been contended,
allows the resident to identify herself through any of the stipulated documents
for the purpose of availing an Aadhaar number. The Aadhaar number can be
availed of to secure a subsidy, benefit or service under Section 7, the
expenditure of which is drawn from the Consolidated Fund of India.
Article 266 of the Constitution provides as follows:
“266. Consolidated Funds and public accounts of India and of
the States254
PART G(1) Subject to the provisions of Article 267 and to the
provisions of this Chapter with respect to the assignment of
the whole or part of the net proceeds of certain taxes and
duties to States, all revenues received by the Government of
India, all loans raised by that Government by the issue of
treasury bills, loans or ways and means advances and all
moneys received by that Government in repayment of loans
shall form one consolidated fund to be entitled the
“Consolidated Fund of India”, and all revenues received by
the Government of a State, all loans raised by that
Government by the issue of treasury bills, loans or ways and
means advances and all moneys received by that
Government in repayment of loans shall form one
consolidated fund to be entitled “the Consolidated Fund of the
State”.(2) All other public moneys received by or on behalf of the
Government of India or the Government of a State shall be
credited to the public account of India or the public account of
the State, as the case may be
(3) No moneys out of the Consolidated Fund of India or the
Consolidated Fund of a State shall be appropriated except in
accordance with law and for the purposes and in the manner
provided in this Constitution.”187 The Union Government is the custodian of the Consolidated Fund under
Article 266. All revenues received by the government form part of the
Consolidated Fund. No part of its proceeds can be “appropriated except in
accordance with law and for the purpose and in the manner” which is provided
by the Constitution. As the custodian of the fund, the Union Government, it
has been submitted by the respondents, had the Aadhaar Act enacted through
Parliament. The Act places a restriction on the right of the individual to utilize
any other identification save and except for the Aadhaar number, for the
purpose of availing of a subsidy, benefit or service that involves an
expenditure from the Consolidated Fund. The purpose of making an Aadhaar
number mandatory for the delivery of benefits, services and subsidies funded
from the Consolidated Fund is to confirm the identity of the individual to whom
255
PART Gthe benefit is being transferred. This was in order to ensure that the benefits
under social welfare programmes funded by the Consolidated Fund reach the
hands of targeted beneficiaries. The Union Government which expends huge
sums of money in its welfare schemes was apprised of the fact that money
which was meant for the beneficiaries was being siphoned off through ghosts
and duplicates. As a result, genuine beneficiaries would be deprived of their
basic rights. Cornering of benefits by the creation of bogus identities seriously
impacted upon social welfare measures adopted by the Union Government as
an instrument of fostering social and economic development. It was to deal
with this evil that the Aadhaar project assumed a statutory character in 2016.
Through the provisions of the law, Parliament intended that Aadhaar should
become an effective instrument of de-duplication. This is premised on the
view of the legislating body that the use of biometrics would render it difficult, if
not impossible, to obtain fake identities. Aadhaar, in other words, was
adopted as a matter of legislative policy to curb the evil of shell companies
and ghost identities. Where the State expends large sums on social welfare
projects, it has a legitimate interest in ensuring that the resources which it
deploys reach the hands of those for whom they are meant.
Thus, there are two important facets of the Aadhaar regime which must be
noticed. The first is that under Section 3, it is a voluntary option of the
individual to choose Aadhaar as a form of identification. However, if the
individual seeks a subsidy, benefit or service for which the expenditure is
256
PART Gincurred from the Consolidated Fund of India, Aadhaar becomes a mandatory
requirement. The second important feature is the requirement of informed
consent when the individual parts with identity information. The mandate of
Section 7 must be understood from the perspective of the obligation imposed
on the State to ensure effective and efficient utilization of public resources.
Article 266 reinforces that mandate in its stipulation that all monies out of the
Consolidated Fund of India can only be appropriated in accordance with law,
for the purpose of and in the manner provided by the Constitution. The State
is a trustee of public resources. The adoption of Aadhaar is in fulfilment of the
doctrine of public trust. The state is under a bounden obligation to ensure that
its revenues which are placed in the Consolidated Fund are appropriated in
accordance with law and are not diverted for extraneous purposes. These
principles have been elucidated in the decisions of this Court in Natural
Resources Allocation, In Re, Special Reference No.1 of 2012312, Centre
for Public Interest Litigation v Union of India313, Reliance Telecom
Limited v Union of India314.
The mandate of Section 7 is founded on a legitimate state interest. The state
has a vital interest in ensuring that public revenues are duly accounted, that
the Consolidated Fund is utilized for purposes authorized by law; that funds
for development reach genuine beneficiaries and that scarce public resources
312 (2012) 10 SCC 1
313 (2012) 3 SCC 1
314 (2017) 4 SCC 269257
PART Hmeant for those at the foot of the socio-economic ladder are not mis-utilized
by rent-seeking behavior.
H Proportionality
188 The petitioners have challenged the constitutional validity of the
Aadhaar project and the Aadhaar Act on various grounds including the
violation of the fundamental rights of citizens including the right to privacy and
dignity. The respondents, in defense, have argued that Aadhaar is an enabler
of identity and empowers citizens to realise various facets of the right to life,
such as the right to food and livelihood.
189 The learned Attorney General has argued that the use and
authentication of the Aadhaar number is a necessary and proportionate
measure to ensure targeted delivery of financial benefits and services and to
prevent ‘leakages’. He submits that the Aadhaar scheme satisfies the test of
proportionality: it has a rational nexus with the goal that it seeks to achieve,
and since welfare benefits enhance the right to live with dignity, the latter will
prevail over the right to privacy. Mr Rakesh Dwivedi, learned Senior Counsel
has argued that the “least intrusive test” is not accepted in Indian
jurisprudence. He submits that even if the test were to be accepted, the
exercise of determining whether a measure is the least intrusive is a technical
issue for which the Court lacks the requisite expertise. He states that this
258
PART Hexercise “cannot be undertaken in the courts with the assistance of lawyers
who equally have no expertise in the field” and that “such an exercise involves
research, study by the experts and courts cannot substitute the same”. Mr
Gopal Sankaranarayanan, learned Counsel, submits that the means adopted
“at the moment” are no more than is necessary for ensuring that the “avowed
objects” are served, and that they balance individual interests (fundamental
rights) with societal interests (directive principles). He further submits that the
fact there are various limitations in place ensure that “some balance” is
achieved between the breach of privacy and the object sought to be achieved.
This Court must now perform the delicate task of ‘balancing’ these competing
interests by subjecting the Aadhaar Act to the proportionality test.
H.I Harmonising conflicting rights190 In the 2003 edition of his celebrated work, Granville Austin recounts the
words of Prime Minister Morarji Desai that freedom and bread are not
incompatible, but further adds, ‘Neither could they easily be sought
together’.315 As mentioned earlier, Granville Austin had insightfully spoken
about how the strands of the Constitution of unity-integrity, democracy and
social revolution could come in conflict with one another creating challenges
for those who work with the Constitution.316 Some of the questions inherent in
315 Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Oxford University
Press (2003), at page 652
316 Ibid, at page 651259
PART Hthe Constitution according to him are “Democracy for whom? Justice for
whom? What is Justice? What are the appropriate means of employing the
Constitution’s means’ among citizens, between them and their
government?”317 It was due to the foresight of the framers of the Constitution
that they insisted that neither the strand of social revolution nor the strand of
democracy was to be pursued at the expense of the other.318
The ostensible conflict between bread and freedom has also been explored in
the works of Professor Upendra Baxi. In a seminal essay on human rights in
1984 which he calls the “the great gift of classical and contemporary human
thought to culture and civilization”319, he discusses the widening sphere of
human rights thought and action to new arenas and constituencies as “New
rights arise from the womb of the old.”320 He draws on the distinction between
basic human needs and human rights and argues that the constant struggle
between these two forces is the essence of the difference between the right to
be human approach and the human rights approach.321 It is rightly pointed out
that a discussion on human rights will always constitute an inherent aspect of
the larger debate of development. He opines that whatever meaning maybe
ascribed to the term “development”, it must ensure that people will not be
deprived of the right to remain human:
317 Ibid
318 Ibid
319Upendra Baxi, From Human Rights to the Right to be Human: Some Heresies, India International CentreQuarterly, Vol. 13, No. 3/4, Pg.185, (December 1986)
320 Ibid, at page 185
321 Ibid260
PART H“Whatever it may be made to mean, “development” must at
least mean this: people will be given the right to be and
remain human. Total and continuing destitution and
impoverishment exposes people to a loss of their humanity. In
no society that takes human rights seriously should there be
allowed a state of affairs where human beings become sub-
human—that is, when they perforce have to surrender even
those sonorously recited "inalienable" rights of man… The
expression "human rights" presupposes a level at which
biological entities are bestowed with the dignity of being
called human. The bearers of human rights must have an
implicit right to be and remain human, allowing them some
autonomy of choice in planning survival.”322Thus, the broader matrix of human rights includes within it the inalienable and
fundamental right to always ‘be and remain human’. Professor Upendra Baxi
notes that this broader debate between human rights and the ‘right to be
human’ is reflective of the bread vs freedom conflict. It is noted that
historically, freedom might have been chosen over bread due to the vast
enumeration of liberal rights it includes, despite the acute awareness that
without bread, freedom of speech and assembly, of association, of
conscience and religion, of political participation, symbolic adult suffrage may
all be meaningless.323 At the same time, Baxi points out the danger in
choosing bread at the cost of freedom, given that historically in the absence of
freedom, human beings have been subject to the most egregious indignities:
“The provision of "bread" may justify indefinite
postponement of the provision of any kind of
"freedom". In the absence of such freedom, even the
promised "bread" may not be realized by the masses;
indeed, they even lose, in the process, their power to
protest at the indignity of regime sponsored starvation.This, indeed, is a possibility which has materialized
more often than not.”324322 Ibid, at page 187
323 Ibid, at page 186
324 Ibid, at page 190261
PART HBaxi concludes that the choice between bread and freedom is a false
antithesis. The challenge is not a choice in the abstract between bread and
freedom but rather the balancing of the two:325
“But the issues are not really "bread" and/or "freedom" in the
abstract, but rather who has how much of each, for how long,
at what cost to others, and why. Some people have both
"bread" and "freedom"; others have "freedom" but little
"bread" or none at all; yet others have half a loaf (which is
better than none, surely!) with or without freedom; and still
others have a precarious mix where "bread" is assured if
certain (not all) freedoms are bartered.”326It is the foremost duty of the State to work towards achieving and maintaining
a fine balance, taking into account these myriad considerations. The State
must always be guided by the knowledge and sense of duty that in a true
democracy, the citizens cannot be made to choose between rights and needs,
as they are equally entitled to both. As the sentinel of justice and protector of
fundamental rights, it is the responsibility of this Court to act as a check and
ensure that government action or inaction does not endanger or threaten to
disturb the balance that the Constitution seeks to achieve. It is imperative to
remember that both ‘bread’ and ‘freedom’ play a vital role in the guaranteeing
to our citizens the gamut of human rights and freedoms that make human
existence meaningful.
191 While exercising judicial review, courts are often confronted with
situations involving conflicts between rights, tensions between individuals
arising from the assertion of rights and discord arising out of the assertion of
325 Ibid, at page 186
326 Ibid, at page 186262
PART Hthe same right by two or more individuals. Conflicts between rights arise when
the assertion of a fundamental human right by an individual impacts upon the
exercise of distinct freedoms by others. The freedom of one individual to
speak and to express may affect the dignity of another. A person may be
aggrieved when the free exercise of the right to speak by someone impinges
upon his or her reputation, which is integral to the right to life under Article 21.
A conflict will, in such a situation, arise between a right which is asserted
under Article 19(1)(a) by one citizen and the sense of injury of another who
claims protection of the right to dignity under Article 21. Conflicts also arise
when the exercise of rights is perceived to impact upon the collective identity
of another group of persons. Conflicts may arise when an activity or conduct
of an individual, in pursuit of a freedom recognised by the Constitution,
impinges upon the protection afforded to another individual under the rubric of
the same human right. Such a situation involves a conflict arising from a
freedom which is relatable to the same constitutional guarantee. Privacy is an
assertion of the right to life under Article 21. The right to a dignified existence
is also protected by the same Article. A conflict within Article 21 may involve a
situation when two freedoms are asserted as political rights. A conflict may
also envisage a situation where an assertion of a political right under the
umbrella of the right to life stands in conflict with the assertion of an economic
right which is also comprehended by the protection of life under the
Constitution.
263
PART HSuch conflicts require the court to embark on a process of judicial
interpretation. The task is to achieve a sense of balance. An ideal situation
would be one which would preserve the core of the right for both sets of
citizens whose entitlements to freedom appear to be in conflict. Realistically,
drawing balances is not a simple task. Balances involve sacrifices and the
foregoing of entitlements. In making those decisions, a certain degree of
value judgment is inevitable. The balance which the court draws may be open
to criticism in regard to its value judgment on the relative importance ascribed
to the conflicting rights in judicial decision making. In making those fine
balances, the court can pursue an objective formulation by relying upon those
values which the Constitution puts forth as part of its endeavour for a just
society. Our Constitution has in Part III recognised the importance of political
freedom. In Part IV, the Constitution has recognised our social histories of
discrimination and prejudice which have led to poverty, deprivation and the
absence of a dignified existence to major segments of society. Holding Part III
in balance with Part IV is integral to the vision of social and economic justice
which the Constitution has sought to achieve consistent with political
democracy. Difficult as this area is, a balancing of rights is inevitable, when
rights asserted by individuals are in conflict.
192 Several decisions of this Court over the last two decades have sought
to bring order to the clash between fundamental rights. In People’s Union for
264
PART HCivil Liberties (PUCL) v Union of India327, this Court was called upon to
balance the right to information of voters (requiring the disclosure of the
assets of candidates and their spouses at an election) with the right to privacy
implicit in Article 21. In drawing the balance, a bench of three Judges of this
Court gave primacy to the entitlement of citizens to be informed about the
affairs of those who would represent them in electoral democracy. As the
Court held:
“121…By calling upon the contesting candidate to disclose
the assets and liabilities of his/her spouse, the fundamental
right to information of a voter/citizen is thereby promoted.When there is a competition between the right to privacy of an
individual and the right to information of the citizens, the
former right has to be subordinated to the latter right as it
serves the larger public interest. The right to know about the
candidate who intends to become a public figure and a
representative of the people would not be effective and real if
only truncated information of the assets and liabilities is
given.”328The Court held that the provision contained in the Representation of People
Act 1951 for a disclosure of assets and liabilities only to the Speaker or to the
Chairman of the House did not adequately protect the citizen’s right to
information, resulting in a violation of the guarantee of free speech and
expression.
193 In Thalappalam Service Cooperative Bank Limited v State of
Kerala329, this Court dealt with a conflict between the right to information
327 (2003) 4 SCC 399
328 Ibid, at page 472
329 (2013) 16 SCC 82265
PART H[(protected by Article 19(1)(a)] and the right to privacy (protected by Article
21). The Court observed:
“61. The right to information and right to privacy are,
therefore, not absolute rights, both the rights, one of which
falls under Article 19(1)(a) and the other under Article 21 of
the Constitution of India, can obviously be regulated,
restricted and curtailed in the larger public interest. Absolute
or uncontrolled individual rights do not and cannot exist in any
modern State. Citizens' right to get information is statutorily
recognised by the RTI Act, but at the same time limitations
are also provided in the Act itself, which is discernible from
the Preamble and other provisions of the Act.”330The Court held that the balance between the right to information and the right
to privacy is drawn under the Right to Information Act 2005: if the information
which is sought is personal and has no relationship with a public activity or
interest, a public authority is not legally bound to provide such information. If
the information which is sought is to be made available in the larger public
interest, reasons have to be recorded because the person from whom the
information is sought has a right to privacy guaranteed by Article 21.
Thalappalam considered a conflict arising between two fundamental rights,
the right to information protected by Article 19(1)(a) and the right to privacy
which is protected by Article 21.
194 More recently, in G Sundarrajan v Union of India331, a two judge
Bench considered a challenge to the establishment of a nuclear power plant
on the ground that it would violate the right to life guaranteed by Article 21.
Noting that there was a need to draw a balance between the assertion of
330 Ibid, at page 112
331 (2013) 6 SCC 620266
PART Hseveral rights including the protection of the environment, the Court observed
that the larger public interest must prevail:
“198. We have to resolve the issue whether the establishment
of NPP would have the effect of violating the right to life
guaranteed under Article 21 to the persons who are residing
in and around Kudankulam or by establishing the NPP, it will
uphold the right to life in a larger sense. While balancing the
benefit of establishing KKNPP Units 1 to 6, with right to life and
property and the protection of environment including marine
life, we have to strike a balance, since the production of
nuclear energy is of extreme importance for the economic
growth of our country, alleviate poverty, generate
employment, etc. While setting up a project of this nature, we
have to have an overall view of larger public interest rather
than smaller violation of right to life guaranteed under Article
21 of the Constitution.”332In Subramanian Swamy v Union of India333, the learned Chief Justice,
speaking for a Bench of two judges emphasised the need for a sense of
balance when the assertion of fundamental rights by two citizens is in conflict:
“137…One fundamental right of a person may have to coexist
in harmony with the exercise of another fundamental right by
others and also with reasonable and valid exercise of power
by the State in the light of the directive principles in the
interests of social welfare as a whole. The Court's duty is to
strike a balance between competing claims of different
interests.”334Noting that the “balancing of fundamental rights is a constitutional necessity”,
the Court has attempted to harmonise reputation as an intrinsic element of the
right to life under Article 21 with criminal defamation as a restriction under
Article 19(2).
332 Ibid, at page 714
333 (2016) 7 SCC 221
334 Ibid, at page 319267
PART H195 In Asha Ranjan v Chandrakeshwar Prasad335, this Court dealt with a
case involving a conflict between the fundamental rights of two individuals
within Article 21. There was on the one hand an assertion of the right to life on
the part of an individual accused of an offence, who claimed a right to a fair
trial, and the protection of the interests of the victim which was also relatable
to the same fundamental right under Article 21. In resolving the conflict, the
Court gave expression to the need to preserve “paramount collective
interests”:
“61…circumstances may emerge that may necessitate for
balancing between intra-fundamental rights. It has been
distinctly understood that the test that has to be applied while
balancing the two fundamental rights or inter fundamental
rights, … may be different than the principle to be applied in
intra-conflict between the same fundamental right. To
elaborate, as in this case, the accused has a fundamental
right to have a fair trial under Article 21 of the Constitution.
Similarly, the victims who are directly affected and also form a
part of the constituent of the collective, have a fundamental
right for a fair trial. Thus, there can be two individuals both
having legitimacy to claim or assert the right. The factum of
legitimacy is a primary consideration. It has to be
remembered that no fundamental right is absolute and it can
have limitations in certain circumstances. Thus, permissible
limitations are imposed by the State. The said limitations are
to be within the bounds of law. However, when there is intra-conflict of the right conferred under the same article, like fair
trial in this case, the test that is required to be applied, we are
disposed to think, it would be “paramount collective interest”
or “sustenance of public confidence in the justice
dispensation system”.336196 These decisions indicate that the process of resolving conflicts arising
out of the assertion of different fundamental rights and conflicts within the
same fundamental right, necessarily involves judicial balancing. In finding a
335 (2017) 4 SCC 397
336 Ibid, at page 433268
PART Hjust balance this Court has applied norms such as the ‘paramount public
interest’. In seeking to draw the balance between political freedoms and
economic freedoms, the Court must preserve the euphony between
fundamental rights and directive principles. It is on their co-existence that the
edifice of the Constitution is founded. Neither can exist without the other.
Democracy rejects the totalitarian option of recognising economic entitlements
without political liberty. Economic rights have become justiciable because of
the constitutional guarantees founded on freedom and the rule of law. The
Constitution is founded on democratic governance and is based on the
protection of individual freedom. Freedom comprehends both fundamental
political freedoms as well as basic human rights. A just balance between the
two is integral to the fulfilment of India’s constitutional commitment to realise
human liberty in a social context which is cognizant of the histories of
discrimination and prejudice suffered by large segments of our society. Where
the question is related to the limiting the right to privacy, Puttaswamy requires
the test of proportionality. It has, therefore, to be tested whether the Aadhaar
scheme fulfils the test of proportionality.
197 The test of proportionality, which began as an unwritten set of general
principles of law, today constitutes the dominant “best practice” judicial
standard for resolving disputes that involve either a conflict between two rights
claims or between a right and a legitimate government interest. 337 It has
337JudMathews and Alec Stone Sweet, All things in Proportion? American Rights Review and the Problem of
Balancing, Emory Law Journal, Vol. 60 (2011)269
PART Hbecome a “centrepiece of jurisprudence” across the European continent as
well as in common law jurisdictions including the United Kingdom, South
Africa and Israel.338 Proportionality is the “defining doctrinal core of a
transnational rights-based constitutionalism”339. It has been raised to the rank
of a fundamental constitutional principle,340 and represents a global shift from
a culture of authority to a culture of justification.341 Servin argues that
jurisprudence on privacy has evolved from the “right to be let alone”, to now
being centered around the principle of proportionality.342
198 Subjecting the Aadhaar scheme to the test of proportionality does not
mean that the Court is second-guessing the wisdom of the legislature. State
action must be subjected to judicial scrutiny to ensure that it passes
constitutional muster. The test of proportionality stipulates that the nature and
extent of the State’s interference with the exercise of a right (in this case, the
rights to privacy, dignity, choice, and access to basic entitlements) must be
proportionate to the goal it seeks to achieve (in this case, purported plugging
of welfare leakage and better targeting).
338Alec Stone Sweet Jud Mathews, Proportionality Balancing and Global Constitutionalism, Columbia
Journal of Transnational Law, Vol. 47 (2008)
339Jud Mathews and Alec Stone Sweet, All things in Proportion? American Rights Review and the Problem ofBalancing, Emory Law Journal, Vol. 60 (2011)
340 Ibid
341Moshe Cohen-Eliya and Iddo Porat, Proportionality and the Culture of Justification, American Journal ofComparative Law Vol. 59 (2011) (cited in); Etienne Mureinik, A Bridge to Where? Introducing the Interim Bill of
Rights, South African Journal on Human Rights, Vol. 10 (1994)
342Andrew B. Serwin, Privacy 3.0 – The Principle of Proportionality, University of Michigan Journal of LawReform, Vol. 42 (2009)
270
PART HWithin the framework of constitutional interpretation, proportionality serves as
a test to determine the extent to which fundamental rights can be limited in the
face of legislative intervention which purports to further social and public
interest aims. Aharon Barak, the former Chief Justice of the Supreme Court of
Israel has described the importance of the proportionality test as thus:343
“Examination of the test of proportionality (in the narrow
sense) returns us to first principles that are the foundation of
our constitutional democracy and the human rights … Our
democracy is characterized by the fact that it imposes limits
on the ability to violate human rights; that it is based on the
recognition that surrounding the individual there is a wall
protecting his right, which cannot be breached even by
majority.”In applying the proportionality test, the Court cannot mechanically defer to the
State’s assertions. Especially given the intrusive nature of the Aadhaar
scheme, such deference to the legislature is inappropriate. The State must
discharge its burden by demonstrating that rights-infringing measures were
necessary and proportionate to the goal sought to be achieved.
H.2 Proportionality standard in Indian jurisprudence
199 In India, the principle of proportionality has a long jurisprudential history
which has been adverted to in a judgment344 of this Court:
“On account of a Chapter on Fundamental Rights in Part III of
our Constitution right from 1950, Indian Courts did not suffer
from the disability similar to the one experienced by English
Courts for declaring as unconstitutional legislation on the
principle of proportionality or reading them in a manner343 Adalah v. The Minister of Interior, HCJ 7052/03, English translation available at
344 Om Kumar v Union of India, (2001) 2 SCC 386
271
PART Hconsistent with the charter of rights. Ever since 1950, the
principle of ‘proportionality’ has indeed been applied
vigorously to legislative (and administrative action) in
India. While dealing with the validity of legislation infringing
fundamental freedoms enumerated in Article 19(1) of the
Constitution of India…this court had occasion to consider
whether the restrictions imposed by legislation were
disproportionate to the situation and were not the least
restrictive of the choices.” (Emphasis supplied)The early decisions of this Court may not have used the expression
“proportionality”. But the manner in which the court explained what would be a
permissible restraint on rights indicates the seeds or the core of the
proportionality standard. Proportionality has been the core of reasonableness
since the 1950s. Chintaman Rao v State of Madhya Pradesh345 concerned
a State legislation which empowered the government to prohibit people in
certain areas from manufacturing bidis. The object of the law was to ensure
the supply of adequate labour for agricultural purposes in areas where bidi
manufacturing was an alternative source of employment for persons likely to
be engaged in agricultural labour. The Court held that the State need not have
prohibited all labourers from engaging in bidi manufacturing throughout the
year in order to satisfy the objective. Justice Mahajan, on behalf of a
Constitution Bench held:
“6.The phrase "reasonable restriction" connotes that the
limitation imposed on a person in enjoyment of the right
should not be arbitrary or of an excessive nature, beyond
what is required in the interests of the public. The word
"reasonable" implies intelligent care and deliberation, that is,
the choice of a course which reason dictates. Legislation
which arbitrarily or excessively invades the right cannot
be said to contain the quality of reasonableness and
unless it strikes a proper balance between the freedom345 1950 SCR 759
272
PART Hguaranteed in article 19(1)(g) and the social control permitted
by clause (6) of article 19, it must be held to be wanting in
that quality.” (Emphasis supplied)200 State of Madras v V G Row346 considered whether the action of the
Tamil Nadu government in declaring an association unlawful violated Article
19(1)(c) of the Constitution. Chief Justice Patanjali Sastri, speaking for the
Constitution Bench, propounded what has come to be regarded as a classic
statement of the principle of proportionality in our law:
“15…the test of reasonableness, wherever prescribed, should
be applied to each individual statute impugned, and no
abstract standard, or general pattern of reasonableness can
be laid down as applicable to all cases. The nature of the right
alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the evil
sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all
enter into the judicial verdict...” (Emphasis supplied)The decision of the Constitution Bench in State of Bihar v Kamla Kant
Misra347 concerned a challenge to the second part of sub-section (6) of
Section 144 of the Code of Criminal Procedure on the ground that it violated
sub-clauses (b), (c) and (d) of Clause (1) of Article 19 of the Constitution.
Justice K S Hegde, speaking for the majority, observed:
“15.One of the important tests to find out whether a restriction
is reasonable is to see …whether the restriction is in
excess of the requirement or whether it is imposed in an
arbitrary manner”.348 (Emphasis supplied)346 1952 SCR 597
347 (1969) 3 SCC 337
348 Ibid, at page 345273
PART H201 In Mohammed Faruk v State of Madhya Pradesh349 a Constitution
Bench of this Court held that in determining the proportionality of a measure
restricting an individual’s right under Article 19(1)(g) of the Constitution, the
factors to be taken into consideration would include whether a less drastic
restriction would have served the purpose. As the Court held:
“10…The Court must in considering the validity of the
impugned law imposing a prohibition on the carrying on
of a business or profession, attempt an evaluation of its
direct and immediate impact upon the fundamental rights
of the citizens affected thereby and the larger public
interest sought to be ensured in the light of the object
sought to be achieved, the necessity to restrict the
citizen's freedom, [...],the possibility of achieving the
object by imposing a less drastic restraint , [...] or
that a less drastic restriction may ensure the object
intended to be achieved.”350
(Emphasis supplied)In Bishambhar Dayal Chandra Mohan v State of Uttar Pradesh351,
“reasonable restriction” was held to mean that the limitation imposed on the
enjoyment of a right should not be arbitrary or of an excessive nature, beyond
what is required in the interests of the public.
202 The decision in Om Kumar v Union of India352 concerned the quantum
of punishment imposed in departmental disciplinary proceedings. Justice M.
Jagannadha Rao, speaking for a two judge Bench, defined proportionality in
the following terms:
“28. By 'proportionality', we mean the question whether, while
regulating exercise of fundamental rights, the appropriate or349 (1969) 1 SCC 853
350 Ibid, at page 857
351 (1982) 1 SCC 39
352 (2001) 2 SCC 386274
PART Hleast restrictive choice of measures has been made by the
legislature or the administrator so as to achieve the object of
the legislation or the purpose of the administrative order, as
the case may be. Under the principle, the Court will see that
the legislature and the administrative authority 'maintain a
proper balance between the adverse effects which the
legislation or the administrative order may have on the rights,
liberties or interests of persons keeping in mind the purpose
which they were intended to serve'. The legislature and the
administrative authority are however given an area of
discretion or a range of choices but as to whether the
choice made infringes the rights excessively or not is for
the Court. That is what is meant by proportionality.”353
(Emphasis supplied)In Teri Oat Estates v U.T., Chandigarh354, this Court adopted a similar
interpretation of proportionality.
203 In Modern Dental College and Research Centre v State of Madhya
Pradesh,355 a Constitution Bench of this Court while dealing with a challenge
to the vires of the Madhya Pradesh Niji Vyavasayik Shikshan Sanstha
(Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007, held
that proportionality is the correct test to apply in the context of Article 19(6).
Justice A K Sikri, speaking for the Court, held thus :
“60…Thus, while examining as to whether the impugned
provisions of the statute and Rules amount to reasonable
restrictions and are brought out in the interest of the general
public, the exercise that is required to be undertaken is the
balancing of fundamental right to carry on occupation on the
one hand and the restrictions imposed on the other hand.
This is what is known as 'Doctrine of Proportionality'.Jurisprudentially, 'proportionality' can be defined as the
set of Rules determining the necessary and sufficient
conditions for limitation of a constitutionally protected353 Ibid, at page 399
354 (2004) 2 SCC 130
355 (2016) 7 SCC 353275
PART Hright by a law to be constitutionally permissible...”356
(Emphasis supplied)While expounding on the theory of proportionality, Justice AK Sikri referred to
Aharon Barak’s seminal book357 on proportionality:
“60…A limitation of a constitutional right will be
constitutionally permissible if: (i) it is designated for a proper
purpose; (ii) the measures undertaken to effectuate such a
limitation are rationally connected to the fulfilment of that
purpose; (iii) the measures undertaken are necessary in that
there are no alternative measures that may similarly achieve
that same purpose with a lesser degree of limitation; and
finally (iv) there needs to be a proper relation ('proportionality
stricto sensu' or 'balancing') between the importance of
achieving the proper purpose and the social importance of
preventing the limitation on the constitutional right.”358Justice Sikri held that laws limiting constitutional rights must satisfy the test of
proportionality:
“63…The law imposing restrictions will be treated as
proportional if it is meant to achieve a proper purpose, and if
the measures taken to achieve such a purpose are rationally
connected to the purpose, and such measures are
necessary….35964. The exercise which, therefore, to be taken is to find out as
to whether the limitation of constitutional rights is for a
purpose that is reasonable and necessary in a
democratic society and such an exercise involves the
weighing up of competitive values, and ultimately an
assessment based on proportionality i.e. balancing of
different interests.”360 (Emphasis supplied)356 Ibid, at page 412
357 Aharon Barak, Proportionality: Constitutional Rights and their Limitations, Cambridge University Press (2012)
358 Ibid, at page 412
359 Ibid, at page 414
360 Ibid, at page 415276
PART H204 In KS Puttaswamy v Union of India361, one of us (Chandrachud J.),
speaking for four judges, laid down the tests that would need to be satisfied
under our Constitution for violations of privacy to be justified. This included the
test of proportionality:
“325…A law which encroaches upon privacy will have to
withstand the touchstone of permissible restrictions on
fundamental rights. In the context of Article 21 an invasion of
privacy must be justified on the basis of a law which stipulates
a procedure which is fair, just and reasonable. The law must
also be valid with reference to the encroachment on life and
personal liberty under Article 21. An invasion of life or
personal liberty must meet the three-fold requirement of (i)
legality, which postulates the existence of law; (ii) need,
defined in terms of a legitimate state aim; and (iii)
proportionality which ensures a rational nexus between the
objects and the means adopted to achieve them.”362The third principle (iii above) adopts the test of proportionality to ensure a
rational nexus between the objects and the means adopted to achieve them.
The essential role of the test of proportionality is to enable the court to
determine whether a legislative measure is disproportionate in its interference
with the fundamental right. In determining this, the court will have regard to
whether a less intrusive measure could have been adopted consistent with the
object of the law and whether the impact of the encroachment on a
fundamental right is disproportionate to the benefit which is likely to ensue.
The proportionality standard must be met by the procedural and substantive
aspects of the law.
361 (2017) 10 SCC 1
362 Ibid, at page 509277
PART HJustice Sanjay Kishan Kaul, in his concurring opinion, suggested a four-
pronged test as follows363:
“(i)The action must be sanctioned by law;
(ii) The proposed action must be necessary in a democratic
society for a legitimate aim;(iii) The extent of such interference must be proportionate to
the need for such interference;(iv) There must be procedural guarantees against abuse of
such interference.”The ‘test of proportionality’ is a judicially-entrenched principle which has
invigorated fundamental rights jurisprudence in the country. The application of
the proportionality standard in rights-based adjudication is well-recognised
across diverse jurisdictions.
H.3 Comparative jurisprudence205 Since some of the concerns raised by the Aadhaar scheme have arisen
for the first time in India, it would be appropriate to discuss judgments of
foreign jurisdictions which have inquired into the proportionality of measures
many of them similar to those prescribed under the Aadhaar Act.
206 The Privy Council formulated the parameters of proportionality in Elloy
de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries,
Lands and Housing,364 elaborating a three-fold test:
“whether: (i) the legislative objective is sufficiently important to
justify limiting a fundamental right; (ii) the measures designed363 Ibid, at para 638
364 [1999] 1 AC 69278
PART Hto meet the legislative objective are rationally connected to it;
and (iii) the means used to impair the right or freedom are no
more than is necessary to accomplish the objective.”Subsequently in Huang (FC) v Secretary of State for the Home
Department,365 the House of Lords added a fourth parameter which is “the
need to balance the interests of society with those of individuals and groups.”
207 In the Federal Census Act Case (Volkszählungsurteil),366 the
Federal Constitutional Court of the Federal Republic of Germany dealt with a
challenge to the German Federal Census Act, 1983, which provided for
collection of citizens’ basic personal information, including, inter alia, source of
income, occupation, supplementary employment, educational background and
hours of work. Certain provisions provided for transmission of statistical data
to local governments for the purposes of regional planning, surveying,
environmental protection, and redrawing of election districts. The Court struck
down provisions permitting transfer of statistical data to local authorities on
the ground that they enabled authorities to compare census data with local
housing registries. The Court observed that the combination of statistical data
and a personalized registry could lead to the identification of particular
persons, which would lead to a chilling effect upon individuals’ right to
informational self-determination.
365 [2007] UKHL 11
366 (1983) 65 BVerfGE 1279
PART HThe Court developed a ‘fundamental right of informational self-determination’
drawing from Articles 1(1) and 2(1) of the German Constitution, which protect
the fundamental right to human dignity and the right to freely develop one’s
personality. Explaining the importance of this right in the context of risks
occasioned by modern data processing, the Court noted that:
“The freedom of individuals to make plans or decisions in
reliance on their personal powers of self-determination may
be significantly inhibited if they cannot with sufficient certainty
determine what information on them is known in certain areas
of their social sphere and in some measure appraise the
extent of knowledge in the possession of possible
interlocutors. A social order in which individuals can no longer
ascertain who knows what about them and when and a legal
order that makes this possible would not be compatible with
the right to informational self-determination…This would not
only restrict the possibilities for personal development of
those individuals but also be detrimental to the public good
since self-determination is an elementary prerequisite for the
functioning of a free democratic society predicated on the
freedom of action and participation of its members…The
fundamental right guarantees in principle the power of
individuals to make their own decisions as regards the
disclosure and use of their personal data.”367The Court, while recognizing the right to informational self-determination,
observed that distinct silos of data “can be pieced together with other data
collections particularly when individual integrated information systems are
built up – to add up to a partial or virtually complete personality profile,” and
that too with, “the person concerned having no means of controlling its truth
and application.”368 Of crucial importance is the Court’s observation that the
right to informational self-determination is particularly endangered because
367Jürgen Bröhmer et al., “BVerfGE 65, 1 - Census Act” in 60 Years German Basic Law: The German
Constitution and its Court - Landmark Decisions of the Federal Constitutional Court of Germany in the Area of
Fundamental Rights (Suhainah Wahiduddin ed.), (2012) at Pages 147-148, available at
http://www.kas.de/wf/doc/kas_32858-1522-1-30.pdf?121123115540
368 Census Act Case, (1983)280
PART Hin reaching decisions, one no longer has to rely on manually collected
registries and files. Today, the technical means of storing individual
statements about personal or factual situations of a certain or verifiable
person with the aid of automatic data processing are practically unlimited and
can be retrieved in a matter of seconds irrespective of distances.369
The Court noted, however, that the right to informational self-determination is
not absolute and that public sector entities could collect personal data under
certain conditions. The Court held that there must be a statutory basis for this
informational activity, and that it must satisfy the principle of proportionality.
On the need for a statutory basis, the Court held that:
“The use of the data is limited to the purpose specified by law.
If for no other reason than because of the dangers associated
with automated data processing, protection is required
against unauthorized use - including protection against such
use by other governmental entities - through a prohibition on
the transfer and use of such data”370
“Clearly defined conditions must be created for processing to
ensure that individuals do not become mere data subjects in
the context of the automated collection and processing of the
information pertaining to their person. Both the absence of a
connection with a specific purpose that can be recognized
and verified at all times and the multifunctional use of data,
reinforce the tendencies that are to be checked and restricted
by data-protection legislation, which represents the concrete
manifestation of the constitutionally guaranteed right to
informational self-determination.”371On the principle of proportionality, the Court held that:
“The legislature must in its statutory regulations respect the
principle of proportionality. This principle, which enjoys
constitutional status, follows from the nature of the369Census Act Case, (1983)
370 Ibid, at page 150.371 Ibid, at page 151
281
PART Hfundamental rights themselves, which, as an expression of
the general right of the public to freedom from interference by
the state, may be restricted by the public powers in any given
case only insofar as indispensable for the protection of public
interests … In view of the threats described above that arise
from the use of automated data processing, the legislature
must more than was the case previously, adopt organizational
and procedural precautions that work counter to the threat of
violation of the right of personality …”372
“The survey program of the 1983 Census Act also satisfies, to
the extent relevant to the matter under review, the principle of
proportionality. A measure to achieve the intended purpose
must therefore be suitable and necessary; the intensity of the
attendant action may not be disproportionate to the
importance of the matter and the compromises imposed upon
the public.”373The Court concluded that according to the principles of purpose specification
and proportionality, not only must the purpose for which data is being
collected be specified at the time of collection, but the data acquired must also
not exceed that which is absolutely necessary for accomplishing the specified
purpose. In light of this, the Court directed the German Parliament to amend
the law in certain particulars before the census could be carried out, and to
close all loopholes in the law that may lead to abuses in the collection,
storage, use and transfer of personal data.
208 The ECtHR dealt with whether retention of DNA samples of individuals
who were arrested but who were later acquitted or had charges against them
dropped was a violation of the right to privacy. In S and Marper v United
372 Ibid, at page 149
373 Ibid, at page 154282
PART HKingdom,374 the ECtHR noted the “blanket and indiscriminate nature of the
power of retention”:
“The material may be retained irrespective of the nature or
gravity of the offence with which the individual was originally
suspected or of the age of the suspected offender;
fingerprints and samples may be taken—and retained—from
a person of any age, arrested in connection with a recordable
offence, which includes minor or non-imprisonable offences.The retention is not time-limited; the material is retained
indefinitely whatever the nature or seriousness of the offence
of which the person was suspected. Moreover, there exist
only limited possibilities for an acquitted individual to have the
data removed from the nationwide database or the materials
destroyed; in particular, there is no provision for independent
review of the justification for the retention according to
defined criteria, including such factors as the seriousness of
the offence, previous arrests, the strength of the suspicion
against the person and any other special circumstances.”375The Court concluded that the retention constituted a disproportionate
interference with the Applicants’ right to privacy:
“125…That the blanket and indiscriminate nature of the
powers of retention of the fingerprints, cellular samples and
DNA profiles of persons suspected but not convicted of
offences, as applied in the case of the present applicants,
fails to strike a fair balance between the competing public and
private interests and that the respondent State has
overstepped any acceptable margin of appreciation in this
regard. Accordingly, the retention at issue constitutes a
disproportionate interference with the applicants’ right to
respect for private life and cannot be regarded as
necessary in a democratic society…”
(Emphasis supplied)The Court rejected the government’s arguments that fingerprints constituted
neutral, objective, irrefutable and unintelligible material, holding that they
contained unique information about an individual, allowing their precise
374 (2008) 48 EHRR 1169
375 Ibid, at Paragraph 119283
PART Hidentification in certain circumstances. The Court concluded that the collection
of fingerprints was therefore capable of affecting private life, and retention of
such information without consent “cannot be regarded as neutral or
insignificant.”
209 In 2012, the French Constitutional Council (“Council”) – the body that
reviews the constitutionality of French laws – declared four provisions of the
Identity Protection Act, which proposed the introduction of a new national
biometric ID for citizens, to be unconstitutional.376 Articles 3 and 5 were
among the provisions that were struck down. Article 3 authorized that the
national ID card may contain data which would enable the holder to identify
himself or herself on electronic communication networks or use his or her
electronic signature. The Article stated that:
“If requested by its holder, the national identity card may also
contain data, stored separately, enabling it to identify itself on
electronic communication networks and to affix its electronic
signature. Upon each use, the interested party shall decide
which identification data are to be transmitted electronically.”The Council observed that Article 3 did not stipulate the nature of the data that
was being collected, nor did it provide any guarantee of maintaining
confidentiality. Thus, the Council declared Article 3 to be unconstitutional:
“that the provisions of Article 3 do not specify either the
nature of the “data” through which these functions may be
implemented or the guarantees ensuring the integrity and
confidentiality of this data; that they do not define in any376Decision No. 2012-652 DC of 22 March 2012 by Le Conseil Constitutionnel, available at
constitutionnel.fr/conseil-constitutionnel/english/case-law/sample-of-decisions-in-relevant-areas-
dc/decision/decision-no-2012-652-dc-of-22-march-2012.105428.html284
PART Hgreater detail the conditions under which the persons
implementing these functions are to be authenticated,
especially when they are minors or are subject to legal
protection; that accordingly, Parliament acted in excess of its
powers; that accordingly Article 3 must be ruled
unconstitutional;”Article 5 allowed for the establishment of a database of personal information
which would include, in addition to the marital status and residence of the
holder, their height, eye colour, fingerprints and photograph for the issuance
of French passports and national ID cards and for conducting investigations
involving certain offences if authorised by a public prosecutor or a judge.
The Council relied on Article 34 of the French Constitution to hold that it was
incumbent upon the Parliament to strike a balance between safeguarding
public order and bringing offenders to justice on one hand, and the right to
privacy on the other. The Council placed reliance on the Declaration of the
Rights of Man and the Citizen of 1789. Article 2 of the Declaration states “The
aim of every political association is the preservation of the natural and
imprescriptible rights of Man. These rights are liberty, property, safety and
resistance to oppression”. The Council held that the liberty proclaimed by
Article 2 includes the right to respect for private life, and accordingly, that “the
collection, registration, conservation, consultation and communication of
personal data must be justified on grounds of general interest and
implemented in an adequate manner, proportionate to this objective.” The
Council held that Article 5 violated the French Constitution as the nature of the
data collected was such that it would facilitate the identification of French
285
PART Hcitizens on the basis of their fingerprints, thus breaching the right to respect
for private life:
“Considering however that, given its object, this database
containing personal data is intended to collect data relating to
almost all of the population of French nationality; that since
the biometric data registered in this file, including in
particular fingerprints, are themselves liable to be
compared with physical traces left involuntarily by an
individual or collected unbeknown to him, they are
particularly sensitive; that the technical characteristics of
this database as defined by the contested provisions
enable it to be consulted for purposes other than the
verification of an individual's identity; that the provisions of
the act referred authorise this database to be consulted or
viewed not only in relation to the issue or renewal of identity
and travel documents or to verify the holder of such a
document, but also for other purposes of an administrative
nature or by the investigating police;…
…having regard to the nature of the data registered, the
scope of this processing, its technical characteristics and the
conditions under which it may be consulted, the provisions of
Article 5 violate the right to respect for privacy in a manner
which cannot be regarded as proportionate to the goal
pursued; that accordingly, Articles 5 and 10 of the act must be
ruled unconstitutional…” (Emphasis supplied)Subsequently, Law 2012-410 of March 27, 2012, on Identity Protection was
published in the official gazette of France, without Articles 3 and 5, which had
been rendered unconstitutional by the Council.377
210 Aycaguer v France378 concerned the applicant’s refusal to undergo
biological testing, the result of which was to be included in the national
computerised DNA database. As a result of his refusal, he was convicted. The
ECtHR held that the regulations on the storage of DNA profiles did not provide
377LOI n° 2012-410 du 27 mars 2012 relative à la protection de l'identité, available at
https://www.legifrance.gouv.fr/affichTexte.do?cidTexteJORFTEXT000025582411dateTextecategorieLien
id.378 Application no. 8806/12
286
PART Hindividuals with sufficient protection, due to its duration and the fact that the
data could not be deleted. The Court concluded that the regulations failed to
strike a balance between competing public and private interests and held,
unanimously, that there had been a violation of Article 8 (right to respect for
private life) of the European Convention on Human Rights.
211 The Conseil d'Etat379 in Association pour la promotion de l'image 380
was asked whether a decree regulating the use and storage of data from
biometric passports was lawful. One of the stipulations of the decree was that
eight fingerprints were stored by the authorities, while only two were required
for the passport. The Conseil d'Etat stated that the collection and retention of
six more fingerprints to be centrally stored was irrelevant and excessive in
relation to the purpose of the computerized database.
212 In Digital Rights Ireland Ltd v Minister,381 the Court of Justice of the
European Union held that the EU legislature had exceeded the limits of the
principle of proportionality in relation to certain provisions of the Charter of
Fundamental Rights of the European Union – Articles 7, 8 and 52(1) – by
adopting the Data Retention Directive. According to the Directive, member
states were obliged to store citizens’ telecommunications data for a minimum
of 6 months and a maximum of 24 months. The Directive empowered police
379The Conseil d’Etat (Council of State) is a body of the French government that acts as legal advisor of the
executive branch and as the supreme court for administrative justice
380 Conseil d’ Etat in France, 26 October 2011
381 C‑293/12 and C‑594/12287
PART Hand security agencies to request access to details such as IP address and
time of use of all e-mails, phone calls and text messages sent or received.
The Court applied the test of proportionality to the measures. It was noted
that metadata allows officials to make precise conclusions about a person’s
private life, and dragnet data collection creates a chilling effect based on the
sense that one’s life is subject to surveillance at all times. On the nature of
metadata, the Court observed that:
“Taken as a whole, [metadata] may allow very precise
conclusions to be drawn concerning the private lives of the
persons whose data has been retained, such as the habits of
everyday life, permanent or temporary places of residence,
daily or other movements, the activities carried out, the social
relationships of those persons and the social environments
frequented by them.”382The Court found that surveillance serves an important public interest – public
security – and that the right to security is itself a fundamental right under
Article 6 of the Charter.383 However, the Court adopted a two-pronged
proportionality test to conclude that the Directive’s retention and access
requirements were not proportional to that interest.
“…According to the settled case-law of the Court, the
principle of proportionality requires that acts of the EU
institutions be appropriate for attaining the legitimate
objectives pursued by the legislation at issue and do not
exceed the limits of what is appropriate and necessary in
order to achieve those objectives.”384382 Ibid, at para 27
383 Ibid, at para 42
384 Ibid, at para 46288
PART HThe retention measure was held to be unnecessary to fulfill the objective of
fighting against serious crime:
“As regards the necessity for the retention of data required by
Directive 2006/24, it must be held that the fight against
serious crime, in particular against organised crime and
terrorism, is indeed of the utmost importance in order to
ensure public security and its effectiveness may depend to a
great extent on the use of modern investigation techniques.However, such an objective of general interest, however
fundamental it may be, does not, in itself, justify a
retention measure such as that established by Directive
2006/24 being considered to be necessary for the
purpose of that fight. (Emphasis supplied)”385The Court criticized the Directive for failing to lay down any clear or precise
rules governing the extent of the interference with the fundamental rights
enshrined in Articles 7 and 8 of the Charter. It observed that the Directive was
overbroad because it applied to all data, regardless of the existence of
suspicion, and contained no criteria for limiting government access or
safeguards for preventing abuse:
“…Directive 2006/24 covers, in a generalised manner, all
persons and all means of electronic communication as well as
all traffic data without any differentiation, limitation or
exception being made in the light of the objective of fighting
against serious crime…
…Whilst seeking to contribute to the fight against serious
crime, Directive 2006/24 does not require any relationship
between the data whose retention is provided for and a threat
to public security and, in particular, it is not restricted to a
retention in relation (i) to data pertaining to a particular time
period and/or a particular geographical zone and/or to a circle
of particular persons likely to be involved, in one way or
another, in a serious crime, or (ii) to persons who could, for
other reasons, contribute, by the retention of their data, to the
prevention, detection or prosecution of serious offences.”386
“Not only is there a general absence of limits in Directive
2006/24 but Directive 2006/24 also fails to lay down any385 Ibid, at para 51
386 Ibid, at paras 57-59289
PART Hobjective criterion by which to determine the limits of the
access of the competent national authorities to the data and
their subsequent use for the purposes of prevention,
detection or criminal prosecutions concerning offences that, in
view of the extent and seriousness of the interference with the
fundamental rights enshrined in Articles 7 and 8 of the
Charter, may be considered to be sufficiently serious to justify
such an interference. On the contrary, Directive 2006/24
simply refers, in Article 1(1), in a general manner to serious
crime, as defined by each Member State in its national
law.”387The Court concluded that the Directive failed to set out “clear and precise
rules”388 for access or for how states should judge the period of time for which
data should be held, and “entails a wide-ranging and particularly serious
interference with those fundamental rights in the legal order of the EU, without
such an interference being precisely circumscribed by provisions to ensure
that it is actually limited to what is strictly necessary.”389 The Court struck
down the Directive on the basis of the scope of the data to be retained, 390 the
lack of limits imposed on state access,391 and the failure to distinguish
between the treatment of data based on its usefulness and relevance.392
Of crucial importance is the Court’s emphasis that the judicial review of the EU
legislature’s discretion “should be strict” because of “the important role played
by the protection of personal data in the light of the fundamental right to
respect for private life and the extent and seriousness of the interference with
387 Ibid, at para 60
388 Ibid, at para 54
389 Ibid, at para 65
390 Ibid, at paras 56 –58
391 Ibid, at paras 60-62
392 Ibid, at paras 59, 63– 64290
PART Hthat right caused by Directive 2006/24”.393 In addition, the Court emphasized
that even highly important objectives such as the fight against serious crime
and terrorism cannot justify measures which lead to forms of interference that
go beyond what is ‘strictly necessary’.394
213 In Michael Schwarz v Stadt Bochum,395 the Court of Justice of the
European Union was called upon to examine the validity of a provision in a
Council Regulation that obliged persons applying for a passport to provide
fingerprints which would be stored in that passport. In considering whether this
regulation was valid and necessary, the Court observed:
“…Article 1(2) of Regulation No 2252/2004 does not provide
for the storage of fingerprints except within the passport
itself, which belongs to the holder alone.396
The regulation not providing for any other form or
method of storing those fingerprints, it cannot in and of
itself…be interpreted as providing a legal basis for the
centralised storage of data collected thereunder or for
the use of such data for purposes other than that of
preventing illegal entry into the European Union.397
In those circumstances, the arguments put forward by the
referring court concerning the risks linked to possible
centralisation cannot, in any event, affect the validity of that
regulation and would have, should the case arise, to be
examined in the course of an action brought before the
competent courts against legislation providing for a
centralised fingerprint base. In the light of the foregoing, it
must be held that Article 1(2) of Regulation No 2252/2004
does not imply any processing of fingerprints that would go
beyond what is necessary in order to achieve the aim of
protecting against the fraudulent use of passports. It follows
that the interference arising from Article 1(2) of Regulation No
2252/2004 is justified by its aim of protecting against the
fraudulent use of passports.”398393 Ibid, at para 48
394 Ibid, at para 51
395 [2013] EUECJ C-291/12
396 Ibid, at para 60
397 Ibid, at para 61
398 Ibid, at para 62291
PART HThe Court held that although the taking and storing of fingerprints in passports
constituted an infringement of the right to respect for private life and the right
to protection of personal data, Article 1(2) of Regulation No 2252/2004 did not
imply any processing of fingerprints that would go beyond what is necessary
in order to achieve the aim of protecting against the fraudulent use of
passports and was therefore valid.
214 In Madhewoo v The State of Mauritius,399 the Judicial Committee of
the Privy Council heard an appeal from a judgment of the Supreme Court of
Mauritius regarding the constitutionality of the provisions of The National
Identity Card (Miscellaneous Provisions) Act, 2013. The Act required biometric
information including fingerprints, to be stored in a central register in which
particulars of the identity of every citizen of Mauritius were to be recorded.
The Supreme Court upheld provisions of the Act that provided for the
compulsory taking of fingerprints. However, the Court struck down those
provisions that provided for the biometric data to be stored in a central
register. The Appellant appealed to the Committee, contending that the
provisions providing for the compulsory taking of fingerprints should also be
struck down as unconstitutional.
The appellant challenged the following provisions of the Act: (i) the storage of
data in a register in electronic data under Section 3; (ii) the obligation to
399 [2016] UKPC 30292
PART Hprovide biometric information under Section 4; (iii) the collection of
information, in electronic form, for a national ID card under Section 5; (iv) the
compulsory production of an identity card to a policeman under Section 7(1A)
in response to a request under Section 7(1)(b); and (v) the gravity of the
potential penalties for non-compliance under Section 9(3), before the
Mauritian Supreme Court. The challenge was on the ground that the
implementation of the biometric identity card and the permanent storage of
biometric data contravened provisions of the Mauritian Constitution and the
Civil Code.
Regarding the challenge to Section 4 (2)(c) of the Act, which provided that,
“every person who applies for an identity card shall allow his fingerprints, and
other biometric information about himself, to be taken and recorded … for the
purpose of the identity card,” the Supreme Court noted that the right to privacy
under Section 9(1) of the Constitution was not an absolute right and
interference with that right could be permitted under Section 9(2), if a law that
interfered with that right was in the interest, inter alia, of public order. The
Committee noted the Supreme Court’s approach to determining whether
Section 4(2)(c) fell foul of the Constitution, which was based on the test laid
down in S and Marper v The United Kingdom400:
“In addressing the question whether section 4(2)(c) of the
1985 Act (as amended) was reasonably justifiable in a
democratic society the Supreme Court drew on jurisprudence
of the European Court of Human Rights in S v The United
Kingdom…In substance the Court asked whether the400 [2008] ECHR 1581
293
PART Hmeasure pursued a legitimate aim, whether the reasons given
by the national authorities for the interference in pursuit of
that aim were relevant and sufficient, and whether the
measure was proportionate to the aim pursued. This
evaluation is essentially the same as that adopted by the
courts in the United Kingdom in relation to article 8(2) of the
ECHR, in which the courts ask themselves (a) whether the
measure is in accordance with the law, (ii) whether it pursues
a legitimate aim, and (iii) whether the measure will give rise to
interferences with fundamental rights which are
disproportionate, having regard to the legitimate aim pursued.In relation to (iii), the courts ask themselves: (a) whether the
objective is sufficiently important to justify a limitation of the
protected right, (b) whether the measure is rationally
connected to the objective, (c) whether a less intrusive
measure could have been used without compromising the
achievement of the objective (in other words, whether the
limitation on the fundamental right was one which it was
reasonable for the legislature to impose), and (d) whether the
impact of the infringement of the protected rights is
disproportionate to the likely benefit of the measure”The Committee reproduced the Mauritian Supreme Court’s holding that the
provisions of the Act which enforced the compulsory taking and recording of
fingerprints interfered with the Appellant’s rights guaranteed under section
9(1) of the Constitution,401 but that the law was justifiable on grounds of public
interest and public order:
“We find that it can hardly be disputed that the taking of
fingerprints within the applicable legal framework pursues the
legitimate purpose of establishing a sound and secure identity
protection system for the nation and thus answers a pressing
social need affording indispensable protection against identity
fraud. Such a purpose, as has been amply demonstrated, is
vital for proper law enforcement in Mauritius. Furthermore,
taking into consideration the appropriate safeguards in the
taking of fingerprints for their insertion in the cards, and the
relatively limited degree of interference involved, we are led to
conclude that such interference is proportionate to the
legitimate aim pursued.”402401 Maharajah Madhewoo v. The State of Mauritius Anr., 2015 SCJ 177, at page 23
402 [2016] UKPC 30, at page 10294
PART HThus, the Mauritian Supreme Court upheld provisions of the Act which
provided for the compulsory taking of fingerprints. The Appellant also
challenged Section 3 of the Act, which provided for biometric data to be stored
in a register. The Supreme Court, after taking into consideration witness
testimonies on the purpose of data collection, noted that though there may
have been a legitimate aim for storing and collecting this data, “sufficiently
strong reasons…to establish that such storage and retention of data for an
indefinite period is proportionate to the legitimate aim pursued” were not
established.403 Thus, the Court held that:
“… it is inconceivable that there can be such uncontrolled
access to personal data in the absence of the vital safeguards
afforded by judicial control. The potential for misuse or abuse
of the exercise of the powers granted under the law would be
significantly disproportionate to the legitimate aim which the
defendants have claimed in order to justify the retention and
storage of personal data under the Data Protection Act.”404Thus, while the Supreme Court noted that the law providing for the storage
and retention of personal biometric data constituted a permissible derogation
under Section 9(2) of the Constitution,405 it held that since the Respondent had
not established that provisions dealing with storage and retention were
reasonably justifiable in a democratic society, they were unconstitutional.
403 Ibid, at page 31
404 Ibid, at page 33
405
Article 9. Protection of privacy of home and other property: (2) Nothing contained in or done under the authority
of any law shall be held to be consistent with or in contravention of this section to the extent that the law in
question makes provision - (a) in the interests of defence, public safety, public order, public morality, public
health, town and country planning, the development or utilisation of mineral resources or the development or
utilisation of any other property in such a manner as to promote the public benefit; (b) for the purpose of
protecting the rights or freedoms of other persons; (c) to enable an officer or agent of the government or a local
authority, or a body corporate established by law for public purpose, to enter on the premises of any person in
order to value those premises for the purpose of any tax, rate or due, or in order to carry out work connected
with any property that is lawfully on those premises and that belongs to the government, the local authority or
that body corporate, as the case may be; or (d) to authorise, for the purpose of enforcing the judgement or
order of a court in any civil proceedings, the search of any person or property by order of a court or the entry
upon any premises by such order, Except so far as that provision or, as the case may be, the thing done under
its authority is shown not to be reasonably justifiable in a democratic society295
PART HThe Judicial Committee did not interfere with the Supreme Court’s decision.
However, it noted an inconsistency in the Supreme Court’s order wherein it
held that the law providing for the storage and retention of fingerprints and
other biometric data constitutes a permissible derogation under section 9(2) of
the Constitution, whilst simultaneously holding the same provisions to be
unconstitutional. The Committee reconciled the holding to be:
“A law providing for the storage and retention of fingerprints
and other personal biometric data regarding the identity of a
person in principle constitutes a permissible derogation, in
the interests of public order, under section 9(2) of the
Constitution.” (Emphasis supplied)215 The learned Attorney General has relied on cases from other
jurisdictions to buttress his contention that the collection and use of biometric
information for various services have been found to be legal. ‘Biometric
data406’ is defined in the General Data Protection Regulation thus:
“personal data resulting from specific technical processing
relating to the physical, physiological or behavioural
characteristics of a natural person, which allow or confirm the
unique identification of that natural person, such as facial
images or dactyloscopic data.”The learned Attorney General cited the following judgments of the US
Supreme Court: Vernonia School District 47J v Acton (“Acton”),407 Skinner
v Railway Labor Executives’ Association (“Skinner”),408 Whalen v Roe
(“Whalen”),409 United States v Dionisio (“Dionisio”)410 and Bowen v Roy
406 Article 4(14)
407 515 U.S. 646 (1995)
408 489 U.S. 602 (1989)
409 429 U.S. 589 (1977)
410 410 U.S. 1 (1973)296
PART H(“Bowen”).411 Only Acton, Skinner and Dionisio were decided in the context
of biometrics, which as we have found before, forms the bedrock of the
Aadhaar program. In Acton, the court held that the action of the authorities
conducting random drug testing of high school athletes was legal since the
conditions of collection were nearly identical to those typically encountered in
public restrooms. As a result, it was found that, privacy interests of the
students were negligibly affected. In Skinner, the court found the actions of
the Federal Railroad Administration (“FRA”) requiring mandatory blood and
urine testing of employees involved in train accidents to be constitutional. The
court observed that railroad accidents, if not prevented, could cause massive
loss of life and property. Further, it was held that FRA’s regulations fulfilled a
“special need” because of the interest of the government in ensuring safety of
railroads and were therefore, not “an undue infringement on the justifiable
expectations of privacy of covered employees”. In Whalen, the Court found
that retention of patients’ information such as their name, address and age,
under the New York State Controlled Substances Act, 1972, was not in
violation of the constitutional right to privacy as the Court was satisfied that the
statute provided for proper safeguards and redressal against theft and loss of
information. In Dionisio, the Court found no constitutional infirmity with the
issuance of a subpoena to procure voice recording exhibits by tapping
telephones in order to investigate crimes. The Court held that “neither the
summons to appear before the grand jury, nor its directive to make a voice
recording, infringed upon any interest protected by the Fourth Amendment”.
411 476 U.S. 693 (1986)
297
PART HThe Court observed that a compelled display of identifiable physical
characteristics does not infringe upon an “interest protected by the privilege
against compulsory self-incrimination”. In Bowen, the Court upheld the
provisions of a welfare scheme which required citizens to furnish their social
security number, rejecting the argument that the use of a social security
number violated the Appellant’s Native American beliefs. The Court held that
the Free Exercise Clause of the First Amendment could not be construed to
place a requirement on the government to conduct its internal affairs in
consonance with the religious beliefs of particular citizens.
In In re Crawford,412 the Ninth Circuit upheld provisions of the Bankruptcy
Code which mandated public disclosure of a Bankruptcy Petition Preparers’
Social Security Number on documents submitted to the Court, noting that the
provision had been enacted to serve governmental interests of preventing
fraud and providing public access to judicial proceedings.
216 Some decisions of lower courts in the US which have considered the
validity of laws or actions of the State deploying biometrics and which have
been cited by the respondents are: Haskell v Harris (“Haskell”),413 Utility
Workers Union of America v Nuclear Regulatory Commission
(“UWUA”),414 Nicholas A Iacobucci v City of Newport (“Iacobucci”),415
412 194 F.3d 954 (9th Cir. 1999)
413 669 F.3d 1049 (9th Cir. 2012)
414 664 F. Supp. 136 (S.D.N.Y. 1987)
415 785 F.2d 1354 (6th Cir. 1986)298
PART HThom v New York Stock Exchange (“Thom”),416 Perkey v Department of
Motor Vehicles (“Perkey”),417 Buchanan v Wing (Buchanan),418 People v
Stuller (“Stuller”),419 United States v Kelly (“Kelly”)420 and Brown v
Brannon (“Brannon”).421 At first blush, it does seem that these cases support
the Respondents’ stand, however, we cannot lose sight of the context in which
the courts came to the conclusion emphasised by the respondents in support
of their submissions. In Haskell, the Ninth Circuit found a Californian law
which authorized law enforcement officers to collect DNA in the form of a
sample from the buccal swab of the mouth of felony arrestees, who had not
been convicted, to be constitutional. The Court noted that the arrestees had
reduced privacy interests; the physical intrusion of collecting a buccal swab
was de minimis in nature; there were stringent limits on the manner in which
the information was to be used; and the interest of the State in deterring future
criminal acts to exculpate innocent arrestees aided in prison administration
and law enforcement. For the above reasons, the Court found that the
infringement of privacy of the felony arrestees was justified. In UWUA, the
Ninth Circuit ruled that a law requiring individuals working in nuclear power
facilities to submit their fingerprints for identification and criminal history record
checks was not unconstitutional. In Iacobucci, an ordinance which required
employees of liquor selling establishments which permitted nude dancing, to
be fingerprinted and photographed by the police department, was held
416 306 F. Supp. 1002 (S.D.N.Y. 1969)
417 (1986) 42 Cal. 3d 185
418 N.Y.S.2d 865
419 10 Cal. App.3d 582 (1970)
420 55 F.2d 67 (2d Cir. 1932)
421 399 F. Supp. 133 (M.D.N.C. 1975)299
PART Hconstitutional. The Court observed that fingerprinting and photographing of
employees of retail liquor establishments bore a rational relationship to the
legitimate aim of elimination of crime. In Thom, a New York statute, which as
a condition of employment, required all the employees of member firms of
national stock exchanges to be fingerprinted, was upheld. The Court ruled that
fingerprinting was a necessary means of verifying the existence or non-
existence of a prior criminal record, in order to avert any threat posed by an
employee who was in a position to commit theft of securities. In Perkey, the
Californian Supreme Court upheld the actions of the state mandating an
individual to provide a fingerprint in order to obtain a driver’s license. The
Court held that fingerprint technology was the only reliable means of ensuring
the integrity of the records of the department of motor vehicles as other
methods such as handwriting specimens and photographs were not reliable.
Thus, the submission of fingerprints as part of the license application process,
bore a rational relationship to the State’s goal of promoting safe and lawful
use of highways. In Buchanan, the Court upheld the eligibility requirement for
a welfare aid scheme which mandated participation in an identity verification
procedure known as Automated Finger Imaging System (AFIS), rejecting the
challenge based on religious beliefs of the Petitioner. The Court held that the
Petitioner had failed to prove that the AFIS involved any invasive procedures,
noting that she had acknowledged that she had never seen finger imaging
performed and had no idea whether a laser was involved. In Stuller, the
constitutionality of a law which required “temporary and itinerant classes of
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PART Hemployees” to undergo fingerprinting in order to protect “visitors and
residents” of a resort city from crime and loss, both against people and against
property, was upheld. In Kelly, the Circuit Court of Appeals rejected a claim
for return of fingerprints of the defendant which had been obtained after he
had been arrested by prohibition agents, holding that there was no reason to
interfere with a method of identifying persons “charged with a crime”. In
Brannon, the court held that a law requiring “massagists” to submit their
fingerprints, photographs and reports of their medical examinations in order to
obtain licenses was valid, noting that the fingerprints and photographs would
aid in their identification as well as in the enforcement of criminal statutes
relating to public morality and decency.
217 The cases cited by the learned Attorney General would not be
applicable in the context of the Aadhaar program. The cases cited dealt with
narrowly tailored legislations set out to achieve very specific objectives. For
instance, courts upheld statutes aimed at protecting a nuclear facility or to
prevent theft of securities, where incidents of sabotage or breach of security
would have led to national disasters. These national disasters in turn would
have resulted in the immediate loss of human life or in a situation of financial
emergency. Such laws, were therefore, enacted in order to assuage security
concerns which, if not implemented, could lead to incidents of massive losses
of life and property.
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PART HSome of the statutes upheld, permitted collection of DNA samples, fingerprints
and photographs for identification. The objective behind these laws was
prevention of crime, albeit on a comparatively smaller scale. Moreover, the
courts in these cases were also satisfied that the procedures involved in
collecting biometrics were not invasive enough to strike them down as
unconstitutional or that there were adequate safeguards to prevent misuse.
The aforementioned cases will not apply in the backdrop of the Aadhaar
program because they were rendered broadly in the context of prevention of
crime. It needs no reiteration that an entire population cannot be presumed to
be siphoning huge sums of money in welfare schemes or viewed through the
lens of criminality, and therefore, considered as having a diminished
expectation of privacy. The judgments cited by the respondents which were
decided in the context of crime, require the State to at least form a reasonable
belief about the criminal antecedents of individuals or their potential to commit
crimes. On the contrary, by collecting identity information, the Aadhaar
program treats every citizen as a potential criminal without even requiring the
State to draw a reasonable belief that a citizen might be perpetrating a crime
or an identity fraud. When the State is not required to have a reasonable belief
and judicial determination to this effect, a program like Aadhaar, which
infringes on the justifiable expectations of privacy of citizens flowing from the
Constitution, is completely disproportionate to the objective sought to be
achieved by the State.
302
PART H218 The fundamental precepts of proportionality, as they emerge from
decided cases can be formulated thus:
1. A law interfering with fundamental rights must be in pursuance of a
legitimate state aim;
2. The justification for rights-infringing measures that interfere with or limit the
exercise of fundamental rights and liberties must be based on the
existence of a rational connection between those measures, the situation in
fact and the object sought to be achieved;
3. The measures must be necessary to achieve the object and must not
infringe rights to an extent greater than is necessary to fulfil the aim;
4. Restrictions must not only serve a legitimate purposes; they must also be
necessary to protect them; and
5. The State must provide sufficient safeguards relating to the storing and
protection of centrally stored data. In order to prevent arbitrary or abusive
interference with privacy, the State must guarantee that the collection and
use of personal information is based on the consent of the individual; that it
is authorised by law and that sufficient safeguards exist to ensure that the
data is only used for the purpose specified at the time of collection.
Ownership of the data must at all times vest in the individual whose data is
collected. The individual must have a right of access to the data collected
and the discretion to opt out.
303
PART H219 Privacy and proportionality are two interlocking themes that recur
consistently in the above judgements. Privacy, also construed as
“informational self-determination”, is a fundamental value. There is a
consistent emphasis on the impact on personal dignity if private information is
widely available and individuals are not able to decide upon its disclosure and
use. This right of controlling the extent of the availability and use of one’s
personal data is seen as a building block of data protection - especially in an
environment where the state of technology facilitates ease of collection,
analysis and dissemination of information.
220 The blanket and indiscriminate collection of information is seen as a
violation of privacy, which is a constituent of the right to liberty. An extensive
power to retain collected data is also seen as a disproportionate interference
with the right to privacy and not necessary in a democratic society. The
judgments hold that unlimited data retention and unrestricted state access
both constitute a disproportionate interference with privacy and data
protection. They also emphasize the need to clearly stipulate the nature of the
data being collected and ensure its confidentiality. Provisions where these
principles are not respected cannot be regarded as valid. While courts do
recognize the need for public order and security, they emphasize the need to
strike a balance between safeguarding public order and the right to privacy.
304
PART H221 The principle of proportionality also recurs through these judgments,
which note that the collection and use of information must be limited to the
purpose specified by law and to the extent indispensable for the protection of
public interest. The striking of a balance between public and private interests
is crucial to proportionality. The judgments hold that there must be a
protection against unauthorized use and clearly defined conditions for
processing of data collected. Those conditions must not be excessive and
must be justified on grounds of public interest and implemented in a manner
proportionate to the objective. Too broad a scope of data collected and
retained, the lack of limits imposed on access to data by authorities and a
failure to distinguish between the treatment of data based on its usefulness
and relevance are seen by Courts as constituting grounds for striking down
the measure. While the State's imperatives are seen as relevant, emphasis is
laid on retention and access requirements being proportionate to those
imperatives and the need to prevent against abuse. Courts have upheld
regulations that are necessary to achieve the legitimate aims and not
excessive in their nature or impact.
The issue is whether the Aadhaar project and the Act, Rules and Regulations
meet the test of proportionality.
305
PART HH.4 Aadhaar: the proportionality analysis
222 Under Aadhaar, the State has put forth an objective of transferring
subsidies and entitlements to its citizens. The aim was to curb leakages and
to increase transparent and efficient “targeted delivery of subsidies, benefits
and services”. However, the Act in the present form has surpassed a tailored
objective and has sought to administer every facet of the citizen-state
engagement through mandatory biometric-enabled Aadhaar linking. The
violations of fundamental rights that result from the operation of the Aadhaar
scheme will have to be evaluated on the touchstone of legitimate state
interest and proportionality.
Since biometric systems have been employed, it is fundamental to understand
that the right to privacy and its protection must be at the centre of the debate,
from the very onset of the decision to use biometric data. It is vital that
adequate safeguards are set down for every step of the process from
collection to retention of biometric data. At the time of collection, individuals
must be informed about the collection procedure, the intended purpose of the
collection, the reason why the particular data set is requested and who will
have access to their data. Additionally, the retention period must be justified
and individuals must be given the right to access, correct and delete their data
at any point in time, a procedure familiar to an opt-out option. The intended
purpose should always act as a shining light and adequate caution must be
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PART Htaken to ensure that there is no function creep with the lapse of time, in order
to prevent the use of the data for new, originally unintended purposes.
Measures to protect privacy would include enacting more entrenched and
specific legislation so that the right to privacy is not only recognized but
protected in all its aspects. Meeting this obligation would necessarily mean
enactment of data protection legislation as well. The choice of particular
techniques and the role of components in the architecture of the technology
also have a strong impact on the privacy protections provided by the biometric
system.
During the course of the hearing, the CEO of UIDAI, Mr Ajay Bhushan Pandey
was permitted on the request of the learned Attorney General to make a
power-point presentation before the Court, explaining the architecture and
working of the Aadhaar project. On the basis of the presentation, Mr Shyam
Divan, counsel for the petitioners had served a list of questions to the
respondents. Responses to these questions have been filed by UIDAI.
Analysing the power-point presentation by the CEO, questions addressed by
Mr Divan and the responses filed by the respondents will facilitate an
understanding of the architecture of the Aadhaar project.
Our analysis indicates that the correctness of the documents submitted by an
individual at the stage of enrolment or while updating information is not
verified by any official of UIDAI or of the Government. UIDAI does not take
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PART Hinstitutional responsibility for the correctness of the information entering its
database. It delegates this task to the enrolment agency or the Registrar. The
following response has been submitted by the respondents to the queries
addressed specifically on this aspect:
“As per UIDAI process, the verification of the documents is
entrusted to the Registrar. For Verification based on
Documents, the verifier present at the Enrolment Centre will
verify the documents. Registrars/Enrolment agency must
appoint personnel for the verification of documents.”223 UIDAI does not identify the persons who enrol within the Aadhaar
system. Once the biometric information is stored in the CIDR during
enrolment, it is only matched with the information received at the time of
authentication. Biometric authentication of an Aadhaar number holder is
performed as a “one to one” biometric match against the biometric information
of the Aadhaar number holder in CIDR. Based on the match, UIDAI provides
a ‘yes’ or ‘no’response. Whether the information which is entering into CIDR is
correct or not is a task entrusted to the enrolling agency or the Registrars.
UIDAI does not assume responsibility for it.
The task of verifying whether a person is an illegal resident has also been left
to the enrolling agencies. At the stage of enrolment, a verification of whether a
person has been residing in India for 182 days or more in the past twelve
months is done on the basis of a ‘self-declaration’ of the individual. The
declaration which has been provided in the Aadhaar enrolment forms is thus:
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PART H“Disclosure under section 3(2) of The Aadhaar (Targeted
Delivery of Financial and Other Subsidies, Benefits and
Servìces Act, 2016
I confirm that I have been residing in India for at least 182
days in the preceding 12 months information (including
biometrics) provided by me to the UIDAI Ìs my own and is
true, correct and accurate. I am aware that my information
including biometrics will be tested for generation of Aadhaar
and authentication. I understand that my identity information
(except core biometric) may be provided to an agency only
with my consent during authentication or as per the provisions
of the Aadhaar Act. I have a right to access my identity
information (except core biometrics) following the procedure
laid down by UIDAI.”422224 The petitioners have argued that persons who were enrolled under the
Aadhaar programme before the Act came into force on 12 September 2016
(more than a hundred crore) were not even required to make this declaration.
The authenticity of the documents submitted (along with the declaration) is not
checked by UIDAI.
The exception handling process permitting the use of alternative modes of
identification if the Aadhaar authentication fails, is also left to the discretion of
the Requesting Entity. On this aspect, the response which has been provided
to the Court is thus:
“As per Regulation 14(i) of Aadhaar (Authentication)
Regulations 2016, requesting entities shall implement
exception-handling mechanisms and back-up identity
authentication mechanisms to ensure seamless provision of
authentication services to Aadhaar number holders.Therefore, this exception handling mechanism is to be
implemented and monitored by the requesting entities and in
case of the government, their respective ministries.”309
PART HForty-nine thousand enrolment operators have been blacklisted by UIDAI. In
reply to the question of the petitioners asking the reasons for blacklisting of
the enrolment operators, UIDAI has stated that a data quality check is done
during the enrolment process and if any Aadhaar enrolment is found to be not
to be compliant with the UIDAI process, the enrolment gets rejected and an
Aadhaar number is not generated. An operator who crosses a threshold
defined in the policy, is blacklisted/ removed from the UIDAI ecosystem.
UIDAI has provided information that forty-nine thousand operators were
blacklisted/removed from the UIDAI ecosystem for the following reasons: (a)
illegally charging residents for Aadhaar enrolment; (b) poor demographic data
quality; (c) invalid biometric exceptions; and (d) other process malpractices.
Once an operator is blacklisted or suspended, further enrolments cannot be
carried out by it until the order of blacklisting/suspension is valid.
225 The Aadhaar architecture incorporates the role of Authentication User
Agencies (AUAs) and Authentication Service Agencies (ASAs). ASAs, under
the Aadhaar (Authentication) Regulations, have been defined as entities
providing necessary infrastructure for ensuring secure network connectivity
and related services for enabling a requesting entity to perform authentication
using the authentication facility provided by UIDAI.423 AUAs have been
defined under the Aadhaar (Authentication) Regulations as requesting entities
that use the Yes/No authentication facility provided by UIDAI. 424 “Yes/No
423 Regulation 2(f), Aadhaar (Authentication) Regulations
424 Regulation 2(g), Aadhaar (Authentication) Regulations310
PART Hauthentication facility” is a type of authentication facility in which the identity
information and Aadhaar number securely submitted with the consent of the
Aadhaar number holder through a requesting entity, are matched against the
data available in the CIDR, and the Authority responds with a digitally signed
response containing a “Yes” or “No”, along with other technical details related
to the authentication transaction, excluding identity information.425 The other
type of authentication facility is the e-KYC authentication facility, in which the
biometric information and/or OTP and Aadhaar number securely submitted
with the consent of the Aadhaar number holder through a requesting entity,
are matched against the data available in the CIDR, and the Authority returns
a digitally signed response containing e-KYC data along with other technical
details related to the authentication transaction. A requesting entity which, in
addition to being an AUA, uses e-KYC authentication facility provided by
UIDAI is called a “e-KYC User Agency” or “KUA”.426 Under Regulation 15(2), a
requesting agency may permit any other agency or entity to perform Yes/ No
authentication by generating and sharing a separate license key for every
such entity through the portal provided by UIDAI to the said requesting entity.
It has also been clarified that sharing of a license key is only permissible for
performing Yes/ No authentication, and is prohibited in case of e-KYC
authentication.427
425 Regulation 2(p), Aadhaar (Authentication) Regulations
426 Regulation 2(l), Aadhaar (Authentication) Regulations
427 Regulation 15, Aadhaar (Authentication) Regulations311
PART HThe petitioners have contended that the points of service (PoS) biometric
readers are capable of storing biometric information. The response which
UIDAI has provided is extracted below:
“UIDAI has mandated use of Registered Devices (RD) for all
authentication requests. With Registered Devices biometric
data is signed within the device/ RD service using the
provider key to ensure it is indeed captured live. The device
provider RD Service encrypts the PID block before returning
to the host application. This RD Service encapsulates the
biometric capture, signing and encryption of biometrics all
within it. Therefore, introduction of RD in Aadhaar
authentication system rules out any possibility of use of
stored biometric and replay of biometrics captured from other
source. Requesting entities are not legally allowed to store
biometrics captured for Aadhaar authentication under
Regulation 17(1)(a) of Aadhaar (Authentication) Regulations
2016.”226 A PID block is defined in Regulation 2(n) of Aadhaar (Authentication)
Regulations, 2016 as the Personal Identity Data element, which includes
necessary demographic and/or biometric and/or OTP collected from the
Aadhaar number holder during authentication. Regulation 17(1)(c) allows the
requesting entity to store the PID block when “it is for buffered authentication
where it may be held temporarily on the authentication device for a short
period of time, and that the same is deleted after transmission”. Thus, under
the Aadhaar project, requesting entities can hold the identity information of
individuals, even if for a temporary period.
It was further contended by the petitioners that authentication entities in the
Aadhaar architecture are capable of recording the date and time of the
authentication, the client IP, the device ID and purpose of authentication. In
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PART Hresponse, UIDAI stated that it does not ask requesting entities to maintain any
logs related to the IP address of the device, GPS coordinates of the device
and purpose of authentication. It was, however, admitted that in order to
ensure that their systems are secure and frauds are managed, AUAs like
banks and telecom providers may store additional information according to
their requirement to secure their system.
227 The process of sending authentication requests has been dealt with in
Regulation 9 of the Aadhaar (Authentication) Regulations. It provides that
after collecting the Aadhaar number or any other identifier provided by the
requesting entity which is mapped to the Aadhaar number and necessary
demographic and / or biometric information and/ or OTP from the Aadhaar
number holder, the client application immediately packages and encrypts the
input parameters into the PID block before transmission and sends it to the
server of the requesting entity using secure protocols. After validation, the
server of a requesting entity passes the authentication request to the CIDR,
through the server of the Authentication Service Agency. The Regulation
further provides that the authentication request must be digitally signed by the
requesting entity and/or by the Authentication Service Agency, pursuant to the
mutual agreement between them. Based on the mode of authentication
requested, the CIDR validates the input parameters against the data stored
and returns a digitally signed Yes or No authentication response, or a digitally
signed e-KYC authentication response with encrypted e-KYC data, as the
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PART Hcase may be, along with other technical details related to the authentication
transaction. In all modes of authentication, the Aadhaar number is mandatory
and is submitted along with the input parameters such that authentication is
always reduced to a 1:1 match. Clause (5) of Regulation 9 provides that a
requesting entity shall ensure that encryption of PID Block takes place at the
time of capture on the authentication device according to the processes and
specifications laid down by UIDAI. Regulation 18(1) provides that a requesting
entity would maintain logs of the authentication transactions processed by it,
containing the following transaction details:
(a) the Aadhaar number against which authentication is sought;
(b) specified parameters of authentication request submitted;
(c) specified parameters received as authentication response;
(d) the record of disclosure of information to the Aadhaar number holder at the
time of authentication; and
(e) record of consent of the Aadhaar number holder for authentication.
The provision excludes retention of PID information in any case. Regulations
18(2) and 18(3) allow the retention of the logs of authentication transactions
by the requesting entity for a period of two years. Upon the expiry of two years
the logs have to be archived for a period of five years or the number of years
required by the laws or regulations governing the entity, whichever is later.
Upon the expiry of this period, the logs shall be deleted except those records
which are required to be retained by a court or for any pending disputes.
Regulation 20(1) provides that an Authentication Service Agency would
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PART Hmaintain logs of the authentication transactions processed by it, containing
the following transaction details:
(a) identity of the requesting entity;
(b) parameters of authentication request submitted; and
(c) parameters received as authentication response.
The Regulation excludes retention of Aadhaar number, PID information,
device identity related data and e-KYC response data. Under Regulations
20(2) and 20(3), authentication logs shall be maintained by the ASA for a
period of two years, during which period the Authority and/or the requesting
entity may require access to such records for grievance redressal, dispute
redressal and audit in accordance with the procedure specified in the
regulations. The authentication logs shall not be used for any purpose other
than that stated. Upon the expiry of the period of two years, the authentication
logs shall be archived for a period of five years. Upon the expiry of five years
or the number of years required by the laws or regulations governing the
entity whichever is later, the authentication logs shall be deleted except those
logs which are required to be retained by a court or for pending disputes.
Section 2(d)428 of the Aadhaar Act allows storage of the record of the time of
authentication. These provisions permit the storage of logs of authentication
transactions for a specific time period.
The power-point presentation made by the CEO of UIDAI states that:
428Section 2(d) states: “authentication record” means the record of the time of authentication and identity of the
requesting entity and the response provided by the Authority315
PART H“With registered devices every biometric device will have a
unique identifier allowing traceability, analytics and fraud
management and biometric data will be signed within the
device.”The response further indicates that UIDAI gets the AUA code, ASA code,
unique device code, registered device code used for authentication, and that
UIDAI would know from which device the authentication has happened and
through which AUA/ASA. The response provided by the respondents states:
“UIDAI does not get any information related to the IP address
or the GPS location from where authentication is performed
as these parameters are not the part of authentication (v2.0)
and e-KYC (v2.1) API. UIDAI would only know from which
device the authentication has happened, through which
AUA/ASA etc. This is what the slides meant by traceability.UIDAI does not receive any information about at what location
the authentication device is deployed, its IP address and its
operator and the purpose of authentication. Further, the
UIDAI or any entity under its control is statutorily barred from
collecting, keeping or maintaining any information about the
purpose of authentication under Section 32(3) of the Aadhaar
Act.”However, Regulation 26, which deals with the storage and maintenance of
Authentication Transaction Data clearly provides that UIDAI shall store and
maintain authentication transaction data, which shall contain the following
information:
(a) authentication request data received including PID block;
(b) authentication response data sent;
(c) meta data429 related to the transaction; and
(d) any authentication server side configurations430 as necessary.
429AUA code, ASA code, unique device code, registered device code used for authentication, and that UIDAI
would know from which device the authentication has happened
430An important configuration could be IP address316
PART HThe only data, which has been excluded from retention under this provision,
like Section 32(3) of the Aadhaar Act, is the purpose of authentication.
Regulation 27 provides that the authentication transaction data shall be
retained by UIDAI for a period of six months, and will thereafter be archived
for five years, upon which, the authentication transaction data shall be deleted
except when it is required to be maintained by a court or in connection with
any pending dispute. These provisions indicate that under the Aadhaar
architecture, UIDAI stores authentication transaction data. This is in violation
of the widely recognized data minimisation principles which seek that data
collectors and processors delete personal data records when the purpose for
which it has been collected is fulfilled. The lack of specification of security
standards and the overall lack of transparency and inadequate grievance
redressal mechanism under the Aadhaar program greatly exacerbate the
overall risk associated with data retention. In the Aadhaar regime, an
Authentication User Agency (AUA) connects to the CIDR and uses Aadhaar
authentication to validate a user and enable its services. The responsibility for
the logistics of service delivery rests with the AUAs. In this federated model,
Authentication Service Agencies (ASAs) transmit authentication requests to
CIDR on behalf of one or more AUAs. However, any device that
communicates via the Internet is assigned an IP address. Using the meta-
data related to the transaction, the location of the authentication can easily be
traced using the IP address.
317
PART H228 The petitioners have also brought the attention of this Court to bear on
an expert report, with respect to security and Aadhaar, which was filed along
with an Additional Affidavit dated 09 March 2018. The report dated 4 March
2018 is titled as “Analysis of Major Concern about Aadhaar Privacy and
Security” and has been authored by Professor Manindra Agrawal. Professor
Agrawal is the N Ramarao Professor at IIT Kanpur and is a member of the
Technology and Architecture Review Board (TARB) and of the Security
Review Committee of UIDAI. Professor Agarwal’s Report deals with the notion
of differential privacy. Differential privacy makes it possible for tech entities to
collect and share aggregate information about user habits, while maintaining
the privacy of individual users. The Report states that differential privacy of a
protocol is the change in the privacy of people when the protocol is introduced
without altering any other protocol present. If the differential privacy of a
protocol is “non-negative”, the protocol does not compromise privacy in any
way. There are four existing Aadhaar databases:
(i) The ‘person database’ stores personal attributes of a person (name,
address, age, etc.) along with his/her Aadhaar number;
(ii) The reference database stores the Aadhaar number of a person along
with a unique reference number (which has no relationship with the
Aadhaar number of an individual);
(iii) The biometric database stores biometric information of a person along
with the unique reference number; and
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PART H(iv) The verification log records all ID verifications done in the past five years.
For each verification, it stores the biometric data, Aadhaar number, and
ID of the device on which verification was done.
The report analyses the situation if any of the databases gets leaked. The
report remarks:
“Finally, let us turn attention to Verification Log. Its leakage
may affect both the security and the privacy of an individual
as one can extract identities of several people (and hence
can keep changing forged identities) and also locate the
places of transactions done by an individual in the past five
years. Note that differential privacy of this becomes negative
since without access to this database it is not possible to
track locations of an individual in past five years (as opposed
to tracking current location which is possible). Therefore,
Verification Log must be kept secure.”The Report underlines the importance of ensuring the security of verification
logs in the Aadhaar database. The leakage of verification logs is capable of
damaging the security and privacy of individuals since the report notes that
from the verification log, it is possible to locate the places of transactions by
an individual in the past five years. A breach in verification log would allow a
third party to access the location of the transactions of an individual over the
past five years. The report indicates that it is possible through the Aadhaar
database to track the location of an individual. The Aadhaar database is
different from other databases such as PAN Card or driving license. The
Aadhaar database is universal and contains the biometrics of an individual.
The threshold to scrutinize the effects of this database is therefore much
higher as compared to that of other databases.
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PART H229 In Puttaswamy, Justice Kaul (in his concurring judgment) emphasized
upon the concerns regarding surveillance of individuals. The learned Judge
held:
“The growth and development of technology has created new
instruments for the possible invasion of privacy by the State,
including through surveillance, profiling and data collection
and processing. Surveillance is not new, but technology has
permitted surveillance in ways that are unimaginable… One
such technique being adopted by States is ‘profiling’. The
European Union Regulation of 2016 on data privacy defines
‘Profiling’ as any form of automated processing of personal
data consisting of the use of personal data to evaluate certain
personal aspects relating to a natural person, in particular to
analyse or predict aspects concerning that natural person's
performance at work, economic situation, health, personal
preferences, interests, reliability, behaviour, location or
movements. Such profiling can result in discrimination based
on religion, ethnicity and caste.”431Justice Kaul also dealt with the need to regulate the conduct of private entities
vis-a-vis profiling of individuals:
“The capacity of non-State actors to invade the home and
privacy has also been enhanced. Technological development
has facilitated journalism that is more intrusive than ever
before…432
…[I]n this digital age, individuals are constantly generating
valuable data which can be used by non-State actors to track
their moves, choices and preferences. Data is generated not
just by active sharing of information, but also passively…
These digital footprints and extensive data can be analyzed
computationally to reveal patterns, trends, and associations,
especially relating to human behavior and interactions and
hence, is valuable information. This is the age of ‘big data’.The advancement in technology has created not just new
forms of data, but also new methods of analysing the data
and has led to the discovery of new uses for data. The
algorithms are more effective and the computational power
has magnified exponentially.”433431 Puttaswamy at para 585
432 Puttaswamy at para 587
433 Puttaswamy at para 588320
PART H230 Section 2(c) of the Aadhaar Act is capable of revealing the identity of an
individual to UIDAI. Section 2(d) permits storage of record of the time of
authentication. Through meta data and in the light of the observations made in
the Professor Manindra Agarwal Report, it can easily be concluded that it is
possible through the UIDAI database to track the location of an individual.
Further, the verification logs reveal the details of transactions over the past
five years. The verification logs are capable of profiling an individual. Details
of the transaction include what the transaction was (whether authentication
request was accepted/rejected), where it was sent from, and how it was sent.
The only thing not stored in the transaction is its purpose.
231 The threat to privacy arises not from the positive identification that
biometrics provide, but the ability of third parties to access this in an
identifiable form and link it to other information, resulting in secondary use of
that information without the consent of the data subject. This erodes the
personal control of an individual over the uses of his or her information. The
unauthorised secondary use of biometric data is perhaps the greatest risk that
biometric technology poses to informational privacy.434 The Manindra Agarwal
Report acknowledges that the biometric database in the CIDR is accessible
by third-party vendors providing biometric search and de-duplication
algorithms. The other three databases are stored, in encrypted form, by
UIDAI.
434Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013) at page
76321
PART HIn this regard, it would be necessary to deal with the Contract (dated 24
August 2010) signed between UIDAI and L1 Identity Solutions (the foreign
entity which provided the source code for biometric storage). It has been
submitted by the petitioners that the contract gives L1 Identity Solutions free
access to all personal information about all residents in India. The contract
specifies that UIDAI (‘the purchaser’) has the right in perpetuity to use all
original newly created processes “identified” by M/S L-1 Identity Solutions
“solely during execution” of the contract to the purchaser’s unique
specifications and which do not contain any pre-existing intellectual property
right belonging to L-1 Identity Solutions.435 UIDAI was provided the license of
the software (proprietary algorithms) developed by L-1 Identity Solutions.
However, it has been clarified in the Contract that:
“The Contract and the licenses granted herein are not a sale
of a copy of the software and do not render Purchaser the
owner of M/S L-1 Identity Solutions Operating Company’s
proprietary ABIS and SDK software.”436The Contract authorises L-1 Identity Solutions to retain proprietary ownership
of all intellectual property rights in and to goods, services and other
deliverables to the purchaser under the Contract that are modifications or
derivative works to their pre-existing technologies, software, goods, services
and other works. If a modification or derivative work made by L-1 Identity
Solutions or its consortium members contains unique confidential information
of the purchaser, then, the contract provides that the former shall not further
435 Clause 13.1 of the Contract
436 Ibid322
PART Hlicense or distribute such modification or derivative to any other customer or
third party other than the purchaser without the purchaser’s prior written
permission.437 Clause 13.3 provides:
“M/S L-1 Identity Solutions Operating Company/ The team of
M/S L-1 Identity Solutions Operating Company shall ensure
that while it uses any software, hardware, processes,
document or material in the course of performing the
Services, it does not infringe the Intellectual Property Rights
of any person and M/S L-1 Identity Solutions Operating
Company shall keep the Purchaser indemnified against all
costs, expenses and liabilities howsoever, arising out any
illegal or unauthorized use (piracy) or in connections with any
claim or proceedings relating to any breach or violation of any
permission/license terms or infringement of any Intellectual
Property Rights by M/S L-1 Identity Solutions Operating
Company or the team of M/S L-1 Identity Solutions Operating
Company during the course of performance of the Services.In case of infringement by M/S L-1 Identity Solutions
Operating Company/ The team of M/S L-1 Identity Solutions
Operating Company, M/S L-1 Identity Solutions Operating
Company shall have sole control of the defense and all
related settlement negotiations.”Clause 13.4 deals with information privacy. It provides:
“M/S L-1 Identity Solutions Operating Company/ The team of
M/S L-1 Identity Solutions Operating Company shall not carry
any written/printed document, layout diagrams, floppy
diskettes, hard disk, storage tapes, other storage devices or
any other goods/material proprietary to Purchaser into/out of
Datacenter Sites and UIDAI Locations without written
permission from the Purchaser.”Clause 15, titled as “data and hardware”, provides:
“15.1 By virtue of this Contract, M/s L-1 Identity Solutions
Operating Company/The team of M/s L-1 Identity Solutions
Operating Company may have access to personal information
of the Purchaser [UIDAI] and/or a third party or any resident
of India, any other person covered within the ambit of any
legislation as may be applicable. The purchaser shall have
the sole ownership of and the right to use all such data in437 Ibid
323
PART Hperpetuity including any data or other information pertaining
to the residents of India that may be in the possession of M/s
L-1 Identity Solutions Operating Company or the Tram of M/s
L-1 Identity Solutions Operating Company in the course of
performing.15.2 The purchaser shall have the sole ownership of and the
right to use, proprietary Biometric templates of residents of
India as created and maintained by M/S L-1 Identity Solutions
Operating Company in the course of performing the Services
under this Contract. In the event of termination or expiry of
contract, M/S L-1 Identity Solutions Operating Company shall
transfer all the proprietary templates to UIDAI in an electronic
storage media in a form that is freely retrievable for reference
and usage in future.15.3 The Data shall be retained by M/S L-1 Identity Solutions
Operating Company not more than a period of 7 years as per
Retention Policy of Government of India or any other policy
that UIDAI may adopt in future.”Under the Contract, L-1 Identity Solutions retains the ownership of the
biometric software. UIDAI has been given only the license to use the software.
Neither the Central Government nor the UIDAI have the source code for the
de-duplication technology which is at the heart of the programme. The source
code belongs to a foreign corporation. UIDAI is merely a licensee. It has also
been provided that L-1 Identity Solutions can be given access to the database
of UIDAI and the personal information of any individual.
232 This Court in Puttaswamy had emphasized on the centrality of consent
in protection of data privacy:
“307…Apart from safeguarding privacy, data protection
regimes seek to protect the autonomy of the individual. This is
evident from the emphasis in the European data protection
regime on the centrality of consent. Related to the issue of
consent is the requirement of transparency which requires a
disclosure by the data recipient of information pertaining to
data transfer and use.”324
PART HPrior to the enactment of the Aadhaar Act, an individual had no right of
informed consent. Without the consent of individual citizens, UIDAI contracted
with L-1 Identity Solutions to provide any information to it for the performance
of the Contract. It has been provided in the Contract that L-1 Identity Solutions
would indemnify UIDAI against any loss caused to it. However, the leakage of
sensitive personal information of 1.2 billion citizens, cannot be remedied by a
mere contractual indemnity. The loss of data is irretrievable. In a digital
society, an individual has the right to protect herself by maintaining control
over personal information. The protection of data of 1.2 billion citizens is a
question of national security and cannot be indemnified by a Contract.
233 Mr Shyam Divan, learned senior counsel for the petitioners, has also
drawn the attention of this Court to the Memorandum of Understanding (MoU)
signed between UIDAI and various entities for carrying out the process of
enrolment. Before the enactment of the Aadhaar Act, UIDAI existed as an
executive authority, under the erstwhile Planning Commission and then under
the Union Ministry of Communications and Information Technology. Mr. Divan
has argued that the activities of the private parties engaged in the process of
enrolment had no statutory or legal backing. It was his contention that MOUs
signed between UIDAI and Registrars are not contracts within the purview of
Article 299 of the Constitution, and therefore, do not cover the acts done by
325
PART Hthe private entities engaged by the Registrars for enrolment. In Monnet Ispat
and Energy Ltd v Union of India438, this Court had held:
“290. What the appellants are seeking is in a way some kind
of a specific performance when there is no concluded
contract between the parties. An MOU is not a contract, and
not in any case within the meaning of Article 299 of the
Constitution of India.”439The MoUs entered into by UIDAI do not fall within the meaning of Article 299
of the Constitution. There is no privity of contract between UIDAI and the
Enrolling agencies.
234 This Court held in Puttaswamy that any law which infringes the right to
privacy of an individual needs to have stringent inbuilt safeguards against the
abuse of the process. The Aadhaar Act envisages UIDAI as the sole authority
for the purpose of the Act. It entrusts UIDAI with a wide canvass of functions,
both administrative and adjudicatory. It performs the functions of appointing
enrolling agencies, registrars and requesting entities. Currently, there are 212
Registrars and 755 enrolling agencies in different states of the country. 440
Monitoring the actions of so many entities is not a task easily done.
Responsibility has also been placed on UIDAI to manage and secure the
central database of identity information of individuals. UIDAI is also required
to ensure that data stored in CIDR is kept secure and confidential. It has been
placed with the responsibility for the protection of the identity information of
1.2 billion citizens. UIDAI is entrusted with discretionary powers under the
438 (2012) 11 SCC 1
439 Ibid, at page 153
440 As submitted by Mr Rakesh Dwivedi, learned senior counsel for the State of Gujarat326
PART Harchitecture of Aadhaar, including the discretion to share the personal
information of any individual with the biometric service providers (BSPs) for
the performance of contracts with them.
235 The proviso to Section 28(5) provides only for a request to UIDAI for
access to information and does not make access to information a right of the
individual. This would mean that it would be entirely upon the discretion of the
UIDAI to refuse to grant access to the information once a request has been
made. It is also not clear how a person is supposed to know that the biometric
information contained in the database has changed if he/she does not have
access to it. UIDAI is also empowered to investigate any breach under the
Act, as a result of which any offence under the Act will be cognizable only if a
complaint is filed by UIDAI. UIDAI is not an independent monitoring agency.
Under the Aadhaar architecture, UIDAI is the only authority which carries out
all the functions, be it administrative, adjudicatory, investigative, or monitoring
of the project. While the Act confers such major functions on UIDAI, it does
not place any institutional accountability upon UIDAI to protect the database
of citizens’ personal information. The Act is silent on the liability of UIDAI and
its personnel in case of non-compliance of the provisions of the Act or the
regulations made under it. Under Section 23(2)(s) of the Act, UIDAI is
required to establish a grievance redressal mechanism. Making the authority
administering a project, also responsible for providing for the framework to
327
PART Haddress grievances arising from the project, severely compromises the
independence of the grievance redressal body.441 Section 47 of the Act
violates the right to seek remedy. Under Section 47(1), a court can take
cognizance of an offence punishable under the Act only on a complaint made
by UIDAI or any officer or person authorised by it. There is no grievance
redressal mechanism if any breach or offence is committed by UIDAI itself.
The law must specify who is to be held accountable. The Act lacks a
mechanism through which any individual can seek speedy redressal for
his/her data leakage and identity theft. Compensation must be provided for
any loss of data of an individual. A stringent and independent redressal
mechanism and options for compensation must be incorporated in the law.
Section 47 is arbitrary as it fails to provide a mechanism to individuals to seek
efficacious remedies for violation of their right to privacy. Whether it is against
UIDAI or a private entity, it is critical that the individual retains the right to seek
compensation and justice. This would require a carefully designed
structure.442
236 An independent and autonomous authority is needed to monitor the
compliance of the provisions of any statute, which infringes the privacy of an
individual. A fair data protection regime requires establishment of an
independent authority to deal with the contraventions of the data protection
framework as well as to proactively supervise its compliance. The
441 The Centre for Internet Society, Salient Points in the Aadhaar Bill and Concerns, available at https://cis-
india.org/internet-governance/salient-points-in-the-aadhaar-bill-and-concerns.
442Shankkar Aiyar, Aadhaar: A Biometric History of India’s 12-Digit Revolution, Westland (2017), at pages 226-227
328
PART Hindependent monitoring authority must be required to prescribe the standards
against which compliance with the data protection norms is to be measured. It
has to independently adjudicate upon disputes in relation to the contravention
of the law. Data protection requires a strong regulatory framework to protect
the basic rights of individuals. The architecture of Aadhaar ought to have, but
has failed to embody within the law the establishment of an independent
monitoring authority (with a hierarchy of regulators), along with the broad
principles for data protection.443 The principles should include that the means
of collection of data are fair and lawful, the purpose and relevance is clearly
defined, user limitations accompanied by intelligible consent requirements are
specified and subject to safeguards against risks such as loss, unauthorised
access, modification and disclosure.444 The independent authority needs to be
answerable to Parliament. In the absence of a regulatory framework which
provides robust safeguards for data protection, the Aadhaar Act does not
pass muster against a challenge on the ground of Article 14. The law fails to
meet the norms expected of a data protection regime which safeguards the
data of 1.2 billion Indians. The absence of a regulatory framework leaves the
law vulnerable to challenge on the ground that it has failed to meet the
requirements of fair institutional governance under the rule of law.
237 The scheme of the Aadhaar Act is postulated on the norms enunciated
in Chapter VI for the protection of information and their enforcement under a
443Subhashis Banerjee, Architecture for privacy, The Indian Express (5 May 2018), available at
https://indianexpress.com/article/opinion/columns/architecture-for-privacy-data-protection-facebook-india-
united-states-5163819/
444 Shankkar Aiyar, Aadhaar: A Biometric History of India’s 12-Digit Revolution, Westland (2017), at page 226329
PART Hregime of criminal offences and penalties under Chapter VII. Providing a
regime under law for penalizing criminal wrongdoing is necessary. But,
criminal offences are not a panacea for a robust regulatory framework under
the auspices of an autonomous regulatory body. Violations in regard to the
integrity of data may be incremental. Millions of data transactions take place in
the daily lives of a community of individuals. Violations in regard to the
integrity of data are numerous. Some of them may appear to be trivial, if
looked at in isolation. However, cumulatively, these violations seriously
encroach on the dignity and autonomy of the individual. A regime of criminal
law may not in itself be adequate to deal with all these violations in terms of
their volume and complexity. It is hence necessary that the criminal law must
be supplemented by an independent regulatory framework. In its absence,
there is a grave danger that the regime of data protection, as well as the
administration of criminal justice will be rendered dysfunctional. Unfortunately,
a regulatory framework of the nature referred to above is completely absent.
UIDAI which is established and controlled by the Union Government
possesses neither the autonomy nor the regulatory authority to enforce the
mandate of the law in regard to the protection of data. The absence of a
regulatory framework renders the legislation largely ineffective in dealing with
data violations. Data protection cannot be left to an unregulated market place.
Nor can the law rest in the fond hope that organized structures within or
outside government will be self-compliant. The Aadhaar Act has manifestly
failed in its legislative design to establish and enforce an autonomous
330
PART Hregulatory mechanism. Absent such a mechanism, the state has failed to fulfil
the obligation cast upon it to protect the individual right to informational self-
determination.
238 Section 33(2), which permits disclosure of identity information and
authentication records in the interest of national security, specifies a
procedure for oversight by a committee. However, no substantive provisions
have been laid down as guiding principles for the oversight mechanism such
as the principle of data minimisation.
239 Privacy concerns relating to the Aadhaar project have been the subject
of wide ranging deliberation. Biometric data offers strong evidence of one’s
identity since it represents relatively unique biological characteristics which
distinguish one person from another. As biometric data can be usually linked
to only one individual it acts as a powerful, unique identifier that brings
together disparate pieces of personal information about an individual. As a
relatively unique identifier, biometric data not only allows individuals to be
tracked, but it also creates the potential for the collection of an individual’s
information and its incorporation into a comprehensive profile. Central
databases, data matching/linking and profiling are technical factors that
facilitate ‘function creep’ (the slippery slope according to which information
can be used for functions other than that for which it was collected). Privacy
advocates believe that any identification scheme can be carried out with a
331
PART Hhidden agenda and that the slippery slope effect can be relevant to several
factors such as motivations of governments and business, and on the
existence of safeguards. The special nature of biometric data makes function
creep more likely and even attractive. The legal measures possible to control
function creep are still limited. However, there are several ways in which
function creep can be curtailed. They include (i) limiting the amount of data
that is collected for any stated purpose; (ii) enabling regulation to limit
technological access to the system; (iii) concerted debates with all
stakeholders and public participation; (iv) dispersion of multiple enablers for a
system; and (v) enabling choices for user participation.
240 This Court held in Puttaswamy that a reasonable expectation of
privacy requires that data collection must not violate the autonomy of an
individual. The Court has held consent, transparency, and control over
information as the cornerstones over which the fundamentals of informational
privacy stand. The Court had made it clear that an individual has the right to
prevent others from using his or her image, name and other aspects of
personal life and identity for commercial purposes without consent. An
Aadhaar number is a unique attribute of an individual. It embodies unique
information associated with an individual. The manner in which it is to be used
has to be dependent on the consent of the individual.
332
PART H241 Section 57 of the Aadhaar Act allows the use of an Aadhaar number for
establishing the identity of an individual “for any purpose” by the state, private
entities and persons. Allowing private entities to use Aadhaar numbers will
lead to commercial exploitation of an individual’s personal data without his/her
consent and could lead to individual profiling. The contention is that Section
57 fails to meet the requirements set out in the Puttaswamy judgment.
In this regard, reference must be drawn to a 2010 policy paper. A group of
officers was created by the Government of India to develop a framework for a
privacy legislation that would balance the need for privacy protection with
security and sectoral interests, and respond to the need for domain legislation
on the subject. An approach paper for the legal framework for a proposed
legislation on privacy was prepared by the group and was uploaded on the
website of the Government of India. The paper noted the repercussions of
having a project based on a database of unique individual IDs:
“Data privacy and the need to protect personal information is
almost never a concern when data is stored in a
decentralized manner. However, all this is likely to change
with the implementation of the UID Project. One of the
inevitable consequences of the UID Project will be that the
UID Number will unify multiple databases. As more and more
agencies of the government sign on to the UID Project, the
UID Number will become the common thread that links all
those databases together. Over time, private enterprise could
also adopt the UID Number as an identifier for the purposes
of the delivery of their services or even for enrolment as a
customer...Once this happens, the separation of data that
currently exists between multiple databases will vanish…Such a vast interlinked public information database is
unprecedented in India. It is imperative that appropriate steps
be taken to protect personal data before the vast government333
PART Hstorehouses of private data are linked up and the threat of
data security breach becomes real.”445The Paper highlighted the potential of exploitation that the UID project
possessed. The potential was that the UID data could be used directly or
indirectly by market forces for commercial exploitation as well as for intrusions
by the State into citizens’ privacy. The Paper contained an incisive
observation in regard to the exploitation of citizens’ data by private entities:
“Similarly, the private sector entities such as banks, telecom
companies, hospitals etc are collecting vast amount of private
or personal information about individuals. There is
tremendous scope for both commercial exploitation of this
information without the consent/ knowledge of the individual
consent and also for embarrassing an individual whose
personal particulars can be made public by any of these
private entities. The IT Act does provide some safeguards
against disclosure of data / information stored electronically,
but there is no legislation for protecting the privacy of
individuals for all information that may be available with
private entities
In view of the above, privacy of individual is to be protected
both with reference to the actions of Government as well as
private sector entities.”446The Paper highlighted the need for a stringent privacy protection mechanism,
which could prevent individual data from commercial exploitation as well as
individual profiling.
242 Reference must also be drawn to Chapter V of the National
Identification Authority of India Bill, 2010, which provided for the constitution of
445Government of India, Approach Paper for a Legislation on Privacy (2010), available at
446 Ibid
334
PART Han Identity Review Committee. The proposed Committee was to be entrusted
to carry out the function of ascertaining the extent and pattern of usage of
Aadhaar numbers across the country. The Committee was required to prepare
a report annually in relation to the extent and pattern of usage of the Aadhaar
numbers along with its recommendations thereon and submit it to the Central
Government. The idea behind the establishment of such a Committee was to
limit the extent to which Aadhaar numbers could be used. These provisions
have not been included in the Aadhaar Act, 2016. Instead, the Act allows the
use of Aadhaar number for any purpose by the State as well as private
entities. This is a clear case of overbreadth and an instance of manifest
arbitrariness.
243 Section 57 indicates that the legislature has travelled far beyond its
stated object of ensuring targeted delivery of social welfare benefits. Allowing
the Aadhaar platform for use by private entities overreaches the purpose of
enacting the law. It leaves bare the commercial exploitation of citizens data
even in purported exercise of contractual clauses. This will result in a violation
of privacy and profiling of citizens.
335
PART HAn article titled “Privacy and Security of Aadhaar: A Computer Science
Perspective”447 underlines the risk of profiling and identification that is
possible by the use of Aadhaar numbers. It states:
“The Aadhaar number is at the heart of the Aadhaar scheme
and is one of the biggest causes of concern. Recall that the
Aadhaar number is a single unique identifier that must
function across multiple domains. Given that the Aadhaar
number must necessarily be disclosed for obtaining services,
it becomes publicly available, not only electronically but also
often in human readable forms as well, thereby increasing the
risk that service providers and other interested parties may be
able to profile users across multiple service domains. Once
the Aadhaar number of an individual is (inevitably) known,
that individual may be identified without consent across
domains, leading to multiple breaches in privacy.”244 The risks which the use of Aadhaar “for any purpose” carries is that
when it is linked with different databases (managed by the State or by private
entities), the Aadhaar number becomes the central unifying feature that
connects the cell phone with geo-location data, one’s presence and
movement with a bank account and income tax returns, food and lifestyle
consumption with medical records. This starts a “causal link” between
information which was usually unconnected and was considered trivial. 448
Thus, linking Aadhaar with different databases carries the potential of being
profiled into a system, which could be used for commercial purposes. It also
carries the capability of influencing the behavioural patterns of individuals, by
affecting their privacy and liberty. Profiling individuals could be used to create
co-relations between human lives, which are generally unconnected. If the
447 Shweta Agrawal, Subhashis Banerjee, and Subodh Sharma, Privacy and Security of Aadhaar: A Computer
Science Perspective, Economic Political Weekly (16 September 2017), Vol. 52, available at
https://www.epw.in/journal/2017/37/special-articles/privacy-and-security-aadhaar.html
448 Nishant Shah, Digital Native: Cause an effect, The Indian Express (17 June 2018), available athttps://indianexpress.com/article/technology/social/digital-native-cause-an-effect-5219977/
336
PART Htraces of Aadhaar number are left in every facet of human life, it will lead to a
loss of privacy. The repercussions of profiling individuals were anticipated in
1966 by Alexander Solzhenitsyn in ‘Cancer Ward’449. His views are prescient
to our age:
“As every man goes through life he fills in a number of forms
for the record, each containing a number of questions. A
man’s answer to one question on one form becomes a little
thread, permanently connecting him to the local centre of
personnel records administration. There are thus hundreds of
little threads radiating from every man, millions of threads in
all. If these threads were suddenly to become visible, the
whole sky would look like a spider’s web, and if they
materialised as elastic bands, buses, trams and even people
would all lose the ability to move, and the wind would be
unable to carry torn newspapers or autumn leaves along the
streets of the city. They are not visible, they are not material,
but every man is constantly aware of their existence… Each
man, permanently aware of his own invisible threads,
naturally develops a respect for the people who manipulate
the threads…”The invisible threads of a society networked on biometric data have grave
portents for the future. Unless the law mandates an effective data protection
framework, the quest for liberty and dignity would be as ephemeral as the
wind.
245 A novelist’s vision is threatening to become a reality in our times.
Profiling can impact individuals and their behaviour. Since data collection
records the preferences of an individual based on the entities which requested
for proof of identity, any such pattern in itself is crucial data that could be used
to predict the emergence of future choices and preferences of individuals.
449 Aleksandr Solzhenitsyn, Cancer Ward, The Bodley Head (1968)
337
PART HThese preferences could also be used to influence the decision making of the
electorate in choosing candidates for electoral offices. Such a practice would
be unhealthy for the working of a democracy, where a citizen is deprived of
free choice. In the modern digital era, privacy protection does not demand that
data should not be collected, stored, or used, but that there should be
provable guarantees that the data cannot be used for any purpose other than
those that have been approved. In any of the programmes employed, it is
imperative that the state takes strong data privacy measures to prevent theft
and abuse. Moreover, it must be realized that an identification system like
Aadhaar, which is implemented nationwide, will always be more prone to
external threats. The State is always open to threat from its adversaries, and
a national level identification system can become an easy target for anyone
looking to cause serious damage as individuals’ biometric credentials are at
risk in the process. Therefore, it is vital that state action ascertain security
vulnerabilities while developing an identification system. These issues have
not been dealt with by the Aadhaar Act. There is currently limited legislative or
other regulatory guidance to specify whether private or public organisations
are prevented from sharing or selling biometric information to others. Section
57 cannot be applied to permit commercial exploitation of the data of
individuals or to affect their behavioural patterns. Section 57 does not pass
constitutional muster. It is manifestly arbitrary, suffers from overbreadth and
violates Article 14.
338
PART H246 At its core, the Aadhaar Act attempts to create a method for
identification of individuals so as to provide services, subsidies and other
benefits to them. The Preamble of the Act explains that the architecture of the
Act seeks to provide “efficient, transparent and targeted delivery of subsidies,
benefits and services” for which the expenditure is incurred from the
Consolidated Fund to resident individuals. Section 7 of the Act makes the
proof of possession of Aadhaar number or Aadhaar authentication as a
mandatory condition for receipt of a subsidy, benefit or service, which incurs
expenditure from the Consolidated Fund of India. The scope of Section 7 is
very wide. It leaves the door open for the government to route more benefits,
subsidies and services through the Consolidated Fund of India and expand
the scope of Aadhaar. Any activity of the government paid for from the
Consolidated Fund of India ranging from supply of subsidised grains and
LPG, to use of roads and civic amenities, healthcare, and even rebates to tax
payers could come under such an umbrella. The scope of Section 7 could
cover every basic aspect of the lives of citizens. The marginalized sections of
society, who largely depend upon government’s social security schemes and
other welfare programmes for survival could be denied basic living conditions
because of a mismatch in biometric algorithms. The notifications issued by
government under Section 7 of the Act, which require mandatory proof of
possession of an Aadhaar number or requiring authentication, cover 252
schemes, including schemes for children (such as benefits under the Sarva
Shiksha Abhiyan or getting meals under the Mid-day meal scheme, painting
339
PART Hand essay competitions for children, scholarships on merit), schemes relating
to rehabilitation of bonded labour and human trafficking, scholarship schemes
for SC/ST students, universal access to tuberculosis care, pensions, schemes
relating to labour and employment, skill development, personnel and training,
agriculture and farmers’ welfare, primary and higher education, social justice,
benefits for persons with disabilities, women and child development, rural
development, food distribution, healthcare, panchayati raj, chemicals
fertilizers, water resources, petroleum and natural gas, science and
technology, sanitation, textiles, urban development, minority affairs, road
transport, culture, tourism, urban housing, tribal affairs and stipends for
internship for students. The list is ever expanding and is endless. These
notifications cover a large number of facilities provided by the government to
its citizens. Every conceivable facility can be brought under the rubric of
Section 7. From delivery to deliverance, almost every aspect of the cycle of
life would be governed by the logic of Aadhaar.
247 When Aadhaar is seeded into every database, it becomes a bridge
across discreet data silos, which allows anyone with access to this information
to re-construct a profile of an individual’s life. It must be noted while Section
2(k) of the Aadhaar Act excludes storage of individual information related to
race, religion, caste, tribe, ethnicity, language, income or medical history into
CIDR, the mandatory linking of Aadhaar with various schemes allows the
same result in effect. For instance, when an individual from a particular caste
340
PART Hengaged in manual scavenging is rescued and in order to take benefit of
rehabilitation schemes, she/he has to link the Aadhaar number with the
scheme, the effect is that a profile as that of a person engaged in manual
scavenging is created in the scheme database. The stigma of being a manual
scavenger gets permanently fixed to her/his identity. What the Aadhaar Act
seeks to exclude specifically is done in effect by the mandatory linking of
Aadhaar numbers with different databases, under cover of the delivery of
benefits and services.
Moreover, the absence of proof of an Aadhaar number would render a
resident non-existent in the eyes of the State, and would deny basic facilities
to such residents. Section 7 thus makes a direct impact on the lives of
citizens. If the requirement of Aadhaar is made mandatory for every benefit or
service which the government provides, it is impossible to live in
contemporary India without Aadhaar. It suffers from the vice of being
overbroad. The scope of subsidies provided by the government (which incur
expenditure from the Consolidated Fund) is not the same as that of other
benefits and services which the government provides to its citizens.
Therefore, benefits and services cannot be measured with the same yardstick
as subsidies. The inclusion of services and benefits in Section 7 is a pre-
cursor to the kind of function creep which is inconsistent with privacy and
informational self-determination. The broad definitions of the expressions
‘services and ‘benefits’ would enable government to regulate almost every
341
PART Hfacet of its engagement with citizens under the Aadhaar platform. Section 7
suffers from clear overbreadth in its uncanalised application to services and
benefits.
248 The open-ended nature of the provisions of Section 7 is apparent from
the definition of ‘benefit’ in Section 2(f) and of ‘service’ in Section 2(w).
‘Benefit’ is defined to mean any advantage, gift, reward, relief or payment in
cash or kind provided to an individual or a group of individuals. ‘Service’ is
defined to mean any provision, facility, utility, or any other assistance provided
in any form to an individual or a group of individuals. These are broad and
unstructured terms under which the government can cover the entire gamut of
its activities involving an interface with the citizen. The provision has made no
requirement to determine whether in the first place biometric identification is
necessary in each case and whether a less intrusive modality should suffice.
Both the definitions include such other services as may be notified by the
Central government. The residuary clause is vague and ambiguous and
leaves it to the Central government at its uncharted discretion to expand on
what benefits and services would be covered by the legislation. The manner
in which these definitions have been expansively applied to cover a wide
range of activities is attributable to the vagueness implicit in Section 7.
Can the provisions of Section 7 be applied with any justification to pensions
payable on account of the past service rendered by a person to the state?
342
PART HPension, it is well settled, is not a largesse or bounty conferred by the state.
Pension, as a condition of service, attaches as a recompense for the long
years of service rendered by an individual to the state and its instrumentalities.
Pensioners grow older with passing age. Many of them suffer from the
tribulations of old age including the loss of biometrics. It is unfair and arbitrary
on the part of the state to deny pension to a person entitled to it by linking
pensionary payments to the possession of an Aadhaar number or to its
authentication. A right cannot be denied on the anvil of requiring one and only
one means of identification. The pension disbursing authority is entitled to lay
down regulations (which are generally speaking, already in place) to ensure
the disbursal of pension to the person who is rightfully entitled. This aim of the
government can be fulfilled by other less intrusive measures. The requirement
of insisting on an Aadhaar number for the payment of pensionary benefits
involves a breach of the principle of proportionality. Such a requirement would
clearly be contrary to the mandate of Article 14.
Similarly, the state as a part of its welfare obligations provides numerous
benefits to school going children, including mid-day meals or scholarships, to
children belonging to the marginalised segments of the society. Should the
disbursal of these benefits be made to depend upon a young child obtaining
an Aadhaar number or undergoing the process of authentication? The object
of the state is to ensure that the benefits which it offers are being availed of by
genuine students who are entitled to them. This legitimate aim can be fulfilled
343
PART Hby adopting less intrusive measures as opposed to the mandatory
enforcement of the Aadhaar scheme as the sole repository of identification.
The state has failed to demonstrate that a less intrusive measure other than
biometric authentication will not subserve its purposes. That the state has
been able to insist on adherence to the Aadhaar scheme without exception is
a result of the overbreadth of Section 7. Consequently, the inclusion of
benefits and services in Section 7 suffers from a patent ambiguity, vagueness
and overbreadth which renders the inclusion of services and benefits arbitrary
and violative of Article 14.
249 Various entities are involved in the Aadhaar project. Their inter-
dependencies require a greater onus to be put on them so as to match
privacy and security requirements. The architecture of Aadhaar treats
individuals as data. However, the core must be about personhood. The
architecture of Aadhaar is destroyed by a lack of transparency, accountability
and limitations. Safeguards for protection of individual rights ought to have
been explicitly guaranteed by design and default.450 The presence of
accountability and transparency within the Aadhaar architecture ought to be a
necessary requirement so as to overcome the fear of the loss of privacy and
liberty. Without these safeguards, the legislation and its architecture cannot
pass muster under proportionality.
450 Shankkar Aiyar, Aadhaar: A Biometric History of India’s 12-Digit Revolution, Westland (2017), at page 226
344
PART HIt is also important to highlight that identity is a vital facet of personality and
hence of the right to life under Article 21 of the Constitution. Identity is
essential and inalienable to human relationships and in the dealings of an
individual with the State. The notion that individuals possess only one, or at
the least, a dominant identity is not sound constitutional principle. The
Constitution has been adopted for a nation of plural cultures. It is accepting of
diversity in every walk of life. Diversity of identity is an expression of the
plurality which constitutes the essence of our social culture. Amartya Sen in
‘The Argumentative Indian’451 demonstrates the untenability of the notion
that identity is exclusive. He rejects the notion of an exclusive identity as
“preposterous”, observing that in different settings, individuals rely upon and
assert varying identities:
“Each of us invokes identities of various kinds in disparate
contexts. The same person can be of Indian origin, a Parsee,
a French citizen, a US resident, a woman, a poet, a
vegetarian, an anthropologist, a university professor, a
Christian, a bird watcher, and an avid believer in extra-terrestrial life and of the propensity of alien creatures to ride
around the cosmos in multicoloured UFOs. Each of these
collectivities, to all of which this person belongs, gives him or
her a particular identity. They can all have relevance,
depending on the context.”452Sen’s logic, drawn from how individuals express their personalities in the real
world, has a strong constitutional foundation. In the protection which it grants
to a diverse set of liberties and freedoms, the Constitution allows for the
assertion of different identities. The exercise of each freedom may generate a
distinct identity. Combinations of freedoms are compatible with composite
451 Amartya Sen, The Argumentative Indian, Penguin (2005), at page 350
452 Ibid, at page 350345
PART Hidentities. Sen also rejects the notion that individuals “discover their identities
with little room for choice”. The support for such a notion, as he observes,
comes from communitarian philosophy, according to which identity precedes
choice:
“As Professor Michael Sandel has explained this claim
(among other communitarian claims) : ‘community describes
not just what they have as fellow citizens but also what they
are, not a relationship they choose (as in a voluntary
association) but an attachment they discover, not merely an
attribute but a constituent of their identity In this view, identity
comes before reasoning and choice.”453Sen rejects the above idea on the ground that it does not reflect a universally
valid principle. Undoubtedly, some identities are ‘given’. But even here, as
Sen explains, the issue is not whether an identity can be selected by an
individual in all cases but whether the individual has a choice over the relative
weight to be ascribed to different identities:
“The point at issue is not whether any identity whatever can
be chosen (that would be an absurd claim), but whether we
have choices over alternative identities or combinations of
identities, and perhaps more importantly, whether we have
some freedom in deciding what priority to give to the various
identities that we may simultaneously have. People’s choices
may be constrained by the recognition that they are, say,
Jewish or Muslim, but there is still a decision to be made by
them regarding what importance they give to that particular
identity over others that they may also have (related, for
example, to their political beliefs, sense of nationality,
humanitarian commitments or professional attachments).”454Sen reasons that identity is a plural concept and the relevance of different
identities depends on the contexts in which they are asserted:
453 Ibid, at page 350
454 Ibid, at page 351346
PART H“Identity is thus a quintessentially plural concept, with varying
relevance of different identities in distinct contexts. And, most
importantly, we have choice over what significance to attach
to our different identities. There is no escape from reasoning
just because the notion of identity has been invoked. Choices
over identities do involve constraints and connections, but the
choices that exist and have to be made are real, not illusory.
In particular, the choice of priorities between different
identities, including what relative weights to attach to their
respective demands, cannot be only a matter of discovery.They are inescapably decisional, and demand reason-not just
recognition.”455250 The Constitution recognizes, through the rights which it protects, a
multitude of identities and the myriad forms of its expression. Our political
identities as citizens define our relationship with the nation state. The rights
which the Constitution recognizes as fundamental liberties constitute a
reflection of the identity of the self. As we speak, so we profess who we are.
An artist who paints, the writer who shares a thought, the musician who
composes, the preacher who influences our spirituality and the demagogue
who launches into human sensibilities are all participants in the assertion of
identity. In this participative process, the identities of both the performer and
the audience are continuously engaged. Identity at a constitutional level is
reflected in the entitlement of every individual, protected by its values, to lead
a way of life which defines the uniqueness of our beings. The Constitution
recognizes a multitude of identities, based on the liberties which it recognizes
as an inseparable part of our beings. To be human is to have a multitude of
identities and be guaranteed the right to express it in various forms. The state
455 Ibid, at page 352
347
PART Hwhich must abide by a written Constitution cannot require any person to
forsake one or more identities. Constitutional freedoms compel the state to
respect them.
251 Technologies that affect how our identities function must be subject to
constitutional norms. The existence of individual identity is the core of a
constitutional democracy. Addressing the Constituent Assembly on 4th
November 1948, Dr B.R. Ambedkar had emphasised on the importance of
individual identity in our constitutional framework:
“I am glad that the Draft Constitution has… adopted the
individual as its unit.”456Having an individual identity is an important part of the human condition. The
negation of identity is the loss of personhood, which in turn affects the
freedom of choice and free will. Personhood constructs democracy. It
represents the quality of democracy. Our decided cases have recognized the
intimate relationship between human liberty and identity. The traveller in
Maneka Gandhi v Union of India457, the employee complaining of sexual
harassment in Vishaka v State of Rajasthan458, the guardian of the minor in
Githa Hariharan (Ms) v Reserve Bank of India459, the bar employee in Anuj
Garg v Hotel Association of India460, the transgender in National Legal
456 Constituent Assembly Debates (4 November, 1948)
457 (1978) 1 SCC 248
458 (1997) 6 SCC 241
459 (1999) 2 SCC 228
460 (2008) 3 SCC 1348
PART HServices Authority v Union of India461, the tribal worker in Madhu Kishwar
v State of Bihar462 and the oppressed victim of state violence in Nandini
Sundar v State of Chattisgarh463 are all engaged in the assertion of identity.
Puttaswamy recognizes the role of the individual as “the core of constitutional
focus” and “the focal point of the Constitution”. Justice Kaul’s concurring
opinion recognised that the individual has the right to control her identity.464
It was submitted by the petitioners that a unique identity number infringes the
identity of the individual since it reduces every resident to a number.
Ascribing to the holder of an Aadhaar card, a unique identity number must not
infringe constitutional identities. The Aadhaar Act indicates, in its Statement
of Objects and Reasons, that correct identification of targeted beneficiaries is
necessary and that a failure to establish the identity of an individual is a major
hindrance in the disbursal of welfare benefits. Section 3(1) recognizes the
entitlement of every resident to obtain an Aadhaar number. Section 4(3)
provides that an Aadhaar number may be accepted as proof of identity.
Section 7(1) indicates that its purpose is for establishing the identity of an
individual for the receipt of services, benefits or subsidies drawn from the
Consolidated Fund. These provisions cannot be allowed to displace
constitutional identities. Nor can the provisions of Section 7 reduce an
individual to a nameless or faceless person.
461 (2014) 5 SCC 438
462 (1996) 5 SCC 125
463 (2011) 7 SCC 547
464 Ibid349
PART H252 Aadhaar is about identification and is an instrument which facilitates a
proof of identity. It must not obliterate constitutional identity. The definition of
demographic information in Section 2(k) excludes race, religion, caste, tribe,
ethnicity, language, records of entitlement, income or medical history.
However, as has been specifically discussed before, the linking of the
Aadhaar number to different databases is capable of profiling an individual,
which could include information regarding her/his race, religion, caste, tribe,
ethnicity, language, records of entitlement, income or medical history. Thus,
the impact of technology is such that the scheme of Aadhaar can reduce
different constitutional identities into a single identity of a 12-digit number and
infringe the right of an individual to identify herself/himself with choice.
253 Social security schemes and programmes are a medium of existence of
a large segment of society. Social security schemes in India, such as the
PDS, were introduced to protect the dignity of the marginalized. Exclusion
from these schemes defeats the rationale for the schemes which is to
overcome chronic hunger and malnutrition. Exclusion is violative of human
dignity. As discussed previously in detail, the statistics recorded in
government records and the affidavits filed by the petitioners point out glaring
examples of exclusion due to technical errors in Aadhaar. The authentication
failures in the Aadhaar scheme have caused severe disruptions particularly in
rural India. Exclusion as a consequence of biometric devices has a
disproportionate impact on the lives of the marginalized and poor. This Court
350
PART Hcannot turn a blind eye to the rights of the marginalized. It may be the fashion
of the day to advance the cause of a digital nation. Technology is undoubtedly
an enabler. It has become a universal unifier of our age. Yet, the interface
between technology and basic human rights cannot be oblivious to social
reality. Compulsive linking of biometrics to constitutional entitlements should
not result in denial to the impoverished. There exists a digital divide. To
railroad those on one side of that divide unconcerned about social and
technical constraints which operate in society is to defeat the purpose of social
welfare. The Court has to be specifically conscious of the dignity of the
underprivileged. The Court must fulfill its role of protecting constitutional
values even if it affects a small percentage of the population. The exclusion
errors in this case have led to grave injustice to the marginalized. The Court,
therefore, has to play an active role in protecting their dignity.
254 The institution of rights places a heavy onus on the State to justify its
restrictions. No right can be taken away on the whims and fancies of the
State. The State has failed to justify its actions and to demonstrate why
facilitating the targeted delivery of subsidies, which promote several rights
such as the right to food for citizens, automatically entails a sacrifice of the
right to privacy when both these rights are protected by the Constitution. One
right cannot be taken away at the behest of the other especially when the
State has been unable to satisfy this Court that the two rights are mutually
exclusive. The State has been unable to respond to the contention of the
351
PART Hpetitioners that it has failed to consider that there were much less rights-
invasive measures that could have furthered its goals. The burden of proof on
the State was to demonstrate that the right to food and other entitlements
provided through the Aadhaar scheme could not have been secured without
the violating the fundamental rights of privacy and dignity. Dworkin in his
classical book “Taking Rights Seriously”, while answering the question
whether some rights are so important that the State is justified in doing all it
can to maintain even if it abridges other rights, states that:
“But no society that purports to recognize a variety of rights,
on the ground that a man’s dignity or equality may be invaded
in a variety of ways, can accept such a principle… If rights
make sense, then the degrees of their importance cannot
be so different that some count not at all when others are
mentioned.”465 (Emphasis supplied)255 There is no antinomy between the right to privacy and the legitimate
goals of the State. An invasion of privacy has to be proportional to and
carefully tailored for achieving a legitimate aim. While the right to food is an
important right and its promotion is a constitutional obligation of the State, yet
the right to privacy cannot simply and automatically yield to it. No legitimate
goal of the State can be allowed at the cost of infringement of a fundamental
right without passing the test of constitutionality. While analysing the
architecture of Aadhaar, this Court has demonstrated how the purported
safeguards in the Aadhaar architecture are inadequate to protect the integrity
of personal data, the right of informational self-determination and above all
rights attributable to the privacy-dignity-autonomy trilogy. It is also concluded
465 Ronald Dworkin, Taking Rights Seriously (1977), at pages 203-204
352
PART Hthat the Aadhaar scheme is capable of destroying different constitutional
identities. The financial exclusion caused due to errors in Aadhaar based
authentication violate the individual’s right to dignity. The Aadhaar scheme
causes an unwarranted intrusion into fundamental freedoms guaranteed
under the Indian Constitution since the respondents have failed to
demonstrate that these measures satisfy the test of necessity and
proportionality.
H.5 Dignity and financial exclusion
256 Our jurisprudence reflects a keen awareness of the need to achieve
dignity. The nine judge Bench decision in Puttaswamy also emphasized the
seminal value of dignity in our constitutional scheme. Human dignity is a
strengthening bond in the relationship between Parts III and IV of the
Constitution. Reading the Directive Principles contained in Part IV in the
context of the right to life (in Part III of the Constitution) has significant
implications both for the substantive content of the right and on the ability of
the state in pursuit of its positive obligation to secure conditions of a dignified
existence. Dignity is an integral element of natural law and an inalienable
constitutional construct. To lead a dignified life is a constitutional assurance to
an individual. Dr Ambedkar conceptualized four basic premises on which a
political democracy can rest:
“Political Democracy rests on four premises which may be set
out in the following terms:353
PART H(i) The individual is an end in himself.
(ii) That the individual has certain inalienable rights whichmust be guaranteed to him by the Constitution.
(iii) That the individual shall not be required to
relinquish any of his constitutional rights as a
condition precedent to the receipt of a privilege.(iv) That the State shall not delegate powers to private
persons to govern others.”466 (Emphasis supplied)Interpreting the words of Dr Ambedkar in a constitutional context, any action
on the part of the State which forces an individual to part with her or his dignity
or any other right under Part III will not be permissible.
257 The experience of living with chronic hunger; recurring uncertainty
about the availability of food; debt bondage; low and highly underpaid work;
self-denial; and sacrifice of other survival needs, being discriminated
against467 are instances of the loss of dignity for the marginalized. The State
has social security programmes and legislation to improve the living conditions
of the marginalized and to protect their dignity and means of livelihood.
However, as documented in the works of Sainath, Dreze, Sen and other
authors, India has “utterly poor standards of the social services provided to
common folk, whether it is the Mid-day Meal Scheme, the Sarva Shiksha
Abhiyan, Integrated Child Development Services, Public Distribution system,
healthcare at the primary health centres, district hospitals and even public
466Dr. Babasaheb Ambedkar: Writings and Speeches (Vol. 1), Dr. Ambedkar Foundation (2014)
467Harsh Mander, Living with Hunger: Deprivation among the Aged, Single Women and People with Disability,
Economic Political Weekly (April 26, 2008), Vol. 43, available atpeople
354
PART Hhospitals in the state capitals”468. This manner of addressing the deprivations
faced by the marginalized crushes their dignity.
Any action or inaction on the part of the State which is insensitive to and
unconcerned about protecting the dignity of the marginalized is constitutionally
impermissible. Denial of benefits arising out of any social security scheme
which promotes socio-economic rights of the marginalized, would not be
legitimate under the Constitution, for the reason that such denial violates
human dignity. No individual can be made to part with his or her dignity.
Responsibility for protection of dignity lies not only with governments but also
with individuals, groups and entities.
It is in the above background that this Court must deal with the next contention
of the petitioners. The submission of the petitioners is that identity recognition
technology may be based on a system which is deterministic or probabilistic.
Biometric authentication systems work on a probabilistic model. For the
purposes of authentication, a comparison is through a template which reduces
the finger print to a scale and then, a minutea. The claim of the petitioners is
that as a result, identities are reduced from certainty to a chance.
468Dignity, Not Mere Roti, Economic Political Weekly (10 August, 2013), Vol. 48, available at
https://www.epw.in/journal/2013/32/editorials/dignity-not-mere-roti.html355
PART H258 Section 7 of the Aadhaar Act makes it mandatory for an individual to
undergo authentication or furnish proof of possession of an Aadhaar number
in order to avail a subsidy, benefit or service, which incurs expenditure from
the Consolidated Fund of India. In the Aadhaar based Biometric
Authentication, the Aadhaar number and biometric information submitted by
an Aadhaar number holder are matched with the biometric information stored
in the CIDR. This may be fingerprints-based or iris-based authentication or
other biometric modalities based on biometric information stored in the
CIDR.469
It has been submitted that failure of the authentication process results in
denial of a subsidy, benefit or service contemplated under Section 7 of the
Act. It has been contended that non-enrolment in the Aadhaar scheme and
non-linking of the Aadhaar number with the benefit, subsidy or service causes
exclusion of eligible beneficiaries. It is the submission of the petitioners that
authentication of biometrics is faulty, as biometrics are probabilistic in nature.
It is the case of the petitioners that Aadhaar based biometric authentication
often results in errors and thus leads to exclusion of individuals from
subsidies, benefits and services provided under Section 7. Across the country,
it has been urged, several persons are losing out on welfare entitlements
because of a biometric mis-match. Mr Divan has argued in his written
submissions, that “the project is not an ‘identity’ project but ‘identification’
469 UIDAI, Aadhaar Authentication, available at
356
PART Hexercise and unless the biometrics work, a person in flesh and blood, does not
exist for the state”.
In order to deal with this contention, it is necessary to understand whether
biometrics authentication can result in errors in matching. People are identified
by three basic means: “by something they know, something they have, or
something they are”.470 Biometrics fall within the last category, and, as such,
should presumably be less susceptible to being copied or forged. However,
various factors can reduce the probability of accurate human identification,
and this increases the probability of a mismatch. Human fallibility can produce
errors.471
259 In the United States of America, the National Academy of Science
published a report in 2010 on biometrics titled “Biometric Recognition:
Challenges Opportunities”472. The report was based on a study carried out
by several reputed scientists and researchers under the aegis of the National
Research Council, the National Academy of Engineering and the Institute of
Medicine. This report highlights the nature of biometrics as follows:
“Biometric recognition systems are inherently
probabilistic and their performance needs to be assessed
within the context of this fundamental and critical
characteristic. Biometric recognition involves matching, within470United States General Accounting Office, Technology Assessment: Using Biometrics for Border Security
(2002), available at http://www.gao.gov/new.items/d03174.pdf.471Jeremy Wickins, The ethics of biometrics: the risk of social exclusion from the widespread use of electronic
identification, Science Engineering Ethics (2007), at pages 45-54
472Biometric Recognition: Challenges Opportunities (Joseph N. Pato and Lynette I. Millett eds.), NationalAcademy of Science- United States of America (2010), available at https://www.nap.edu/read/12720/chapter/1
357
PART Ha tolerance of approximation, of observed biometric traits
against previously collected data for a subject. Approximate
matching is required due to the variations in biological
attributes and behaviors both within and between persons.”473
(Emphasis supplied)The report also took note of how changes in an individual’s biometrics may
occur due to a number of factors:
“Biometric characteristics and the information captured
by biometric systems can be affected by changes in age,
environment, disease, stress, occupational factors,
training and prompting, intentional alterations, socio-
cultural aspects of the situation in which the
presentations occurs, changes in human interface with
the system, and so on. As a result, each interaction of the
individual with the system (at enrolment, identification and so
on) will be associated with different biometric information.Individuals attempting to thwart recognition for one reason or
another also contribute to the inherent uncertainty in biometric
systems.”474 (Emphasis supplied)The report had also stated that biometrics can result in exclusion of people if it
is used for claiming entitlement to a benefit:
“When used in contexts where individuals are claiming
enrollment or entitlement to a benefit, biometric systems
could disenfranchise people who are unable to
participate for physical, social, or cultural reasons. For
these reasons, the use of biometrics—especially in
applications driven by public policy, where the affected
population may have little alternative to participation—merits
careful oversight and public discussion to anticipate and
minimize detrimental societal and individual effects and to
avoid violating privacy and due process rights.Social, cultural, and legal issues can affect a system’s
acceptance by users, its performance, or the decisions on
whether to use it in the first place—so it is best to consider
these explicitly in system design. Clearly, the behavior of
those being enrolled and recognized can influence the
accuracy and effectiveness of virtually any biometric system,473 Ibid, at page 3
474 Ibid358
PART Hand user behavior can be affected by the social, cultural, or
legal context. Likewise, the acceptability of a biometric
system depends on the social and cultural values of the
participant populations.”475 (Emphasis supplied)The report underlines that the relationship between an individual’s biometric
traits and data records has the potential to cause disenfranchisement, when a
section of the population is excluded from the benefits of positive claim
systems. The report thus states that:
“Policies and interfaces to handle error conditions such as
failure to enroll or be recognized should be designed to
gracefully avoid violating the dignity, privacy, or due
process rights of the participants.” (Emphasis supplied)260 Els Kindt in a comprehensive research titled “Privacy and Data
Protection Issues of Biometric Applications: A Comparative Legal
Analysis”476, deals with the nature of biometrics. The book notes that error
rates in biometric systems lead to a situation where entitled data subjects will
be falsely rejected from the process of database matching. This will adversely
affect the rights of individuals. It has been observed that:
“The error rates imply also that the system will allow
impostors. This is equally important because the security of
biometric systems should be questioned in case of high false
accept rates. This element should be given sufficient weight
in the decision to implement a biometric system for security
purposes…Other tests clearly indicated increased error rates for young
persons, in case of aging, in particular for face and for
disabled persons. Individuals with health problems may also
be falsely rejected or no longer be recognized, although they475Ibid, at pages 10-11
476 Els J. Kindt, Privacy and Data Protection Issues of Biometric Applications: A Comparative Legal Analysis,
Springer (2013)359
PART Hwere previously enrolled. In some cases, (non-)enrolment will
be a significant problem. It is clear that these data subjects
need additional protection.”477The book underlines the risk inherent in the limited accuracy of biometrics.478
261 A recently published book titled “Automating Inequality: How High-
Tech Tools Profile, Police, and Punish the Poor”479, authored by Virginia
Eubanks, deals with the impact of data mining, policy algorithms, and
predictive risk models on economic inequality and democracy in America.
Eubanks outlines the impacts of automated decision-making on public
services in the USA through three case studies relating to welfare provision,
homelessness and child protection services. Eubanks looks at these three
areas in three different parts of the United States: Indiana, Los Angeles and
Pittsburgh, to examine what technological automation has done in determining
benefits and the problems it causes. The author records that in Indiana, one
million applications for health care, food stamps, and cash benefits in three
years were denied, because a new authentication system interpreted any
application mistake as “failure to cooperate”. In Los Angeles, an algorithm
calculates the comparative vulnerability of thousands of homeless people so
as to prioritize them for an inadequate pool of housing resources. In
Pittsburgh, child services use an algorithm to predict future behaviour.
Statistics are used to predict which children might be future victims of abuse
477 Ibid, at page 363
478 Ibid
479 Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor, St.Martin's Press (2018)
360
PART Hor neglect. Eubanks shows how algorithms have taken over for human
interaction and understanding. She has argued that automated decision-
making is much wider in reach and is likely to have repercussions unknown to
non-digital mechanisms, such as nineteenth-century poorhouses in America.
Poorhouses were tax-supported residential institutions to which people were
required to go if they could not support themselves. 480 People who could not
support themselves (and their families) were put up for bid at public auction.
The person who got the contract (which was for a specific time-frame) got the
use of the labour of the poor individual(s) for free in return for feeding,
clothing, housing and providing health care for the individual and his/her
family. The practice was a form of indentured servitude and hardly had any
recourse for protection against abuse. Eubanks considers the technology
based decision-making for poverty management as the extension of the
poorhouses of the 19th century:
“America’s poor and working-class people have long been
subject to invasive surveillance, midnight raids, and punitive
public policy that increase the stigma and hardship of poverty.
During the nineteenth century, they were quarantined in
county poorhouses. During the twentieth century, they were
investigated by caseworkers, treated like criminals on trial.
Today, we have forged what I call a digital poorhouse from
databases, algorithms, and risk models. It promises to eclipse
the reach and repercussions of everything that came before.Like earlier technological innovations in poverty management,
digital tracking and automated decision-making hide poverty
from the professional middle-class public and give the nation
the ethical distance it needs to make inhuman choices: who
gets food and who starves, who has housing and who
remains homeless, and which families are broken by the
state. The digital poorhouse is a part of a long American480 Tommy L. Gardner, Spending Your Way to the Poorhouse, Authorhouse (2004), at page 221
361
PART Htradition. We manage the individual poor in order to escape
our shared responsibility for eradicating poverty.”481The author further remarks:
“While poorhouses have been physically demolished, their
legacy remains alive and well in the automated decision-making systems that encage and entrap today's poor. For all
their high-tech polish, our modern systems of poverty
management - automated decision-making, data mining, and
predictive analysis - retain a remarkable kinship with the
poorhouses of the past. Our new digital tools spring from
punitive, moralistic views of poverty and create a system of
high-tech containment and investigation. The digital
poorhouse deters the poor from accessing public
resources; polices their labor, spending, sexuality, and
parenting; tries to predict their future behavior; and
punishes and criminalizes those who do not comply with
its dictates. In the process, it creates ever-finer moral
distinctions between the 'deserving' and 'undeserving'
poor, categorizations that rationalize our national failure
to care for one another.”482 (Emphasis supplied)Eubanks builds the argument that automated decision-making technology
does not act as a facilitator for welfare schemes for the poor and only acts as
a gatekeeper:
“New high-tech tools allow for more precise measuring and
tracking, better sharing of information, and increased visibility
of targeted populations. In a system dedicated to supporting
poor and working-class people's self-determination, such
diligence would guarantee that they attain all the benefits they
are entitled to by law. In that context, integrated data and
modernized administration would not necessarily result in bad
outcomes for poor communities. But automated decision-making in our current welfare system acts a lot like older,
atavistic forms of punishment and containment. It filters and
diverts. It is a gatekeeper, not a facilitator.”483481 Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor, St.
Martin's Press (2018), at pages 12-13
482 Ibid, at page 16
483 Ibid, at pages 81-82362
PART HThe crux of the book is reflected in the following extract:
“We all live in the digital poorhouse. We have always lived in
the world we built for the poor. We create a society that has
no use for the disabled or the elderly, and then are cast aside
when we are hurt or grow old. We measure human worth
based only on the ability to earn a wage, and suffer in a world
that undervalues care and community. We base our economy
on exploiting the labor of racial and ethnic minorities, and
watch lasting inequities snuff out human potential. We see the
world as inevitably riven by bloody competition and are left
unable to recognize the many ways we cooperate and lift
each other up.But only the poor lived in the common dorms of the
county poorhouse. Only the poor were put under the
diagnostic microscope of scientific clarity. Today, we all
live among the digital traps we have laid for the
destitute.”484 (Emphasis supplied)Automating Inequality demonstrates the problems with authentication and
algorithmic technology and indicates that the system, which was intended to
provide assistance for the short term and help people out of poverty, has
become a system to perpetuate poverty and injustice.
262 Errors in biometrics matching imply that an individual will not be
considered a part of the biometrics database. If a benefit or service is subject
to the matching of biometrics, then any mismatch would result in a denial of
that benefit or service. Exclusion based on technological errors, with no fault
of the individual, is a violation of dignity. The fate of individuals cannot be left
to the vulnerabilities of technological algorithms or devices. ‘To live is to live
484 Ibid, at page 188
363
PART Hwith dignity’.485 Arbitrary exclusion from entitled benefits or subsidies is a
violation of dignity. If any such project has to survive, then it has to be ensured
that individual dignity is protected. These concerns have to be addressed.
As mentioned earlier, concerns regarding the application of biometrics in the
Aadhaar project were discussed in 2009 by the Biometrics Standards
Committee of UIDAI486, which was of the view that the large magnitude of the
Aadhaar project raised uncertainty about the accuracy of biometrics. 487 The
Strategy Overview488 published by UIDAI, in 2010, had discussed the risks
associated with biometrics perceived by UIDAI itself. Under the heading of
‘Project Risk’, the overview stated the UID project does face certain risks in its
implementation, which have to be addressed through its architecture and in
the design of its incentives. It stated:
“1) Adoption Risks: There will have to be sufficient, early
demand from residents for the UID number. Without critical
mass among key demographic groups (the rural and the
poor) the number will not be successful in the long term. To
ensure this, the UIDAI will have to model de-duplication
and authentication to be both effective and viable for
participating agencies and service providers…3) Enrolment Risks: The project will have to be carefully
designed to address risks of low enrolment – such as creating
sufficient touch points in rural areas, enabling and motivating
Registrars, ensuring that documentary requirements don't
derail enrolment in disadvantaged communities – as well as
managing difficulties in address verification, name standards,
lack of information on date of birth, and hard to record
fingerprints.485 Puttaswamy, at para 119
486 UIDAI Committee on Biometrics, Biometrics Design Standards For UID Applications, at page 4
487 Ibid
488 UIDAI, UIDAI Strategy Overview, (2010), available at364
PART H4) Risks of Scale: The project will have to handle records
that approach one billion in number. This creates
significant risks in biometric de-duplication as well as in
administration, storage, and continued expansion of
infrastructure.5) Technology risks: Technology is a key part of the UID
program, and this is the first time in the world that storage,
authentication and de-duplication of biometrics are being
attempted on this scale. The authority will have to address
the risks carefully – by choosing the right technology in
the architecture, biometrics, and data management tools;
managing obsolescence and data quality; designing the
transaction services model and innovating towards the
best possible result.6) Privacy and security risks: The UIDAI will have to ensure
that resident data is not shared or compromised.”489
(Emphasis supplied)Technological error would result in authentication failures. The concerns
raised by UIDAI ought to have been resolved before the implementation of the
Aadhaar project. Poor connectivity in rural India was a major concern. The
majority of the Indian population lives in rural areas. Even a small percentage
of error results in a population of crores being affected. Denial of subsidies
and benefits to them due to the infirmities of biometric technology is a threat to
good governance and social parity.
263 The issue of exclusion needs to be considered at three different levels:
(i) before the implementation of the Aadhaar Act, when biometrics were being
used since 2009; (ii) under the provisions of the Act; and (iii) at the practical
level during the implementation of the Aadhaar programme.
489 Ibid, at page 38
365
PART HBefore the enactment of the Aadhaar Act in 2016, the Standing Committee on
Finance, which examined the NIA Bill, was concerned about the impact of
Aadhaar on marginalized sections of society. Since the availing of subsidies
and benefits was to depend upon Aadhaar based authentication, any error in
the authentication would result in a denial of the benefits of social security
schemes for the marginalized. In 2011, the report of the Standing Committee
noted, thus:
“The full or near full coverage of marginalized sections for
issuing Aadhaar numbers could not be achieved mainly owing
to two reasons viz. (i) the UIDAI doesn’t have the statistical
data relating to them; and (ii) estimated failure of
biometrics is expected to be as high as 15% due to a
large chunk of population being dependent on manual
labour.”490 (Emphasis supplied)The Economic Survey 2016-17 has adverted to authentication failures while
discussing the concept of Universal Basic Income (UBI). The Survey, which is
an official document of the Union government, states that UBI is premised on
the idea that a just society needs to guarantee to each individual a minimum
income which they can count on, and which provides the necessary material
foundation for a life with access to basic goods and a life of dignity.491 UBI was
to be implemented by providing cash transfers (for availing benefits of social
security schemes) to the bank accounts of beneficiaries. The implementation
of UBI was to be undertaken through what is described as the JAM trinity:
490 Forty-Second Report of the Standing Committee on Finance (2011), available at
, at page 30
491 Government of India, Economic Survey 2016-17, available athttps://www.thehinducentre.com/multimedia/archive/03193/Economic_Survey_20_3193543a.pdf, at
page 173366
PART HJan-Dhan Bank Accounts, Aadhaar data and Mobile phones. However, the
Survey noted that while Aadhaar is designed to solve the identification
problem, it cannot solve the “targeting problem” on its own. The Survey
emphasized the need to build state capacity and that “the state will still have
to enhance its capacities to provide a whole range of public goods”.492 The
Survey has recorded the statistics of authentication failures of Aadhaar in
several regions of the country:
“While Aadhaar coverage speed has been exemplary, with
over a billion Aadhaar cards being distributed, some states
report authentication failures: estimates include 49 percent
failure rates for Jharkhand, 6 percent for Gujarat, 5 percent
for Krishna District in Andhra Pradesh and 37 percent for
Rajasthan. Failure to identify genuine beneficiaries results in
exclusion errors.”493No failure rate in the provision of social welfare benefits can be regarded as
acceptable. Basic entitlements in matters such as foodgrain, can brook no
error. To deny food is to lead a family to destitution, malnutrition and even
death.
264 A recent Office Memorandum dated 19 December 2017 issued by the
Cabinet Secretariat of the Union government494 acknowledges that the
Aadhaar enrolment process has not been completed and that infrastructure
constraints are capable of posing difficulties in online authentication. The
Memorandum provides that those beneficiaries who do not possess Aadhaar,
492 Ibid, at page 174
493 Ibid, at page 194
494 Office Memorandum dated 19 December 2017, available athttps://dbtbharat.gov.in/data/om/Office%20Memorandum_Aadhaar.pdf
367
PART Hshall be provided a subsidy, benefit or service based on alternate identification
documents as contemplated by Section 7 of the Aadhaar Act. It also requires
efforts to be made to ensure that all beneficiaries are facilitated to get
enrolment under the Aadhaar programme. The Memorandum creates a
mechanism for availing subsidies, benefits or services in cases where
Aadhaar authentication fails:
(i) Departments and Bank Branches may make provisions for IRIS scanners
along with fingerprint scanners wherever feasible;
(ii) In cases of failure due to lack of connectivity, offline authentication
systems such as QR code based coupons, Mobile based OTP or TOTP
may be explored; and
(iii) In all cases where online authentication is not feasible, the benefit/service
may be provided on the basis of possession of Aadhaar, after duly
recording the transaction in a register, to be reviewed and audited
periodically.
The figures from the Economic Survey of India indicate that there are millions
of eligible beneficiaries across India who have suffered financial exclusion.
The Cabinet Secretariat has pro-actively acknowledged the need to address
matters of exclusion by implementing alternate modalities, apart from those
set out in Section 7. Options (i) and (ii) above were to be implemented in
future. This exercise should have been undertaken by the government in
advance. Problems have to be anticipated when a project is on the drawing
368
PART Hboard, not after severe deprivations have been caused by the denial of social
welfare benefits.
265 Exclusion of citizens from availing benefits of social security schemes
because of failures or errors in Aadhaar based biometric authentication has
also been documented in research studies and academic writings published
by members of civil society, including Reetika Khera and Jean Dreze. Similar
testimonies have been recorded in affidavits submitted before this Court by
civil society activists. Hearing the voices of civil society must be an integral
part of the structural design of a project, such as Aadhaar. In the absence of a
credible mechanism to receive and respond to feed-back, the state has to
depend on its own personnel who may not always provide reliable and candid
assessments of performance and failure.
266 ABBA (Aadhaar based biometric authentication) refers to the practice of
installing a Point of Sale (PoS) machine equipped with a fingerprint reader and
authenticating a person each time she accesses her entitlements.495 Dreze
has stated that for successful authentication in PDS outlets, several
technologies need to work simultaneously.496 These are497:
495Reetika Khera, Impact of Aadhaar on Welfare Programmes, Economic Political Weekly, Vol. 52 (16
December 2017), available at
programmes.html
496Jean Dreze, Dark clouds over the PDS, The Hindu (10 September 2016), available athttps://www.thehindu.com/opinion/lead/Dark-clouds-over-the-PDS/article14631030.ece
497 Anmol Somanchi, Srujana Bej, and Mrityunjay Pandey, Well Done ABBA? Aadhaar and the Public DistributionSystem in Hyderabad, Economic Political Weekly (18 February 2017), Vol. 52, available at
369
PART H(a) Seeding of Aadhaar numbers: An eligible individual can become a
beneficiary and access the PDS system only if her Aadhaar number is
correctly seeded onto the PDS database and added to the household
ration card;
(b) Point of Sale (PoS) machines: The process at the PDS outlet is
dependent on the PoS machine. If it malfunctions, no transaction can be
made. The first step in the process requires the dealer to enter the ration
card number of the beneficiary’s household onto the PoS machine;
(c) Internet connection: Successful working of the PoS machine depends on
internet connectivity as verification of the ration card number and the
beneficiary’s biometric fingerprint is carried out over the internet;
(d) Remote Aadhaar servers: Remote Aadhaar servers verify the ration card
number and initiate fingerprint authentication; and
(e) Fingerprint recognition software: The beneficiary proves her identity by
submitting to fingerprint recognition in the PoS machine. Upon verification,
the PoS machine indicates that the beneficiary is genuine and that
foodgrains can be distributed to her household.
The above procedure requires that at the time of purchase of PDS grains each
month, any one person listed on the ration card needs to authenticate
themselves. Similarly, for pensions, elderly persons must go to the point of
delivery to authenticate themselves. Reetika Khera has observed that since
ABBA on PoS machines is currently a monthly activity, so each of its
370
PART Hassociated technologies (correct Aadhaar-seeding, mobile connectivity,
electricity, functional PoS machines and UIDAI servers and fingerprint
recognition) needs to work for a person to get their entitlement.498 Dreze has
referred to the above procedure as “a wholly inappropriate technology for rural
India”499. Network failures and other glitches routinely disable this sort of
technology. Dreze has further observed that in villages with poor connectivity,
it is a “recipe for chaos”500.
267 A government-commissioned sample study501 in Andhra Pradesh to
ascertain the efficiency of Aadhaar-based social programmes in the case of
subsidised grains indicated that technical deficiencies are depriving the poor
of their access to food. The study was commissioned by the state government
after it was found that 22% of the PDS beneficiaries did not take the ration in
the month of May 2015. The sample study, which covered five PDS outlets in
three districts, found that half of the beneficiaries of PDS in the surveyed
areas could not access their ration quota due to glitches, lack of training and
mismatches linked to Aadhaar. In the survey, a majority of beneficiaries
reported fingerprint mismatches and the inability of fair-price shop owners to
498
Reetika Khera, Impact of Aadhaar on Welfare Programmes, Economic Political Weekly, Vol. 52 (16
December 2017), available at
programmes.html
499Jean Dreze, Dark clouds over the PDS, The Hindu (10 September 2016), available athttps://www.thehindu.com/opinion/lead/Dark-clouds-over-the-PDS/article14631030.ece
500Ibid
501Society for Social Audit, Accountability and Transparency, FP Shops Left Over Beneficiaries Report, availableat
%20(Ration%20Card%20Holders)%20-%20Beneficiaries%20Report.pdftypeapplication. See also Aadhaar-
based projects failing the poor, says Andhra govt study, Hindustan Times (7 October 2015), available at7MFBCeJcfl85Lc5zztON6L.html
371
PART Hoperate point-of-sale (POS) devices correctly as major hurdles. Aadhaar
numbers did not match with ration card numbers in many cases.
Another survey502 of 80 households conducted in Hyderabad finds that despite
the introduction of technology-intensive authentication and payment systems,
a significant number of those vulnerable and dependent on Public Distribution
System (PDS) for food grains are failing to realise their right to food. The
survey revealed that among 80 surveyed households, 89% reported receiving
full entitlements at correct prices even before the introduction of Aadhaar-
based biometric authentication (ABBA). In contrast, 10% of households were
excluded due to authentication failures due to reported errors with one or
more of its five technological components.
268 An article titled “Aadhaar and Food Security in Jharkhand: Pain
without Gain?”503, based on a household survey in rural Jharkhand,
examines various issues related to compulsory ABBA for availing PDS
benefits. The article notes the impact of PDS on the lives of the rural poor,
who visit the ration shop every month. In “their fragile and uncertain lives”, the
PDS provides a “modicum of food and economic security”. The article notes
that in ABBA, the failure of authentication results in denial of food from ration
shops. The household is unable to get food rations for no fault of its own. The
502Anmol Somanchi, Srujana Bej, and Mrityunjay Pandey, Well Done ABBA? Aadhaar and the Public Distribution
System in Hyderabad, Economic Political Weekly, Vol. 52 (18 February 2017), available at503Jean Drèze, Nazar Khalid, Reetika Khera, and Anmol Somanchi, Aadhaar and Food Security in Jharkhand:
Pain without Gain?, Economic Political Weekly, Vol. 52 (16 December 2017).
372
PART Harticle comes to the conclusion that the imposition of ABBA on the PDS in
Jharkhand is a case of “pain without gain”, as it has led to serious problems of
exclusion (particularly for vulnerable groups such as widows, the elderly and
manual workers). The article further notes that ABBA has neither failed to
reduce quantity fraud (which is the main form of PDS corruption in
Jharkhand), nor has it helped to address other critical shortcomings of the
PDS in Jharkhand, such as the problem of missing names in ration cards, the
identification of Antyodaya (poorest of the poor) households, or the arbitrary
power of private dealers. The article identifies poor internet connectivity as
one of the reasons for authentication failures and eventual exclusion:
“Sporadic internet connectivity is another major hurdle.
Sometimes, light rain is enough to disrupt connectivity or the
electricity supply. Every step in the ABBA process—ration
card verification, biometric authentication, electronic upload of
transactions, updating NFSA [National Food Security Act] lists
and entitlements on the PoS504 [Point of Sale] machine—
depends on internet connectivity. Further, even with stable
connectivity, biometric authentication is not always easy.Biometric failures are especially common for two groups: the
elderly, and manual labourers. Both are particularly
vulnerable to food insecurity.”505The article regards the denial of basic services to the poor due to failure of
ABBA as a form of grave injustice:
504 Ibid, at page 51. The article states: “[PoS] is a handheld device installed at every PDS outlet (“ration shop”)
and connected to the Internet. The list of ration cards attached to that outlet, and their respective entitlements,
are stored in the PoS machine and updated every month. When a cardholder turns ups, the PoS machine first
“authenticates” her by matching her fingerprints with the biometric data stored against her Aadhaar number in
the Central Identities Data Repository (CIDR). The machine then generates a receipt with the person’s
entitlements, which are also audible from a recorded message... The transaction details are also supposed to
be entered by the dealer in the person’s ration card.”
505 Ibid, at page 55373
PART H“Imposing a technology that does not work on people
who depend on it for their survival is a grave injustice.”506
(Emphasis supplied)As we have noted in an earlier part of this judgment, even the Economic
Survey of India 2016-17 found a 49% failure rate for beneficiaries in
Jharkhand and 37% in Rajasthan. Those at the receiving end are the poorest
of the poor.
Reetika Khera looks at the impact of Aadhaar-integration with security
schemes (primarily in MGNREGA, PDS and social security pensions). 507 The
author also discusses briefly the impact of Aadhaar on liquefied petroleum gas
(LPG) subsidy and the application of Aadhaar in the mid-day meal (MDM)
scheme. In coming to its conclusions, the article has relied upon quantitative
data from primary field studies, secondary data from government portals,
figures obtained through queries made under the Right to Information (RTI)
Act, and responses to questions in Parliament. In Khera’s words, Aadhaar is
becoming a “tool of exclusion”:
“Savings or exclusion? The government claimed that
Aadhaar integration saved 399 crore up to 31 December
2016 (GoI 2017c). At a given level of benefits, a reduction in
government expenditure in any particular transfer scheme
can be on two counts: removal of ghosts and duplicates
(“efficiency”); and a fall in the number of genuine beneficiaries
(“shrinkage”), for instance, if they do not link their Aadhaar
numbers when required. Across welfare schemes, the
government has been treating any reduction in expenditure
as “savings,” even when it comes from shrinkage. This is true506Ibid, at page 58
507 Reetika Khera, Impact of Aadhaar on Welfare Programmes, Economic Political Weekly, Vol. 52 (16
December 2017), available atprogrammes.html
374
PART Hfor SSP [social security pension] as well. For instance, in
Rajasthan, pensioners were “mistakenly” recorded as dead
and this was presented as Aadhaar-enabled savings (Yadav
2016f). In Jharkhand too, pensioners’ names have been
deleted because they did not complete Aadhaar-seeding
formalities or pensions stopped due to seeding errors (Sen
2017a). Studying 100 pensioners, selected from 10 randomly-
selected villages from five blocks of Ranchi district in
February 2017, Biswas (2017) finds that 84% of her
respondents receive pensions but irregularity in payments
was a big issue. The remaining 16% were not receiving it due
to Aadhaar-related issues.”508Puja Awasthi documents the plight of individuals suffering from leprosy, who
have been denied pensions due to not being able to get enrolled into the
Aadhaar system. Leprosy can damage fingerprints and thus make an
individual incapable of providing biometrics. Awasthi’s article509 notes that
Aadhaar is capable of causing a denial of benefits or services to 86,000
citizens, who suffer from leprosy.
These writings show how in most cases, an authentication failure means that
the individual/household was denied the benefit of a social security
programme for no fault of their own. Some have gone hungry. Some
reportedly lost their lives.510
508 Ibid, at page 66
509Puja Awasthi, Good enough to vote, not enough for Aadhaar, People’s Archive of Rural India, available at
https://ruralindiaonline.org/articles/good-enough-to-vote-not-enough-for-aadhaar
510 Yet another Aadhaar-linked death? Denied rations for 4 months, Jharkhand woman dies of hunger, Scroll (3Feb. 2018), available at: https://scroll.in/article/867352/yet-another-aadhaar-linked-death-jharkhand-woman-
dies-of-hunger-after-denial-of-rations; Denied food because she did not have Aadhaar-linked ration card,
Jharkhand girl dies of starvation, Scroll (16 Oct 2017), available at: https://scroll.in/article/854225/denied-food-
because-she-did-not-have-aadhaar-linked-ration-card-jharkhand-girl-dies-of-starvation375
PART H269 A person’s biometrics change over time. For persons, who are engaged
in manual labour, and persons who are disabled or aged, fingerprints actually
cannot be captured by biometric devices. The material which has been relied
upon in this segment originates from government’s official documents as well
as from distinguished academics and researchers from civil society. There
exist serious issues of financial exclusion. Pensions for the aged particularly
in cases where a pension is earned for past service – are not charity or doles.
They constitute legal entitlements. For an old age pensioner, vicissitudes of
time and age obliterate fingerprints. Hard manual labour severely impacts
upon fingerprints. The elderly, the disabled and the young are the most
vulnerable and a denial of social welfare entitlements verily results in a
deprivation of the right to life. Should the scholarship of a girl child or a mid-
day meal for the young be made to depend on the uncertainties of biometric
matches? Our quest for technology should not be oblivious to the country’s
real problems: social exclusion, impoverishment and marginalisation. The
Aadhaar project suffers from crucial design flaws which impact upon its
structural probity. Structural design in delivering welfare entitlements must be
compliant with structural due process, to be in accord with Articles 14 and 21.
The Aadhaar project has failed to account for and remedy the flaws in its
framework and design which lead to serious issues of exclusion. Dignity and
rights of individuals cannot be based on algorithms or probabilities.
Constitutional guarantees cannot be subject to the vicissitudes of technology.
376
PART H270 Structural due process imposes requirements on public institutions and
projects at the macro level. Structural due process requires that the delivery
of social welfare benefits must be effective and timely. Those who are eligible
for the benefits must not face exclusion. Procedures for the disbursal of
benefits must not be oppressive. They must be capable of compliance both by
those who disburse and by those who receive the benefits. Deployment of
technology must factor in the available of technological resources in every part
of the coverage area and the prevailing levels of literacy and awareness.
Above all, the design of the project will be compliant with structural due
process only if it is responsive to deficiencies, accountable to the beneficiaries
and places the burden of ensuring that the benefits reach the marginalised on
the state and its agencies.
H.6 Constitutional validity of Section 139AA of the Income Tax Act
1961271 Section 139AA of the Income Tax Act 1961 which was inserted by the
Finance Act 2017, mandates the quoting of an Aadhaar number in the application
for a Permanent Account Number (PAN) and in the return of income tax. Failure
to intimate an Aadhaar number results in the PAN being deemed invalid
retrospectively.
Section 139AA reads thus:
“Quoting of Aadhaar number.- (1) Every person who is
eligible to obtain Aadhaar number shall, on or after the 1st
day of July, 2017, quote Aadhaar number-(i) in the application form for allotment of permanent
account number;377
PART H
(ii) in the return of income:
Provided that where the person does not possess
the Aadhaar Number, the Enrolment ID of
Aadhaar application form issued to him at the time
of enrolment shall be quoted in the application for
permanent account number or, as the case may
be, in the return of income furnished by him.(2) Every person who has been allotted permanent account
number as on the 1st day of July, 2017, and who is eligible to
obtain Aadhaar number, shall intimate his Aadhaar number to
such authority in such form and manner as may be
prescribed, on or before a date to be notified by the Central
Government in the Official Gazette:Provided that in case of failure to intimate the
Aadhaar number, the permanent account number
allotted to the person shall be deemed to be
invalid and the other provisions of this Act shall
apply, as if the person had not applied for
allotment of permanent account number.(3) The provisions of this Section shall not apply to such
person or class or classes of persons or any State or part of
any State, as may be notified by the Central Government in
this behalf, in the Official Gazette.Explanation. - For the purposes of this section, the
expressions –(i) “Aadhaar number”, “Enrolment” and “resident”
shall have the same meanings respectively
assigned to them in Clauses (a), (m) and (v) of
Section 2 of the Aadhaar (Targeted Delivery of
Financial and other Subsidies, Benefits and
Services) Act, 2016 (18 of 2016);(ii) “Enrolment ID” means a 28 digit Enrolment
Identification Number issued to a resident at the
time of enrolment.”272 In Binoy Viswam v Union of India (“Binoy Viswam”),511 a two judge
Bench (consisting of Dr Justice AK Sikri and Justice Ashok Bhushan) upheld
the constitutional validity of Section 139AA. Since the issue of whether privacy
is a constitutionally guaranteed right was pending before a Bench of nine
judges (the decision in Puttaswamy was still to be delivered), the two judge
511 (2017) 7 SCC 59
378
PART HBench did not dwell on the challenge to the legislation on the ground of
privacy and under Article 21. The Bench examined other submissions based
on Articles 14 and 19 and on the competence of Parliament to enact the law.
273 The decision in Binoy Viswam holds that in assessing the
constitutional validity of a law, two grounds of judicial review are available:
(i) The legislative competence of the law-making body which has enacted
the law, over the subject of legislation; and
(ii) Compliance with Part III of the Constitution, which enunciates the
fundamental rights, and with the other provisions of the Constitution.
Holding that a third ground of challenge – that the law in question is arbitrary –
is not available, the decision in Binoy Viswam placed reliance on the
enunciation of law by a three judge Bench in State of A P v McDowell Co
(Mcdowell).512 McDowell ruled that while a challenge to a statute on the
ground that it violates the principle of equality under Article 14 is available, a
statute cannot be invalidated on the ground that it is arbitrary:
“43…In other words, say, if an enactment is challenged as
violative of Article 14, it can be struck down only if it is found
that it is violative of the equality clause/equal protection
clause enshrined therein…
No enactment can be struck down by just saying that it is
arbitrary or unreasonable. Some or other constitutional
infirmity has to be found before invalidating an Act.”513512 (1996) 3 SCC 709
513 Ibid, at page 124379
PART HIn Binoy Viswam, the two judge Bench observed that the “contours” of
judicial review had been spelt out in State of Madhya Pradesh v Rakesh
Kohli,514 and more recently in Rajbala v State of Haryana.515 Reiterating the
same position, Binoy Viswam holds:
“81.Another aspect in this context, which needs to be
emphasised, is that a legislation cannot be declared
unconstitutional on the ground that it is “arbitrary” inasmuch
as examining as to whether a particular Act is arbitrary or not
implies a value judgment and the courts do not examine the
wisdom of legislative choices and, therefore, cannot
undertake this exercise.”516274 In the decision of the Constitution Bench in Shayara Bano v Union of
India (“Shayara Bano”),517 Justice Rohinton Nariman speaking for himself
and Justice Uday U Lalit noticed that the dictum in McDowell, to the effect
that “no enactment can be struck down by just saying it is arbitrary or
unreasonable” had failed to notice the judgment of the Constitution Bench in
Ajay Hasia v Khalid Mujib Sehravardi (“Ajay Hasia”),518 and a three judge
Bench decision in Dr K R Lakshmanan v State of T N (“Lakshmanan”).519
In Ajay Hasia, the Constitution Bench traced the evolution of the doctrine of
equality beyond its origins in the doctrine of classification. Ajay Hasia ruled
that since the decision in E P Royappa v State of Tamil Nadu,520 it had been
held that equality had a substantive content which, simply put, was the
antithesis of arbitrariness. Consequently:
514 (2012) 6 SCC 312
515 (2016) 2 SCC 445
516 Ibid, at page 125
517 (2017) 9 SCC 1
518 (1981) 1 SCC 722
519 (1996) 2 SCC 226
520 (1974) 4 SCC 3380
PART H“16...Wherever therefore there is arbitrariness in State
action whether it be of the legislature or of the executive
or of an “authority” under Article 12, Article 14
immediately springs into action and strikes down such
State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is
a golden thread which runs through the whole of the fabric of
the Constitution.”521 (Emphasis supplied)The principle of arbitrariness was applied for invalidating a State law by the
three judge Bench decision in Lakshmanan. It was, in this context that Justice
Nariman speaking for two Judges in the Constitution Bench in Shayara Bano
held that manifest arbitrariness is a component of Article 14. Hence, a law
which is manifestly arbitrary would violate the fundamental right to equality:
“87. The thread of reasonableness runs through the entire
fundamental rights chapter. What is manifestly arbitrary is
obviously unreasonable and being contrary to the rule of law,
would violate Article 14. Further, there is an apparent
contradiction in the three-Judge Bench decision in McDowell
when it is said that a constitutional challenge can succeed on
the ground that a law is “disproportionate, excessive or
unreasonable”, yet such challenge would fail on the very
ground of the law being “unreasonable, unnecessary or
unwarranted”. The arbitrariness doctrine when applied to
legislation obviously would not involve the latter challenge but
would only involve a law being disproportionate, excessive or
otherwise being manifestly unreasonable. All the aforesaid
grounds, therefore, do not seek to differentiate between State
action in its various forms, all of which are interdicted if they
fall foul of the fundamental rights guaranteed to persons and
citizens in Part III of the Constitution.”522Justice Nariman has observed that even after McDowell, challenges to the
validity of legislation have been entertained on the ground of arbitrariness
521 Ajay Hasia at page 741
522 Ibid, at pages 91-92381
PART H(Malpe Vishwanath Acharya v State of Maharashtra,523 Mardia Chemicals
Ltd. v Union of India,524 State of Tamil Nadu v K Shyam Sunder,525
Andhra Pradesh Dairy Development Corporation Federation v B
Narasimha Reddy526 and K T Plantation Private Limited v State of
Karnataka527).
275 In Shayara Bano, Justice Nariman has adverted to the decisions which
have followed McDowell including the two judge Bench decision in Binoy
Viswam. These decisions, in the view of Justice Nariman, are therefore no
longer good law:
“99. However, in State of Bihar v. Bihar Distillery Ltd., SCC at
para 22, in State of M.P. v. Rakesh Kohli, SCC at paras 17 to
19, in Rajbala v. State of Haryana, SCC at paras 53 to 65 and
in Binoy Viswam v. Union of India, SCC at paras 80 to
82, McDowell was read as being an absolute bar to the use of
“arbitrariness” as a tool to strike down legislation under Article14. As has been noted by us earlier in this
judgment, McDowell itself is per incuriam, not having noticed
several judgments of Benches of equal or higher strength, its
reasoning even otherwise being flawed. The judgments,
following McDowell are, therefore, no longer good law.”528In the above extract, Justice Nariman has specifically held that the McDowell
test which barred a challenge to a law on the ground of arbitrariness ignored a
binding Constitution Bench view in Ajay Hasia and that of a three judge
Bench in Lakshmanan. Moreover, the above extract from Shayara Bano
523 (1998) 2 SCC 1
524 (2004) 4 SCC 311
525 (2011) 8 SCC 737
526 (2011) 9 SCC 286
527 (2011) 9 SCC 1
528 Ibid, at page 97382
PART Hdisapproves of the restriction on judicial review in Binoy Viswam, which
follows McDowell. Justice Kurian Joseph, in the course of his decision has
specifically agreed with the view expressed by Justice Nariman:
“5…However, on the pure question of law that a legislation,
be it plenary or subordinate, can be challenged on the ground
of arbitrariness, I agree with the illuminating exposition of law
by Nariman J. I am also of the strong view that the
constitutional democracy of India cannot conceive of a
legislation which is arbitrary.”276 In Puttaswamy, the judgment delivered on behalf of four Judges
expressly recognized the impact of Article 14 in determining whether a law
which is challenged on the ground that it violates Article 21 meets both the
procedural as well as the substantive content of reasonableness. The Court
held:
“291… the evolution of Article 21, since the decision
in Cooper indicates two major areas of change. First, the
fundamental rights are no longer regarded as isolated silos or
watertight compartments. In consequence, Article 14 has
been held to animate the content of Article 21. Second, the
expression “procedure established by law” in Article 21 does
not connote a formalistic requirement of a mere presence of
procedure in enacted law. That expression has been held to
signify the content of the procedure and its quality which must
be fair, just and reasonable. The mere fact that the law
provides for the deprivation of life or personal liberty is not
sufficient to conclude its validity and the procedure to be
constitutionally valid must be fair, just and reasonable. The
quality of reasonableness does not attach only to the content
of the procedure which the law prescribes with reference to
Article 21 but to the content of the law itself. In other words,
the requirement of Article 21 is not fulfilled only by the
enactment of fair and reasonable procedure under the law
and a law which does so may yet be susceptible to challenge
on the ground that its content does not accord with the
requirements of a valid law. The law is open to substantive
challenge on the ground that it violates the fundamental
right.”529529 Ibid, at page 495
383
PART HThe same principle has been emphasized in the following observations:
“294…Article 14, as a guarantee against arbitrariness, infuses
the entirety of Article 21. The interrelationship between the
guarantee against arbitrariness and the protection of life and
personal liberty operates in a multi-faceted plane. First, it
ensures that the procedure for deprivation must be fair, just
and reasonable. Second, Article 14 impacts both the
procedure and the expression “law”. A law within the meaning
of Article 21 must be consistent with the norms of fairness
which originate in Article 14. As a matter of principle, once
Article 14 has a connect with Article 21, norms of fairness and
reasonableness would apply not only to the procedure but to
the law as well.”530277 In Binoy Viswam, the two judge Bench held that while enrolment
under the Aadhaar Act is voluntary, it was legitimately open to the Parliament,
while enacting Section 139AA of the Income Tax Act to make the seeding of
the Aadhaar number with the PAN card mandatory. The court held that the
purpose of making it mandatory under the Income Tax Act was to curb black
money, money laundering and tax evasion. It was open to Parliament to do so
and its legislative competence could not be questioned on that ground. The
court held that the legislative purpose of unearthing black money and curbing
money laundering furnished a valid nexus with the objective sought to be
achieved by the law:
“105. Unearthing black money or checking money laundering
is to be achieved to whatever extent possible. Various
measures can be taken in this behalf. If one of the measures
is introduction of Aadhaar into the tax regime, it cannot be
denounced only because of the reason that the purpose
would not be achieved fully. Such kind of menace, which is
deep-rooted, needs to be tackled by taking multiple actions
and those actions may be initiated at the same time. It is the
combined effect of these actions which may yield results and530 Ibid, at page 496
384
PART Heach individual action considered in isolation may not be
sufficient. Therefore, rationality of a particular measure
cannot be challenged on the ground that it has no nexus with
the objective to be achieved. Of course, there is a definite
objective. For this purpose alone, individual measure cannot
be ridiculed. We have already taken note of the
recommendations of SIT on black money headed by Justice
M.B. Shah. We have also reproduced the measures
suggested by the Committee headed by Chairman, CBDT on
“Measures to Tackle Black Money in India and Abroad”. They
have, in no uncertain terms, suggested that one singular
proof of identity of a person for entering into finance/business
transactions, etc. may go a long way in curbing this foul
practice. That apart, even if solitary purpose of de-duplication
of PAN cards is taken into consideration, that may be
sufficient to meet the second test of Article 14. It has come on
record that 11.35 lakh cases of duplicate PAN or fraudulent
PAN cards have already been detected and out of this 10.52
lakh cases pertain to individual assessees. Seeding of
Aadhaar with PAN has certain benefits which have already
been enumerated. Furthermore, even when we address the
issue of shell companies, fact remains that companies are
after all floated by individuals and these individuals have to
produce documents to show their identity. It was sought to be
argued that persons found with duplicate/bogus PAN cards
are hardly 0.4% and, therefore, there was no need to have
such a provision. We cannot go by percentage figures. The
absolute number of such cases is 10.52 lakhs, which figure,
by no means, can be termed as miniscule, to harm the
economy and create adverse effect on the nation. The
respondents have argued that Aadhaar will ensure that there
is no duplication of identity as biometrics will not allow that
and, therefore, it may check the growth of shell companies as
well.106. Having regard to the aforesaid factors, it cannot be said
that there is no nexus with the objective sought to be
achieved.”531The court observed that it was a harsh reality of our times that the benefit of
welfare measures adopted by the State does not reach the segments of
society for whom they are intended:
“125.1.3… However, for various reasons including corruption,
actual benefit does not reach those who are supposed to
receive such benefits. One of the main reasons is failure to531 Ibid, at pages 134-135
385
PART Hidentify these persons for lack of means by which identity
could be established of such genuine needy class.Resultantly, lots of ghosts and duplicate beneficiaries are able
to take undue and impermissible benefits. A former Prime
Minister of this country has gone on record to say that out of
one rupee spent by the Government for welfare of the
downtrodden, only 15 paisa thereof actually reaches those
persons for whom it is meant. It cannot be doubted that with
UID/Aadhaar much of the malaise in this field can be taken
care of.”532In this context, the court also noted that as a result of de-duplication
exercises, 11.35 lakh cases of duplicate PANs / fraudulent PANs had been
detected out of which 10.52 lakh cases pertained to individual assesses. The
court upheld the decision of Parliament as the legislating body of seeding
PANs with Aadhaar as “the best method, and the only robust method of de-
duplication of PAN database”.
278 The edifice of Section 139AA is based on the structure created by the
Aadhaar Act. Section 139AA of the Income Tax Act 1962 is postulated on the
requirement of Aadhaar having been enacted under a valid piece of
legislation. The validity of the legislation seeding Aadhaar to PAN is
dependent upon and cannot be segregated from the validity of the parent
Aadhaar legislation. In fact, that is one of the reasons why in Binoy Viswam,
the Article 21 challenge was not adjudicated upon since that was pending
consideration before a larger Bench. The validity of seeding Aadhaar to PAN
under Section 139AA must therefore depend upon the constitutional validity of
the Aadhaar Act as it is determined by this Court. Further Rule 114B of the
532 Ibid, at page 146
386
PART HIncome Tax Rules 1962 provides for a list of transactions for which a person
must quote a PAN card number. Rule 114B requires that a person must
possess a PAN card for those transactions. These are summarized below:
• “Sale or purchase of a motor vehicle or vehicle, as
defined in clause (28) of section 2 of the Motor Vehicles
Act, 1988 (59 of 1988) which requires registration by a
registering authority under Chapter IV of that Act, other
than two wheeled vehicles.• Opening an account [other than a time-deposit and a
Basic Savings Bank Deposit Account] with a banking
company or a co-operative bank to which the Banking
Regulation Act, 1949 (10 of 1949), applies (including any
bank or banking institution referred to in section 51 of that
Act).• Making an application to any banking company or a co-
operative bank to which the Banking Regulation Act, 1949
(10 of 1949), applies (including any bank or banking
institution referred to in section 51 of that Act) or to any
other company or institution, for issue of a credit or debit
card.• Opening of a demat account with a depository,
participant, custodian of securities or any other person
registered under sub-section (1A) of section 12 of the
Securities and Exchange Board of India Act, 1992 (15 of
1992).• Payment to a hotel or restaurant against a bill or bills at
any one time.• Payment in connection with travel to any foreign country
or payment for purchase of any foreign currency at any
one time.• Payment to a Mutual Fund for purchase of its units.
• Payment to a company or an institution for acquiring
debentures or bonds issued by it.• Payment to the Reserve Bank of India, constituted under
section 3 of the Reserve Bank of India Act, 1934 (2 of
1934) for acquiring bonds issued by it.• Deposit with,—
• banking company or a co-operative bank to which
the Banking Regulation Act, 1949 (10 of 1949),
applies (including any bank or banking institution
referred to in section 51 of that Act);• Post Office.
• Purchase of bank drafts or pay orders or banker's
cheques from a banking company or a co-operative bank
to which the Banking Regulation Act, 1949 (10 of 1949),387
PART Happlies (including any bank or banking institution referred
to in section 51 of that Act).• A time deposit with, —
• a banking company or a co-operative bank to which
the Banking Regulation Act, 1949 (10 of 1949),
applies (including any bank or banking institution
referred to in section 51 of that Act);• a Post Office;
• a Nidhi referred to in section 406 of the Companies
Act, 2013 (18 of 2013); or
• a non-banking financial company which holds a
certificate of registration under section 45-IA of the
Reserve Bank of India Act, 1934 (2 of 1934), to hold
or accept deposit from public.• Payment for one or more pre-paid payment instruments,
as defined in the policy guidelines for issuance and
operation of pre-paid payment instruments issued by
Reserve Bank of India under section 18 of the Payment
and Settlement Systems Act, 2007 (51 of 2007), to a
banking company or a co-operative bank to which the
Banking Regulation Act, 1949 (10 of 1949), applies
(including any bank or banking institution referred to in
section 51 of that Act) or to any other company or
institution.• Payment as life insurance premium to an insurer as
defined in clause (9) of section 2 of the Insurance Act,
1938 (4 of 1938).• A contract for sale or purchase of securities (other than
shares) as defined in clause (h) of section 2 of the
Securities Contracts (Regulation) Act, 1956 (42 of 1956).
• Sale or purchase, by any person, of shares of a company
not listed in a recognised stock exchange.• Sale or purchase of any immovable property.
• Sale or purchase, by any person, of goods or services of
any nature other than those specified above.”The decision in Puttaswamy has recognised that protection of the interests of
the revenue constitutes a legitimate state aim in the three-pronged test of
proportionality. The circumstances which have been adverted to in the
decision in Binoy Viswam are a sufficient indicator of the legitimate concerns
of the revenue to curb tax evasion, by embarking upon a programme for de-
duplication of the Pan data base. A legitimate state aim does exist. However,
388
PART Hthat in itself is not sufficient to uphold the validity of the law, which must meet
the other parameters of proportionality spelt out in Puttaswamy. The
explanation to Section 139AA adopts the definition of the expressions
‘Aadhaar number’, ‘enrolment’ and ‘resident’ from the parent Aadhaar
legislation. The seeding of Aadhaar with Pan cards must depend for its validity
on the constitutional validity of the Aadhaar legislation. Hence, besides
affirming that the object of the measure in Section 139AA constitutes a
legitimate state aim, the decision of this Court in regard to the validity of
Aadhaar will impact upon the seeding of PAN with Aadhaar, which Section
139AA seeks to achieve.
H.7 Linking of SIM cards and Aadhaar numbers
279 In Avishek Goenka v Union of India533, a three judge Bench of this
Court dealt with a public interest litigation seeking to highlight the non-
observance of norms, regulations and guidelines relating to subscriber
verification by Telecom Service Providers (TSPs). The Department of
Telecommunications (DoT), in the course of the proceedings, filed its
instructions stating its position in regard to the verification of prepaid and
postpaid mobile subscribers. While concluding the proceedings, this Court
directed the constitution of an expert committee comprising of representatives
of TRAI and DoT. The court mandated that the following issues should be
examined by the Committee:
533 (2012) 5 SCC 275
389
PART H“(a) Whether re-verification should be undertaken by the
service provider/licensee, DoT itself or any other central
body?(b) Is there any need for enhancing the penalty for
violating the instructions/guidelines including sale of pre-
activated SIM cards?(c) Whether delivery of SIM cards may be made by post?
Which is the best mode of delivery of SIM cards to provide
due verification of identity and address of a subscriber?(d) Which of the application forms i.e. the existing one or
the one now suggested by TRAI should be adopted as
universal application form for purchase of a SIM card?(e) In absence of Unique ID card, whether updating of
subscriber details should be the burden of the licensee
personally or could it be permitted to be carried out through
an authorised representative of the licensee?(f) In the interest of national security and the public
interest, whether the database of all registered subscribers
should be maintained by DoT or by the licensee and how
soon the same may be made accessible to the security
agencies in accordance with law?”534In pursuance of the above directive, DoT issued instructions on the verification
of new mobile subscribers on 9 August 2012. On 6 January 2016, TRAI
addressed a communication to DoT recommending that the new procedure for
subscriber verification was “cumbersome and resource intensive” and hence
should be replaced by an Aadhaar linked e-KYC mechanism. Following this,
DoT issued a directive on 16 August 2016 to launch an Aadhaar e-KYC
service across all licenced service areas for issuance of mobile connections.
However, it was stated that the e-KYC process was an alternative, in addition
to the existing process of issuing mobile connections to subscribers and would
not be applicable for bulk, outstation and foreign customers.
534 Ibid, at page 283
390
PART H280 A public interest litigation was filed before this Court under Article 32 in
Lokniti Foundation v Union of India535. The relief which claimed was that
there should be a definite mobile phone subscriber verification to ensure a
hundred per cent verification of subscribers. Responding to the petition, the
Union Government informed this Court that DoT had launched an Aadhaar
based e-KYC for issuing mobile connections on 16 August 2016, by which
customers as well as point of sale agents of TSPs will be authenticated by
UIDAI. A statement was made by the learned Attorney General that an
effective programme for verification of prepaid connections would be devised
within one year. In view of the statement of the AG, the petition was disposed
of by a two judge Bench in terms of the following directions:
“5. In view of the factual position brought to our notice during
the course of hearing, we are satisfied, that the prayers made
in the writ petition have been substantially dealt with, and an
effective process has been evolved to ensure identity
verification, as well as, the addresses of all mobile phone
subscribers for new subscribers. In the near future, and more
particularly, within one year from today, a similar verification
will be completed, in the case of existing subscribers. While
complimenting the petitioner for filing the instant petition, we
dispose of the same with the hope and expectation, that the
undertaking given to this Court, will be taken seriously, and
will be given effect to, as soon as possible.”536Following the decision, DoT issued a directive on 23 March 2017 to all
licensees stating that a way forward had been found to implement the
directions of the Supreme Court. Based on the hypothesis that this Court had
directed an E-KYC verification, DoT proceeded to implement it on 23 March
2017.
535 (2017) 7 SCC 155
536 Ibid, at page 156391
PART H281 Mr Rakesh Dwivedi, learned Senior Counsel appearing on behalf of
UIDAI and the State of Gujarat supported the measure. He submitted that the
licences of all TSPs are issued under Section 4 of the Indian Telegraph Act
1885. Since the Central Government has the exclusive privilege of
establishing, maintaining and working telegraphs, TSPs, it was urged, have to
operate the telegraph under a license and the Central Government is entitled
to impose conditions on the licensee. The instruction issued by DoT on 23
March 2017 has, it is urged, the sanction of Section 4 of the Indian Telegraph
Act 1885.
282 We must at the outset note the ambit of the proceedings before this
Court in Lokniti Foundation. In response to the public interest litigation, it
was the Union Government which relied on its decision of 16 August 2016 to
implement e-KYC verification for mobile subscribers. The petition was
disposed of since the prayers were substantially dealt with and the court
perceived that an effective process had been adopted to ensure identity
verification together with verification of addresses. Existing subscribers were
directed to be verified in a similar manner within one year. The issue as to
whether the seeding of Aadhaar with mobile SIM cards was constitutionally
valid did not fall for consideration.
283 The decision to link Aadhaar numbers with SIM cards and to require e-
KYC authentication of mobile subscribers has been looked upon by the Union
392
PART Hgovernment purely as a matter of efficiency of identification. TRAI’s letter
dated 6 January 2016 states that the new procedure for subscriber verification
which it had adopted was “cumbersome and resource intensive”. The issue as
to whether Aadhaar linked e-KYC authentication would seriously compromise
the privacy of mobile subscribers did not enter into the decision making
calculus. In applying the test of proportionality, the matter has to be addressed
not just by determining as to whether a measure is efficient but whether it
meets the test of not being disproportionate or excessive to the legitimate aim
which the state seeks to pursue. TRAI and DoT do have a legitimate concern
over the existence of SIM cards obtained against identities which are not
genuine. But the real issue is whether the linking of Aadhaar cards is the least
intrusive method of obviating the problems associated with subscriber
verification. The state cannot be oblivious to the need to protect privacy and of
the dangers inherent in the utilization of the Aadhaar platform by telecom
service providers. In the absence of adequate safeguards, the biometric data
of mobile subscribers can be seriously compromised and exploited for
commercial gain. While asserting the need for proper verification, the state
cannot disregard the countervailing requirements of preserving the integrity of
biometric data and the privacy of mobile phone subscribers. Nor can we
accept the argument that cell phone data is so universal that one can become
blasé about the dangers inherent in the revealing of biometric information.
393
PART H284 The submission that a direction of this nature could have been given to
TSPs under Section 4 of the Indian Telegraph Act 1885 does not answer the
basic issue of its constitutional validity, which turns upon the proportionality of
the measure. Having due regard to the test of proportionality which has been
propounded in Puttaswamy and as elaborated in this judgment, we do not
find that the decision to link Aadhaar numbers with mobile SIM cards is valid
or constitutional. The mere existence of a legitimate state aim will not justify
the means which are adopted. Ends do not justify means, at least as a matter
of constitutional principle. For the means to be valid, they must be carefully
tailored to achieve a legitimate state aim and should not be either
disproportionate or excessive in their encroachment on individual liberties.
285 Mobile technology has become a ubiquitous feature of our age. Mobile
phones are not just instruments to facilitate a telephone conversation. They
are a storehouse of data reflecting upon personal preferences, lifestyles and
individual choices. They bear upon family life, the workplace and personal
intimacies. The conflation of biometric data with SIM cards is replete with
grave dangers to personal autonomy. A constitution based on liberal values
cannot countenance an encroachment of this nature. The decision to link
Aadhaar numbers to SIM cards and to enforce a regime of e-KYC
authentication clearly does not pass constitutional muster and must stand
invalidated. All TSPs shall be directed by the Union government and by TRAI
to forthwith delete the biometric data and Aadhaar details of all subscribers
394
PART Iwithin two weeks. The above data and Aadhaar details shall not be used or
purveyed by any TSP or any other person or agency on their behalf for any
purpose whatsoever.
I Money laundering rules
286 Parliament enacted a law on money-laundering as part of a concerted
effort by the international community to deal with activities which constitute a
threat to financial systems and to the integrity and sovereignty of nations. The
Statement of Objects and Reasons accompanying the introduction of the Bill
contains an elucidation of the reasons for the enactment:
“Introduction
Money-laundering poses a serious threat not only to the
financial systems of countries, but also to their integrity and
sovereignty. To obviate such threats international community
has taken some initiatives. It has been felt that to prevent
money-laundering and connected activities a comprehensive
legislation is urgently needed. To achieve this objective the
Prevention of Money-laundering Bill, 1998 was introduced in
the Parliament. The Bill was referred to the Standing
Committee on Finance, which presented its report on 4th
March 1999 to the Lok Sabha. The Central Government
broadly accepted the recommendation of the Standing
Committee and incorporated them in the said Bill along with
some other desired changes.Statement of Objects and Reasons
It is being realized, world over, that money-laundering poses
a serious threat not only to the financial systems of countries,
but also to their integrity and sovereignty. Some of the
initiatives taken by the international community to obviate
such threat are outlined below:-(a) the United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, to which
India is a party, calls for prevention of laundering of
proceeds of drug crimes and other connected activities
and confiscation of proceeds derived from such offence.(b) the Basle Statement of Principles, enunciated in 1989,
outlined basic policies and procedures that banks should395
PART Ifollow in order to assist the law enforcement agencies in
tackling the problem of money laundering.(c) the Financial Action Task Force established at the summit
of seven major industrial nations, held in Paris from 14th
to 16th July 1989, to examine the problem of money-
laundering has made forty recommendations, which
provide the foundation material for comprehensive
legislation to combat the problem of money-laundering.
The recommendations were classified under various
heads. Some of the important heads are-(i) declaration of laundering of monies carried through
serious crimes a criminal offence;(ii) to work out modalities of disclosure by financial
institutions regarding reportable transactions;(iii) confiscation of the proceeds of crime;
(iv) declaring money-laundering to be an extraditable
offence; and(v) promoting international co-operation in
investigation of money-laundering.(d) the Political Declaration and Global Programme of Action
adopted by United Nations General Assembly by its
Resolution No. S-17/2 of 23rd February 1990, inter alia,
calls upon the member States to develop mechanism to
prevent financial institutions from being used for
laundering of drug related money and enactment of
legislation to prevent such laundering.(e) the United Nations in the Special Session on countering
World Drug Problem Together concluded on the 8th to the
10th June 1998 has made another declaration regarding
the need to combat money-laundering. India is a
signatory to this declaration.”287 The expressions “beneficial owner, reporting entity and intermediary”
are defined respectively in clauses (fa), (wa) and (n) of the Act thus:
“(fa) “beneficial owner” means an individual who ultimately
owns or controls a client of a reporting entity or the person on
whose behalf a transaction is being conducted and includes a
person who exercises ultimate effective control over a
juridical person.(wa) “reporting entity” means a banking company, financial
institution, intermediary or a person carrying on a designated
business or profession.(n) “intermediary” means,-
(i) a stock-broker, sub-broker share transfer agent, banker
to an issue, trustee to a trust deed, registrar to an issue,396
PART Imerchant banker, underwriter, portfolio manager,
investment adviser or any other intermediary associated
with securities market and registered under section 12 of
the Securities and Exchange Board of India Act, 1992 (15
of 1992); or(ii) an association recognised or registered under the
Forward Contracts (Regulation) Act, 1952 (74 of 1952) or
any member of such association; or(iii) intermediary registered by the Pension Fund
Regulatory and Development Authority; or(iv) a recognised stock exchange referred to in clause (f) of
section 2 of the Securities Contracts (Regulation) Act,
1956 (42 of 1956).”The Prevention of Money-Laundering (Maintenance of Records) Rules 2005
were amended by the Prevention of Money-Laundering (Maintenance of
Records) Second Amendment Rules 2017. By the amendment, several
definitions were introduced with reference to the provisions of the Aadhaar
Act. These are:
“‘(aaa) “Aadhaar number” means an identification number as
defined under sub-section (a) of section 2 of the Aadhaar
(Targeted Delivery of Financial and Other Subsidies, Benefits
and Services) Act, 2016;(aab) “authentication” means the process as defined under
sub-section (c) of section 2 of the Aadhaar (Targeted Delivery
of Financial and Other Subsidies, Benefits and Services) Act,
2016;(aac) “Resident” means an individual as defined under sub-
section (v) of section 2 of the Aadhaar (Targeted Delivery of
Financial and Other Subsidies, Benefits and Services) Act,
2016;(aad) “identity information” means the information as defined
in sub-section (n) of section 2 of the Aadhaar (Targeted
Delivery of Financial and Other Subsidies, Benefits and
Services) Act, 2016;(aae) “e – KYC authentication facility” means an
authentication facility as defined in Aadhaar (Authentication)
Regulations, 2016;(aaf) “Yes/No authentication facility” means an authentication
facility as defined in Aadhaar (Authentication) Regulations,
2016…”397
PART ISimilarly, the expression “officially valid document” was amended to read as
follows:
“(d) “officially valid document” means the passport, the
driving licence, the Permanent Account Number (PAN) Card,
the Voter’s Identity Card issued by [Election Commission of
India, job card issued by NREGA duly signed by an officer of
the State Government, the letter issued by the Unique
Identification Authority of India containing details of name,
address and Aadhaar number or any other document as
notified by the Central Government in consultation with
the [Regulator]:[Provided that where simplified measures are applied for
verifying the identity of the clients the following documents
shall be deemed to be officially valid documents:-(a) identity card with applicant’s Photograph issued by the
Central/State Government Departments, Statutory/
Regulatory Authorities, Public Sector Undertakings,
Scheduled Commercial Banks and Public Financial
Institutions;(b) letter issued by a gazette officer, with a duly attested
photograph of the person].”288 Rule 9 of the 2005 Rules requires every reporting entity to carry out
client due diligence at the time of the commencement of an account-based
relationship. Due diligence requires a verification of the identity of the client
and a determination of whether the client is acting on behalf of a beneficial
owner, who then has to be identified. Rule 9(3) defines the expression
“beneficial owner” for the purpose of sub-rule 1. Rule 9(4) requires an
individual client to submit an Aadhaar number. Rule 9(3) and Rule 9(4) are
extracted below:
“9. Client Due Diligence.—(1) Every reporting entity shall—
xxxxx
xxxxx
(3) The beneficial owner for the purpose of sub-rule (1) shall
be determined as under—(a) where the client is a company, the beneficial owner is
the natural person(s), who, whether acting alone or398
PART Itogether, or through one or more juridical person, has a
controlling ownership interest or who exercises control
through other means.Explanation.—For the purpose of this sub-clause-
1. "Controlling ownership interest" means ownership
of or entitlement to more than twenty-five per cent. of
shares or capital or profits of the company;2. "Control" shall include the right to appoint majority
of the directors or to control the management or
policy decisions including by virtue of their shareholding
or management rights or shareholders agreements or
voting agreements;(b) where the client is a partnership firm, the beneficial
owner is the natural person(s) who, whether acting alone or
together, or through one or more juridical person, has I
ownership of/ entitlement to more than fifteen per cent. of
capital or profits of the partnership;(c) where the client is an unincorporated association or
body of individuals, the beneficial owner is the natural
person(s), who, whether acting alone or together, or through
one or more juridical person, has ownership of or entitlement
to more than fifteen per cent. of the property or capital or
profits of such association or body of individuals;(d) where no natural person is identified under (a) or (b) or (c)
above, the beneficial owner is the relevant natural person
who holds the position of senior managing official;(e) where the client is a trust, the identification of beneficial
owner(s) shall include identification of the author of the trust,
the trustee, the beneficiaries with fifteen per cent. or more
interest in the trust and any other natural person exercising
ultimate effective control over the trust through a chain of
control or ownership; and(f) where the client or the owner of the controlling interest
is a company listed on a stock exchange, or is a subsidiary
of such a company, it is not necessary to identify and verify
the identity of any shareholder or beneficial owner of such
companies.(4) Where the client is an individual, who is eligible to be
enrolled for an Aadhaar number, he shall for the purpose of
sub-rule (1) submit to the reporting entity, -(a) the Aadhaar number issued by the Unique
Identification Authority of India; and(b) the Permanent Account Number or Form No. 60 as
defined in Income-tax Rules, 1962, and such other
documents including in respect of the nature of business and
financial status of the client as may be required by the
reporting entity:Provided that where an Aadhaar number has not been
assigned to a client, the client shall furnish proof of
application of enrolment for Aadhaar and in case the399
PART IPermanent Account Number is not submitted, one certified
copy of an 'officially valid document' shall be submitted.
Provided further that photograph need not be submitted by a
client falling under clause (b) of sub-rule (1).”
(Emphasis supplied)Sub-rule 15 of Rule 9 requires the reporting entity to carry out authentication
at the time of receipt of the Aadhaar number:
“(15) Any reporting entity, at the time of receipt of the
Aadhaar number under provisions of this rule, shall carry out
authentication using either e-KYC authentication facility or
Yes/No authentication facility provided by Unique
Identification Authority of India.”Sub-rule 17 allows a period of six months for a client who is eligible to be
enrolled for Aadhaar and to obtain a PAN to submit it upon the
commencement of the account-based relationship. Failure to do so, would
result in the account ceasing to be operational until the Aadhaar number and
PAN are submitted. Clauses a and c of sub-rule 17 provide as follows :
“(17) (a) In case the client, eligible to be enrolled for Aadhaar
and obtain a Permanent Account Number, referred to in sub-
rules (4) to (9) of rule 9 does not submit the Aadhaar number
or the Permanent Account Number at the time of
commencement of an account based relationship with a
reporting entity, the client shall submit the same within a
period of six months from the date of the commencement of
the account based relationship:Provided that the clients, eligible to be enrolled for Aadhaar
and obtain the Permanent Account Number, already having
an account based relationship with reporting entities prior to
date of this notification, the client shall submit the Aadhaar
number and Permanent Account Number by 31st December,
2017.(c) In case the client fails to submit the Aadhaar number and
Permanent Account Number within the aforesaid six months
period, the said account shall cease to be operational till the
time the Aadhaar number and Permanent Account Number is
submitted by the client:400
PART I
Provided that in case client already having an account based
relationship with reporting entities prior to date of this
notification fails to submit the Aadhaar number and
Permanent Account Number by 31st December, 2017, the
said account shall cease to be operational till the time the
Aadhaar number and Permanent Account Number is
submitted by the client.”289 The statutory mandate for the framing these rules is contained in
Sections 12, 15 and 73 of the PMLA. Insofar as is material, Section 12
provides as follows:
“12. Reporting entity to maintain records:-
(1) Every reporting entity shall-(a) maintain a record of all transactions, including
information relating to transactions covered under
clause (b), in such manner as to enable it to
reconstruct individual transactions;(b) furnish to the Director within such time as may be
prescribed, information relating to such transactions,
whether attempted or executed, the nature and value
of which may be prescribed;(c) verify the identity of its clients in such manner and
subject to such conditions, as may be prescribed;(d) identify the beneficial owner, if any, of such of its
clients, as may be prescribed;(e) maintain record of documents evidencing identity
of its clients and beneficial owners as well as
account files and business correspondence
relating to its clients.(2) Every information maintained, furnished or verified, save
as otherwise provided under any law for the time being in
force, shall be kept confidential.(3) The records referred to in clause (a) of sub-section (1)
shall be maintained for a period of five years from the date
of transaction between a client and the reporting entity.
(4) The records referred to in clause (e) of sub-section (1)
shall be maintained for a period of five years after the
business relationship between a client and the reporting
entity has ended or the account has been close, whichever
is later.(5) The Central Government may, by notification, exempt any
reporting entity or class of reporting entities from any
obligation under this Chapter.”
(Emphasis supplied)401
PART ISection 12 imposes a statutory obligation on reporting entities to maintain
records and to verify the identity of their clients and beneficial owners in the
manner prescribed. The procedure for and manner in which information is
furnished by reporting entities is specified under sub-section 1 of Section 12
by the Central Government in consultation with the Reserve Bank of India.
Section 15 provides as follows:
“15. Procedure and manner of furnishing information by
reporting entities:-The Central Government may, in consultation with the
Reserve Bank of India, prescribe the procedure and the
manner of maintaining and furnishing information by a
reporting entity under sub-section (1) of Section 12 for the
purpose of implementing the provisions of this Act.”
(Emphasis supplied)The rule making power is referable to the provisions of Section 73, which
insofar as is material, provides as follows:
“73. Power to make rules-
(1) The Central Government may, by notification, make rules
for carrying out the provisos of this Act.
(2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of
the following matters, namely-(j) the manner and the conditions in which identity of
clients shall be verified by the reporting entities under
clause (c) of sub-section (1) of Section 12;
(jj) the manner of identifying beneficial owner, if any, from
the clients by the reporting entities under clause (d) of
sub-section (1) of Section 12;(k) the procedure and the manner of maintaining and
furnishing information under sub-section (1) of Section
12 as required under Section 15;(x) any other matter which is required to be, or may be,
prescribed.”Section 12(1)(c) requires the reporting entity to verify the identity of its clients
“in such manner and subject to such conditions” as may be prescribed. The
402
PART Iprovisions of the rules, including sub-rule 17(c) of Rule 9 have been
challenged on the ground that they suffer from the vice of excessive
delegation.
290 In Bombay Dyeing and Mfg v Bombay Environmental Action
Group537, this Court has re-affirmed the well-settled legal test which
determines the validity of delegated legislation. The court held:
“104…By reason of any legislation, whether enacted by the
legislature or by way of subordinate legislation, the State
gives effect to its legislative policy. Such legislation, however,
must not be ultra vires the Constitution. A subordinate
legislation apart from being intra vires the Constitution, should
not also be ultra vires the parent Act under which it has been
made. A subordinate legislation, it is trite, must be reasonable
and in consonance with the legislative policy as also give
effect to the purport and object of the Act and in good faith.”The essential legislative function consists in the determination of legislative
policy and of formally enacting it into a binding rule of conduct. Once this is
carried out by the legislature, ancillary or subordinate functions can be
delegated. Having laid down legislative policy, the legislation may confer
discretion on the executive to work out the details in the exercise of the rule
making power, though, in a manner consistent with the plenary enactment (J
K Industries Ltd v Union of India538).
291 The Reserve Bank of India had issued a Master Circular dated 25
February 2016 in exercise of its statutory powers under Section 35A of the
537 (2006) 3 SCC 434
538 (2007) 13 SCC 673403
PART IBanking Regulation Act 1949 (read with Section 56) and Rule 9(14) of the
Prevention of Money-Laundering (Maintenance of Records) Rules 2005.
Following the amendment of the PMLA Rules, the Master Circular of the
Reserve Bank has been updated on 20 April 2018.
The basic issue which needs to be addressed is whether the amendments
which were brought about to the PMLA Rules in 2017 meet the test of
proportionality.
292 In 2005, the Central Government in consultation with the Reserve Bank
of India notified the Prevention of Money-Laundering (Maintenance of
Records) Rules 2005 under Section 73 of the parent Act. The expression
‘officially valid document’ was defined in Rule 2(d) in the following terms :
“(d) “officially valid document” means the passport, the driving
licence, the Permanent Account Number (PAN) Card, the
Voter’s Identity Card issued by539 [Election Commission of
India, job card issued by NREGA duly signed by an officer of
the State Government, the letter issued by the Unique
Identification Authority of India540 [or the National Population
Register] containing details of name, address and Aadhaar
number or any other document as notified by the Central
Government in consultation with the [Regulator];”Rule 9(4) required the submission to the reporting entity, where the client is an
individual, a certified copy of an officially valid document containing details of
identity and address. Rule 9(4) read as follows :
“(4) Where the client is an individual, he shall for the purpose
of sub-rule (1), submit to the reporting entity, one certified539 Substituted by G.S.R. 980(E), dated 16-12-2010 (w.e.f. 16-12-2010)
540 Inserted by G.S.R. 544(E)404
PART Icopy of an “officially valid document” containing details of his
identity and address, one recent photograph and such other
documents including in respect of the nature of business and
financial status of the client as may be required by the
reporting entity:”Under Rule 9(14), the regulator was empowered to issue guidelines, in terms
of the provisions of the rule, and to prescribe enhanced or simplified measures
to verify the identity of a client, taking into consideration the type of client,
business relationship, and the nature and value of transactions based on the
overall money-laundering and terrorist financing risks involved. Under the
above rules there were six ‘officially valid documents’ : the passport, driving
licence, Permanent Account Number (PAN) Card, NREGA job card, Voter’s
Identity Card and a letter of UIDAI containing details of name, address and
details of Aadhaar number. or any other document notified by the Central
Government in consultation with the Regulator.
293 In the Master Circular issued by the Reserve Bank of India on 25
February 2016, a provision was made for the submission by customers, at
their option, of one of the six officially valid documents (OVDs) for proof of
identity and address. Rule 3(vi) defined the expression ‘officially valid
document’ in similar terms:
“(vi) “officially valid document” means the passport, the
driving licence, the Permanent Account Number (PAN) Card,
the Voter’s Identity Card issued by the Election Commission
of India, job card issued by NREGA duly signed by an officer
of the State Government, letter issued by the Unique
Identification Authority of India containing details of name,
address and Aadhaar number.405
PART I
Explanation: Customers, at their option, shall submit one of
the six OVDs for proof of identity and proof of address.”Customer due diligence and on-going due diligence were defined thus:
“Customer Due Diligence (CDD)” means indemnifying and
verifying the customer and the beneficial owner using
‘Officially Valid Documents’ as a ‘proof of identity’ and a ‘proof
of address’.“On-going Due Diligence” means regular monitoring of
transactions in accounts to ensure that they are consistent
with the customers’ profile and source of funds.”294 Chapter III of the Master Circular provided for regulated entities
(including banks) to specify a customer acceptance policy. Clause 15 of the
Master Circular inter alia specified that customers shall not be required to
furnish additional OVDs if the OVD already submitted, contained both proof of
identity and address. Chapter VI which provided for a due diligence procedure
allowed customers to submit one of the six OVDs for proof of identity and
address. Under Part V of Chapter VI, banks were required to conduct on-
going due diligence particularly in regard to large and complex transactions
above a threshold. Clause 39 of the Circular provided for a partial freezing and
closure of accounts:
“39. Partial freezing and closure of accounts
(a) Where REs are unable to comply with the CDD
requirements mentioned at Part I to V above, they shall
not open accounts, commence business relations or
perform transactions. In case of existing business
relationship which is not KYC compliant, banks shall
ordinarily take step to terminate the existing business
relationship after giving due notice.(b) As an exception to the Rule, banks shall have an option
to choose not to terminate business relationship straight
away and instead opt for a phased closure of operations
in this account as explained below:406
PART I
i. The option of ‘partial freezing’ shall be exercise
after giving due notice of three months to the
customers to comply with KYC requirements.
ii. A reminder giving a further period of three months
shall also be given.iii. Thereafter, ‘partial freezing’ shall be imposed by
allowing credits and disallowing all debits with the
freedom to close the accounts in case of the
account being KYC non-compliant after six
months of issue first notice.iv. All debits and credits from/to the accounts shall be
disallowed, in case of the account being KYC non-
compliant after six months of imposing ‘partial
freezing’,
v. The account holders shall have the option, to
revive their accounts by submitting the KYC
documents.(c) When an account is closed whether without ‘partial
freezing’ or after ‘partial freezing’, the reason for that shall
be communicated to account holder.”Chapter VIII provided for reporting requirements to the Financial Intelligence
Unit. Chapter IX dealt with compliance with requirements/obligations under
international agreements. Clause 58 of Chapter X stipulated reporting
requirements under the Foreign Account Tax Compliance Act (FATCA) and
Common Reporting Standards (CRS).
295 As a result of the amendment to the Rules brought about in 2017, Rule
9(4) mandates that in the case of a client who is an individual, who is eligible
to be enrolled for an Aadhaar number, submission of the Aadhaar number is
mandatory. Instead of furnishing an option to submit one of six OVDs,
submission of Aadhaar number alone is mandated. Where an Aadhaar
number has not been assigned, proof of an application for enrolment is
required to be submitted. Under Rule 9(15), the reporting entity at the time of
407
PART Ireceipt of an Aadhaar number is under an obligation to carry out
authentication using either the e-KYC authentication facility or the yes/no
authentication provided by UIDAI. If a client who is eligible to be enrolled for
Aadhaar and to obtain a PAN card does not submit its details while
commencing an account based relationship, there is a period of six months
reserved for submission. Those who already have accounts are required to
submit their Aadhaar numbers by a stipulated date. Failure to do so, renders
the account subject to the consequence that it shall cease to be operational
until compliance is effected.
Following the amendments to the rules, the Reserve Bank has updated its
Master Circular on 20 April 2018 to bring it into conformity with the amended
rules.
296 In deciding whether the amendment brought about in 2017 to the rules
is valid, it is necessary to bear in mind what has already been set out earlier
on the aspect of proportionality. Does the requirement of the submission or
linking of an Aadhaar number to every account- based relationship satisfy the
test of proportionality?
The state has a legitimate aim in preventing money-laundering. In fact, it is
with a view to curb and deal with money-laundering that the original version of
the Master Circular as well as its updated version impose conditions for initial
408
PART Iand on-going due diligence. The Reserve Bank has introduced several
reporting requirements including those required to comply with FATCA norms.
The existence of a legitimate state aim satisfies only one element of
proportionality. In its submissions, the Union government has dealt only with
legitimate aim, leaving the other elements of proportionality unanswered.
Requiring every client in an account based relationship to link the Aadhaar
number with a bank account and to impose an authentication requirement, is
excessive to the aim and object of the state. There can be no presumption
that all existing account holders as well as every individual who seeks to open
an account in future is a likely money-launderer. The type of client, the nature
of the business relationship, the nature and value of the transactions and the
terrorism and laundering risks involved may furnish a basis for distinguishing
between cases and clients. The rules also fail to make a distinction between
opening an account and operating an account. If an account has been opened
in the past, it would be on the basis of an established identity. The
consequences of the non-submission of an Aadhaar number are draconian.
Non-submission within the stipulated period will result in a consequence of the
account ceasing to be operational. A perfectly genuine customer who is
involved in no wrongdoing would be deprived of the use of the moneys and
investments reflected in the account, in violation of Article 300A of the
Constitution purely on an assumption that he or she has indulged in money-
laundering. The classification is over-inclusive: a uniform requirement of such
a nature cannot be imposed on every account based relationship irrespective
409
PART Iof the risks involved to the financial system. The account of a pensioner or of
a salaried wage earner cannot be termed with the same brush as a high net-
worth individual with cross-border inflows and outflows. Treating every
account holder with a highly intrusive norm suffers from manifest arbitrariness.
Moreover, there is no specific provision in the Act warranting a consequence
of an account holder being deprived of the moneys standing in the account,
even if for a temporary period. Section 12(1)(c) empowers a reporting entity
to verify the entity or its client in such a manner and “subject to such
conditions” as may be prescribed. This does not envisage a consequence of
an account ceasing to be operational. Blocking an account is a deprivation of
property under Article 300A. The Union Government has been unable to
discharge the burden of establishing that this was the least intrusive means of
achieving its aim to prevent money-laundering or that its object would have
been defeated if it were not to impose the requirement of a compulsory linking
of Aadhaar numbers with all account based relationships with the reporting
entity. Money-laundering is indeed a serious matter and the Union
Government is entitled to take necessary steps including by classifying
transactions and sources which give rise to reasonable grounds for suspecting
a violation of law. But, to impose a uniform requirement of linking Aadhaar
numbers with all account based relationships is clearly disproportionate and
excessive. It fails to meet the test of proportionality and suffers from manifest
arbitrariness. While we have come to the above conclusion, we clarify that this
would not preclude the Union Government in the exercise of its rule making
410
PART Jpower and the Reserve Bank of India as the regulator to re-design the
requirements in a manner that would ensure due fulfillment of the object of
preventing money-laundering, subject to compliance with the principles of
proportionality as outlined in this judgment.
J Savings in Section 59
297 Section 59 of the Aadhaar Act provides:
“Anything done or any action taken by the Central
Government under the Resolution of the Government of India,
Planning Commission bearing notification number A-43011/02/2009-Admin. I, dated the 28th January, 2009, or by
the Department of Electronics and Information Technology
under the Cabinet Secretariat Notification bearing notification
number S.O. 2492(E), dated the 12th September, 2015, as
the case may be, shall be deemed to have been validly done
or taken under this Act.”298 The petitioners have submitted that all acts done pursuant to the
Notifications dated 28 January 2009 and 12 September 2015, under which the
Aadhaar programme was created and implemented, violate fundamental
rights and were not supported by the authority of law. It has been submitted
that the collection, storage and use of personal data by the State and private
entities, which was done in a legislative vacuum as the State failed to enact
the Aadhaar Act for six years, is now being sought to be validated by Section
59. It has been contended that since the acts done prior to the enactment of
the Aadhaar Act are in breach of fundamental rights, Section 59 is invalid.
Moreover, Section 59 does not operate to validate the collection of biometric
data prior to the enforcement of the Aadhaar Act.
411
PART JIt has been submitted that a validating law must remove the cause of invalidity
of previous acts: it would not be effective if it simply deems a legal
consequence without amending the law from which the consequence could
follow. In the present case, it has been contended, Section 59 does not create
a legal fiction where the Aadhaar Act is deemed to have been in existence
since 2009 and that it only declares a legal consequence of the acts done by
the Union since 2009.
It has also been submitted that Section 59 is invalid and unconstitutional
inasmuch as for Aadhaar enrolments done before 2016, there was neither
informed consent nor were any procedural guarantees and safeguards
provided under a legal framework. Section 59, it is contended, cannot cure the
absence of consent and other procedural safeguards, provided under the
Aadhaar Act, to the enrolments done prior to the enactment of the Act.
299 The respondents have submitted that Section 59 protects the actions
taken by the Central government. It does not contemplate the maintenance of
any data base, containing identity information, by the State governments. The
State governments, it is urged, have destroyed the biometric data collected
during Aadhaar enrolments before the Act came into force, from their server.
It has been contended that Section 59 is retrospective in nature as it states
that it shall operate from an earlier date.
412
PART JThe Respondents have relied upon the judgments of this Court in West
Ramnad Electric Distribution Co. Ltd. v State of Madras541 (“West
Ramnad”), State of Mysore v D. Achiah Chetty, Etc542 (“Chetty”), and Hari
Singh v Military Estate Officer543 (“Hari Singh”) to contend that the
legislature can, by retrospective operation, cure the invalidity of actions taken
under a law which is void for violating fundamental rights.
It has also been contended that before the advent of the Aadhaar Act, no
individual has been enrolled under compulsion, and since all enrolments were
voluntary, they cannot be considered to be in breach of Article 21 or any other
fundamental right. It is further submitted that non-adjudication of the issue of
whether collection of identity information violates the right to privacy, does not
prevent the Parliament from enacting a validating clause. Reliance has also
been placed on State of Karnataka v State of Tamil Nadu544 to submit that
Section 59 creates a deemed fiction as a result of which one has to imagine
that all actions taken under the notifications were taken under the Act.
300 Section 7 provides that the Central Government or the State
Governments may require proof of an Aadhaar number as a necessary
condition for availing a subsidy, benefit or service for which the expenditure is
incurred from the Consolidated Fund of India. Section 3 provides that the
Aadhaar number shall consist of demographic and biometric information of an
541 (1963) 2 SCR 747
542 (1969) 1 SCC 248
543 (1972) 2 SCC 239
544 (2017) 3 SCC 362413
PART Jindividual. “Biometric information”, under Section 2(g), means a photograph,
finger print, Iris scan, or such other biological attributes of an individual as
may be specified by regulations. Section 4(3) provides that an Aadhaar
number may be used as a proof of identity “for any purpose”. Section 57
authorizes a body corporate or person to use the Aadhaar number for
establishing the identity of an individual “for any purpose”. The proviso to
Section 57 provides that the use of an Aadhaar number under the Section
shall be subject to the procedure and obligations under Section 8 and Chapter
VI of the Act. Section 8 sets out the procedure for authentication. It states that
for authentication, a requesting entity shall obtain the consent of an individual
before collecting identity information and shall ensure that the identity
information is only used for submission to the Central Identities Data
Repository for authentication. It does not envisage collection of identity
information for any other purpose. Chapter VI of the Act, which deals with
protection of information, provides for security and confidentiality of identity
information collected under the Act, imposes restrictions on sharing that
information and classifies biometrics as sensitive personal information.
301 The scheme of the Aadhaar Act creates a system of identification
through authentication of biometric information and authorises the Central and
State governments to assign the task of collecting individual biometric
information for the purpose of generation of Aadhaar numbers to private
entities. The Act authorises the use of Aadhaar numbers by the Central
414
PART Jgovernment, state governments and the private entities for establishing the
identity of a resident for any purpose. The Act also contains certain
safeguards regarding storage and use of biometric information. The actions
taken before the enactment of the Aadhaar Act have to be tested upon the
touchstone of the legal framework provided under the Act.
302 Section 59 is a validating provision. It seeks to validate all the actions of
the Central Government prior to the Aadhaar Act, which were done under the
notifications of 28 January 2009 and 12 September 2015. Section 59 does not
validate actions of the state governments or of private entities. Acts
undertaken by the State governments and by private entities are not saved by
Section 59.
303 The Planning Commission’s notification dated 28 January 2009 created
UIDAI, while giving it the responsibility of laying down a plan and policies to
implement a unique identity (UID) scheme. UIDAI was only authorized to own
and operate the UID database, with a further responsibility for the updation
and maintenance of the database on an ongoing basis. Significantly, the 2009
notification did not contain any reference to the use of biometrics for the
purpose of the generation of Aadhaar numbers. The notification gave no
authority to collect biometrics. Biometrics, finger prints or iris scans were not
within its purview. There was no mention of the safeguards and measures
relating to the persons or entities who would collect biometric data, how the
415
PART Jdata would be collected and how it would be used. The website of the Press
Information Bureau of the Government of India states that, by the time
Aadhaar Act was notified by the Central government, UIDAI had generated
about 100 crore Aadhaar numbers.545 The collection of biometrics from
individuals prior to the enactment of the Aadhaar Act does not fall within the
scope of the 2009 notification. Having failed to specify finger prints and iris
scans in the notification, the validating provision does not extend to the
collection of biometric data before the Act. The 2009 notification did not
provide authority to any government department or to any entity to collect
biometrics. Since the collection of biometrics was not authorised by the 2009
notification, Section 59 of the Aadhaar Act does not validate these actions.
304 The collection of the biometrics of individuals impacts their privacy and
dignity. Informed consent is crucial to the validity of a state mandated
measure to collect biometric data. Encroachment on a fundamental right
requires the enacting of a valid law by the legislature.546 The law will be valid
only if it meets the requirements of permissible restrictions relating to each of
the fundamental rights on which there is an encroachment. Privacy animates
Part III of the Constitution.547 The invasion of any right flowing from privacy
places a heavy onus upon the State to justify its actions. Nine judges of this
545Press Information Bureau, UIDAI generates a billion (100 crore) Aadhaars A Historic Moment for India,
available at http://pib.nic.in/newsite/PrintRelease.aspx?relid138555
546A Constitution Bench of this Court in State of Madhya Pradesh v. Thakur Bharat Singh (AIR 1967 SC 1170)held: “All executive action which operates to the prejudice of any person must have the authority of law to
support it… Every Act done by the Government or by its officers must, if it is to operate to the prejudice of any
person, be supported by some legislative authority.”
547Puttaswamy, at para 272416
PART JCourt in Puttaswamy categorically held that there must be a valid law in
existence to encroach upon the right to privacy. An executive notification does
not satisfy the requirement of a valid law contemplated in Puttaswamy. A
valid law, in this case, would mean a law enacted by Parliament, which is just,
fair and reasonable. Any encroachment upon the fundamental right to privacy
cannot be sustained by an executive notification.
There is also no merit in the submission of the Respondents that prior to the
enactment of the Aadhaar Act, no individual has been enrolled under
compulsion, and since all enrolments were voluntary, these cannot be
considered to be in breach of Article 21 or any other fundamental right. The
format of the first two enrolment forms used by UIDAI, under which around 90
crore enrolments were done, had no mention of informed consent or the use
of biometrics. Hence, this submission is rejected.
Apart from the existence of a valid law which authorises an invasion of
privacy, Puttaswamy requires that the law must have adequate safeguards
for the collection and storage of personal data. Data protection, which is
intrinsic to privacy, seeks to protect the autonomy of the individual. The
judgment noted the centrality of consent in a data protection regime. The
Aadhaar Act provides certain safeguards in Section 3(2) and Section 8(3) for
the purposes of ensuring informed consent, and in terms of Section 29 read
with Chapter VII in the form of penalties. The safeguards provided under the
417
PART JAct were not in existence before the enactment of the Act. The collection of
biometrics after the 2009 notification and prior to the Aadhaar Act suffers from
the absence of adequate safeguards. While a legislature has the power to
legislate retrospectively, it cannot retrospectively create a deeming fiction
about the existence of safeguards in the past to justify an encroachment on a
fundamental right. At the time when the enrolments took place prior to the
enactment of the Aadhaar Act in September 2016, there was an absence of
adequate safeguards. Section 59 cannot by a deeming fiction, as it were,
extend the safeguards provided under the Act to the enrolments done earlier.
This will be impermissible simply because the informed consent of those
individuals, whose Aadhaar numbers were generated in that period cannot be
retrospectively legislated by an assumption of law. Moreover, it is a principle
of criminal law that it cannot be applied retrospectively to acts which were not
offences at the time when they took place. Article 20(1) of the Constitution
provides that “No person shall be convicted of any offence except for violation
of the law in force at the time of the commission of the act charged as an
offence”. The application of the criminal provisions of the Act, provided under
Chapter VII of the Act which deals with “Offences and Penalties”, cannot be
extended to the period prior to the enactment of the Aadhaar Act.
305 The Respondents submit that the collection of biometrics prior to the
Aadhaar Act was adequately safeguarded by the provisions of the Information
418
PART JTechnology Act 2000; specifically those provisions, which were inserted or
amended by the Information Technology (Amendment) Act, 2008.
Section 43A of the Act provides for compensation for failure to protect data:
“Where a body corporate, possessing, dealing or handling
any sensitive personal data or information in a computer
resource which it owns, controls or operates, is negligent in
implementing and maintaining reasonable security practices
and procedures and thereby causes wrongful loss or wrongful
gain to any person, such body corporate shall be liable to pay
damages by way of compensation to the person so affected.Explanation: For the purposes of this section,-
(i) “body corporate” means any company and includes a firm,
sole proprietorship or other association of individuals
engaged in commercial or professional activities;(ii) “reasonable security practices and procedures” means
security practices and procedures designed to protect such
information from unauthorised access, damage, use,
modification, disclosure or impairment, as may be specified in
an agreement between the parties or as may be specified in
any law for the time being in force and in the absence of such
agreement or any law, such reasonable security practices
and procedures, as may be prescribed by the Central
Government in consultation with such professional bodies or
associations as it may deem fit.(iii) “sensitive personal data or information” means such
personal information as may be prescribed by the Central
Government in consultation with such professional
bodies or associations as it may deem fit.”
(Emphasis supplied)306 Rule 3 of the Information Technology (Reasonable Security Practices
and Procedures and Sensitive Personal Data or Information) Rules, 2011
made by the Central government under Section 43A, defines “sensitive
personal data or information”:
“Sensitive personal data or information of a person means
such personal information which consists of information
relating to;—(i) password;
419
PART J
(ii) financial information such as Bank account or credit
card or debit card or other payment instrument details ;(iii) physical, physiological and mental health condition;
(iv) sexual orientation;
(v) medical records and history;
(vi) Biometric information;(vii) any detail relating to the above clauses as provided to
body corporate for providing service; and(viii) any of the information received under above clauses
by body corporate for processing, stored or processed under
lawful contract or otherwise.Provided that, any information that is freely available or
accessible in public domain or furnished under the Right to
Information Act, 2005 or any other law for the time being in
force shall not be regarded as sensitive personal data or
information for the purposes of these rules.”Section 66C provides a punishment for identity theft:
“66C. Punishment for identity theft.-
Whoever, fraudulently548 or dishonestly549 make use of the
electronic signature, password or any other unique
identification feature of any other person, shall be punished
with imprisonment of either description for a term which may
extend to three years and shall also be liable to fine which
may extend to rupees one lakh.” (Emphasis supplied)Section 66E provides for punishment for the violation of the privacy of an
individual:
“Whoever, intentionally or knowingly captures, publishes or
transmits the image of a private area of any person without
his or her consent, under circumstances violating the privacy
of that person, shall be punished with imprisonment which
may extend to three years or with fine not exceeding two lakh
rupees, or with both.”The explanation to the Section provides that “transmit” means to electronically
send a visual image with the intent that it be viewed by a person or persons.
548Section 25, Indian Penal Code states: ““Fraudulently”.—A person is said to do a thing fraudulently if he does
that thing with intent to defraud but not otherwise”
549Section 24, Indian Penal Code states: ““Dishonestly”- Whoever does anything with the intention of causingwrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”
420
PART J“Capture”, with respect to an image, has been defined to mean videotaping,
photographing, filming or recording by any means. “Private area” means the
“naked or undergarment clad genitals, pubic area, buttocks or female breast.”
“Publishes” has been defined as reproduction in the printed or electronic form
and making it available for public.
Section 72A provides for punishment for disclosure of information in breach of
a lawful contract:
“Save as otherwise provided in this Act or any other law for
the time being in force, any person including an intermediary
who, while providing services under the terms of lawful
contract, has secured access to any material containing
personal information about another person, with the intent to
cause or knowing that he is likely to cause wrongful loss or
wrongful gain discloses, without the consent of the person
concerned, or in breach of a lawful contract, such material to
any other person shall be punished with imprisonment for a
term which may extend to three years, or with a fine which
may extend to five lakh rupees, or with both.” (Emphasis
supplied)Section 43A applies only to bodies corporate and has no application to
government or to its departments. Explanation (i) defines body corporate to
mean any company and to include a firm, sole proprietorship or other
association of individuals engaged in professional or commercial activities.
Personal information leaked or lost by government agencies will not be
covered under Section 43A. The scope of Section 66E is limited. It only deals
with the privacy of the “private area” of any person. It does not deal with
informational privacy. The scope of Section 72A is also limited. It only
penalises acts of disclosing personal information about a person obtained
421
PART Jwhile providing services under a lawful contract. Section 66C deals with
identity theft and punishes the dishonest or fraudulent use of the unique
identification feature of a person. The Information Technology Act also does
not penalise unauthorised access to the Central Identities Data Repository.
Many of the safeguards which were introduced by the Aadhaar Act were not
comprehended in the provisions of the Information Technology Act. Indeed, it
was the absence of those safeguards in the Information Technology Act which
required their introduction in the Aadhaar Act. Hence, the Attorney General is
not correct in submitting that India operated under a regime of comprehensive
safeguards governing biometric data during the period when the Aadhaar
project was governed by an executive notification, in the absence of a
legislative framework. The absence of a legislative framework rendered the
collection of biometric data vulnerable to serious violations of privacy. There
are two distinct facets here. First, the absence of a legislative framework for
the Aadhaar project between 2009 and 2016 left the biometric data of millions
of Indian citizens bereft of the kind of protection which a law, as envisaged in
Puttaswamy, must provide to comprehensively protect and enforce the right
to privacy. Second, the notification of 2009 does not authorise the collection of
biometric data. Consequently, the validation of actions taken under the 2009
notification by Section 59 does not save the collection of biometric data prior
to the enforcement of the Act. Privacy is of paramount importance. No
invasion of privacy can be allowed without proper, adequate and stringent
422
PART Jsafeguards providing not only penalties for misuse or loss of one’s personal
information, but also for protection of that person.
307 The Respondents have relied upon several judgments where this Court
has upheld validating statutes, which, they contend, are similar to Section 59.
The first decision which needs to be discussed is the judgment of the
Constitution Bench in West Ramnad, which dealt with a validating statute of
the Madras Legislature. Act 43 of 1949 of the Madras Legislature which
sought to acquire electricity undertakings in the state was struck down for
want of legislative competence. In the meantime, the Constitution came into
force, and under the Seventh Schedule, the State acquired legislative
competence. A fresh law was enacted in 1954. Section 24 sought to validate
actions done and taken under the 1949 Act. Section 24 provided thus:
“Orders made, decisions or directions given, notifications
issued, proceedings taken and acts or things done, in relation
to any undertaking taken over, if they would have been
validly made, given, issued, taken or done, had the
Madras Electricity Supply Undertakings (Acquisition) Act
1949 (Madras Act 43 of 1949), and the rules made
thereunder been in force on the date on which the said
orders, decisions or directions, notifications, proceeding, acts
or things were made, given, issued, taken or done are hereby
declared to have been validly made, given, issued, taken
or done, as the case may be, except to the extent to
which the said orders, decisions, directions,
notifications, proceedings, acts or things are repugnant
to the provisions of this Act.” (Emphasis supplied)Section 24 was held to be a provision, which saved and validated actions
validly taken under the provisions of the earlier Act, which was invalid from the
423
PART Jinception. Justice Gajendragadkar, speaking for the Court, interpreted Section
24 thus:
“12. The first part of the section deals, inter alia, with
notifications which have been validly issued under the
relevant provisions of the earlier Act and it means that if
the earlier Act had been valid at the relevant time, it ought to
appear that the notifications in question could have been and
had in fact been made properly under the said Act. In other
words, before any notification can claim the benefit of
Section 24, it must be shown that it was issued properly
under the relevant provisions of the earlier Act, assuming
that the said provisions were themselves valid and in
force at that time. The second part of the section provides
that the notifications covered by the first part are declared by
this Act to have been validly issued; the expression “hereby
declared” clearly means “declared by this Act” and that shows
that the notifications covered by the first part would be treated
as issued under the relevant provisions of the Act and would
be treated as validly issued under the said provisions. The
third part of the section provides that the statutory declaration
about the validity of the issue of the notification would be
subject to this exception that the said notification should not
be inconsistent with or repugnant to the provisions of the Act.In other words, the effect of this section is that if a
notification had been issued properly under the
provisions of the earlier Act and its validity could not
have been impeached if the said provisions were
themselves valid, it would be deemed to have been
validly issued under the provisions of the Act, provided,
of course, it is not inconsistent with the other provisions
of the Act. The section is not very happily worded, but on its
fair and reasonable construction, there can be no doubt about
its meaning or effect.” (Emphasis supplied)308 The second decision is a four judge Bench judgment in Chetty, which
dealt with the competence of a legislature to remedy a discriminatory
procedure retrospectively. There were two Acts in Mysore for acquisition of
private land for public purposes − the Mysore Land Acquisition Act, 1894 and
the City of Bangalore Improvement Act, 1945. The respondent challenged a
notification which was issued under the 1894 Act for the acquisition of his land
424
PART Jin Bangalore, on the ground that recourse to the provisions of the Land
Acquisition Act was discriminatory because in other cases the provisions of
the Improvement Act were applied. The High Court accepted the contention,
against which there was an appeal to this Court. During the pendency of the
appeal, the Bangalore Acquisition of Lands (Validation) Act, 1962 was
passed. The 1962 Act contained two provisions. Section 2 provided:
“2. Validation of certain acquisition of lands and proceedings
and orders connected therewith.-(1) Notwithstanding anything contained in the City of
Bangalore Improvement Act, 1945 (Mysore Act 5 of 1945),
or in any other law, or in any judgment, decree or order of
any court:(a) every acquisition of land for the purpose of
improvement, expansion or development of the City of
Bangalore or any area to which the City of Bangalore
Improvement Act, 1945, extends, made by the State
Government acting or purporting to act under the
Mysore Land Acquisition Act, 1894 (Mysore Act 7 of
1894), at any time before the commencement of this
Act, and every proceeding held, notification issued and
order made in connection with the acquisition of land for
the said purpose shall be deemed for all purposes to
have been validly made, held to issue, as the case
may be, and any acquisition proceeding
commenced under the Mysore Land Acquisition
Act, 1894, for the said purpose before the
commencement of this Act but not concluded before
such commencement, may be continued under the
Land Acquisition Act, 1894 (Central Act 1 of 1894), as
extended to the State of Mysore by the Land Acquisition
(Mysore Extension and Amendment) Act, 1961, and
accordingly no acquisition so made, no proceeding
held, no notification issued and no order made by the
State Government or by any authority under the Mysore
Land Acquisition Act, 1894, or the Land Acquisition Act,
1894, in connection with any such acquisition shall be
called in question on the ground that the State
Government was not competent to make acquisition of
land for the said purpose under the said Act or on any
other ground whatsoever;(b) any land to the acquisition of which the provisions of
clause (a) are applicable shall, after it has vested in the
State Government, be deemed to have been425
PART Jtransferred, or stand transferred, as the case may be, to
the Board of Trustees for the improvement of the City of
Bangalore.” (Emphasis supplied)The Act of 1962 validated all acquisitions made, proceedings held,
notifications issued or orders made under the Mysore Land Acquisition Act
before the validating law came into force. The Validation Act was challenged
on the ground that it was discriminatory to provide two Acts which prescribed
two different procedures under the acquisition laws in the same field. This
Court found that the legislature retrospectively made a single law for the
acquisition of properties and upheld the validating Act. It was held:
“15. If two procedures exist and one is followed and the other
discarded, there may in a given case be found discrimination.But the Legislature has still the competence to put out of
action retrospectively one of the procedures leaving one
procedure only available, namely, the one followed and thus
to make disappear the discrimination. In this way a Validating
Act can get over discrimination. Where, however, the
legislative competence is not available, the discrimination
must remain for ever, since that discrimination can only be
removed by a legislature having power to create a single
procedure out of two and not by a legislature which has not
that power.”309 In West Ramnad, the validation depended upon the condition that a
notification or act ought to have been validly issued or done under the earlier
statute, presuming that the earlier Act was itself valid at that time. In the
present case, there was no earlier law governing the actions of the
government for the collection of biometric data. The Aadhaar Act was notified
in 2016. The Planning Commission’s notification of 2009 and the Ministry of
Information and Technology’s notification of 2015 were not issued under any
426
PART Jstatute. Therefore, the validating law in West Ramnad was clearly of a
distinct genre. West Ramnad will be of no assistance to the Union of India.
310 The decision in Chetty in fact brings out the essential attributes of a
validating law. The existence of two legislations governing the field of land
acquisition had been found to be discriminatory and hence violative of Article
14 by the High Court (on the basis of the position in law as it then stood).
During the pendency of the appeal before this Court, the legislature enacted a
validating law which removed the cause for invalidity. The reason the state
law had been invalidated by the High Court was the existence of two laws
governing the same field. This defect was removed. To use the words of this
Court, the legislature “put out of action retrospectively one of the procedures”
as a result of which only one procedure was left in the field. The decision in
Chetty thus brings out the true nature of a validating law. A validating law
essentially removes the deficiency which is found to exist in the earlier
enactment. By curing the defect, it validates actions taken under a previous
enactment.
311 The third judgment of seven judges is in Hari Singh. The
constitutionality of the Public Premises (Eviction of Unauthorised Occupants)
Act, 1958 was challenged on the ground that Section 5(1) contravened Article
14. Section 5(1) conferred power on the Estate Officer to make an order of
eviction against persons who were in unauthorised occupation of public
427
PART Jpremises. During the pendency of the appeal before this Court, the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 was enacted, which
validated all actions taken under the Act of 1958. The constitutional validity of
the 1971 Act was also challenged. Section 20 of the later Act provided:
“Notwithstanding any judgment, decree or order of any court,
anything done or any action taken (including rules or
orders made, notices issued, evictions ordered or effected,
damages assessed, rents or damages or costs recovered and
proceedings initiated) or purported to have been done or
taken under the Public Premises (Eviction of
Unauthorised Occupants) Act, 1958 shall be deemed to
be as valid and effective as if such thing or action was
done or taken under the corresponding provisions of this
Act which, under Sub-section (3) of Section 1 shall be
deemed to have come into force on the 16th day of
September, 1958 ...” (Emphasis supplied)The Court held that the legislature has the power to validate actions under an
earlier law by removing its infirmities. In that case, validation was achieved by
enacting the 1971 Act with retrospective effect from 1958 and legislating that
actions taken under the earlier law will be deemed to be as valid and effective
as if they were taken under the 1971 Act. The Court held:
“24. The 1958 Act has not been declared by this Court to be
unconstitutional… The arguments on behalf of the appellants
therefore proceeded on the footing that the 1958 Act will be
presumed to be unconstitutional. It was therefore said that the
1971 Act could not validate actions done under the 1958 Act.The answer is for the reasons indicated above that the
Legislature was competent to enact this legislation in 1958
and the Legislature by the 1971 Act has given the legislation
full retrospective operation. The Legislature has power to
validate actions under an earlier Act by removing the
infirmities of the earlier Act. The 1971 Act has achieved that
object of validation.”428
PART JThe Court approved the Constitution Bench decision in West Ramnad:
“16. The ruling of this Court in West Ramnad Electric
Distribution Co. Ltd. case establishes competence of the
legislature to make laws retrospective in operation for the
purpose of validation of action done under an earlier Act
which has been declared by a decision of the court to be
invalid. It is to be appreciated that the validation is by virtue of
the provisions of the subsequent piece of legislation.”In Hari Singh, the validating Act retrospectively authorised the actions
undertaken under the previous Act, which had been invalidated by a court
decision. The validating law of 1971 was enacted with retrospective effect
from 1958.
312 Reliance was placed by the Respondents on the judgments of this
Court in Jaora Sugar Mills (P) Ltd. v State of Madhya Pradesh550 (Jaora
Sugar Mills), SKG Sugar Ltd. v State of Bihar551 (“SKG Sugar”) and
Krishna Chandra Gangopadhyaya v Union of India552 (“Krishna
Chandra”), to contend that in the case of fiscal legislation, where an
enactment was struck down for violating Article 265 or the fundamental
rights, of a citizen, validating Acts were enacted after removing the flaw and
that in cases where the state Legislature was held to be incompetent to enact
a taxing measure, a validating law was enacted by Parliament by making a
substantive provision.
550 (1966) 1 SCR 523
551 (1974) 4 SCC 827
552 (1975) 2 SCC 302429
PART J313 In Jaora Sugar Mills, a state law imposing cess was struck down for
want of legislative competence. Parliament enacted the Sugarcane Cess
(Validation) Act, 1961 to validate the imposition of cess under the invalidated
state law. Section 3(1) of the 1961 Act provided:
“12…Notwithstanding any judgment, decree or order of any
Court, all cesses imposed, assessed or collected or
purporting to have been imposed, assessed or collected
under any State Act before the commencement of this act
shall be deemed to have been validly imposed, assessed
or collected in accordance with law, as if the provisions of
the State Acts and of all notifications, orders and rules
issued or made thereunder, in so far as such provisions relate
to the imposition, assessment and collection of such cess had
been included in and formed part of this section and this
section had been in force at all material times when such
cess was imposed, assessed or collected; ….”
(Emphasis supplied)The Section was upheld. Speaking for the Constitution Bench, Chief Justice
Gajendragadkar held:
“14... What Parliament has done by enacting the said section
is not to validate the invalid State Statutes, but to make a law
concerning the cess covered by the said Statutes and to
provide that the said law shall come into operation
retrospectively. There is a radical difference between the
two positions. Where the legislature wants to validate an
earlier Act which has been declared to be invalid for one
reason or another, it proceeds to remove the infirmity from the
said Act and validates its provisions which are free from any
infirmity.” (Emphasis supplied)The state law was held to be invalid for want of legislative competence.
Parliament, which was competent to enact a law on the subject, did so with
retrospective effect and validated actions which were taken under the invalid
state law.
430
PART J
314 In SKG Sugar, a state law - Bihar Sugar Factories Control Act, 1937 -
was declared unconstitutional. In 1969, during President's Rule in Bihar,
Parliament enacted the Bihar Sugarcane (Regulation of Supply and
Purchase) Act, 1969. Section 66(1) of the Act provided:
“12…Notwithstanding any judgment, decree or order of any
court, all cesses and taxes imposed, assessed or collected
or purporting to have been imposed, assessed or collected
under any State law, before the commencement of this Act,
shall be deemed to have been validly imposed, assessed
or collected in accordance with law as if this Act had been
in force at all material times when such cess or tax was
imposed, assessed or collected and accordingly....” 553
(Emphasis supplied)The Constitution Bench held:
“32… By virtue of the legal fiction introduced by the validating
provision in Section 66(1), the impugned notification will be
deemed to have been issued not necessarily under the
Ordinance No. 3 of 1968 but under the President's Act, itself,
deriving its legal force and validity directly from the latter.”554315 In Krishna Chandra, provisions of the Bihar Land Reforms Act, 1950
were struck down for want of legislative competence. Parliament enacted the
Mines and Minerals (Regulation and Development) Act, 1957 to validate those
provisions with retrospective effect. Section 2 provided that:
“1…(2). Validation of certain Bihar State laws and action
taken and things done connected therewith.-
(1) The laws specified in the schedule shall be and shall
be deemed always to have been, as valid as if the
provisions contained therein had been enacted by
Parliament.(2) Notwithstanding any judgment, decree or order of any
court, all actions taken, things done, rules made,
notifications issued or purported to have been taken, done,553 Ibid, at page 831
554 Ibid, at page 835431
PART Jmade or issued and rents or royalties realised under any
such laws shall be deemed to have been validly taken,
done, made, issued or realised, as the case may be, as if this
section had been in force at all material times when such
action was taken, things were done, rules were, made,
notifications were issued, or rents or royalties were realised,
and no suit or other proceedings shall be maintained or
continued in any court for the refund of rents or royalties
realised under any such laws.(3) For the removal of doubts, it is hereby declared that
nothing in Sub-section (2) shall be construed as preventing
any person from claiming refund of any rents or royalties paid
by him in excess of the amount due from him under any such
laws.”555 (Emphasis supplied)The central issue in the case was whether a statute and a rule earlier
declared to be unconstitutional or invalid, can be retroactively enacted through
fresh validating legislation by the competent Legislature. The Court held that it
could be.
316 Section 59 of the Aadhaar Act is different from the validating provisions
in Jaora Sugar Mills, SKG Sugar and Krishna Chandra. In those cases,
state laws were invalid for want of legislative competence. Parliament, which
undoubtedly possessed legislative competence, could enact a fresh law with
retrospective effect and protect actions taken under the state law. The
infirmity being that the earlier laws were void for absence of competence in
the legislature, the fresh laws cured the defect of the absence of legislative
competence.
555 Ibid, at page 306
432
PART J317 Parliament and the State Legislatures have plenary power to legislate
on subjects which fall within their legislative competence. The power is
plenary because the legislature can legislate with prospective as well as with
retrospective effect. Where a law suffers from a defect or has been
invalidated, it is open to the legislature to remove the defect. While doing that,
the legislature can validate administrative acts or decisions made under the
invalid law in the past. The true test of a validation is that it must remove the
defects in the earlier law. It is not enough for the validating law to state that
the grounds of invalidity of the earlier law are deemed to have been removed.
The validating law must remove the deficiencies. There were several
deficiencies in the collection of biometric data during the period between 2009
and 2016, before the Aadhaar Act came into force. The first was the absence
of enabling legislation. As a result, the collection of sensitive personal
information took place without the authority of law. Second, the notification of
2009 did not authorize the collection of biometric data. Third, the collection of
biometric data was without an enabling framework of the nature which the
Aadhaar Act put into place with effect from 2016. The Aadhaar Act introduced
a regime for obtaining informed consent, securing the confidentiality of
information collected from citizens, penalties and offences for breach and
regulated the uses to which the data which was collected could be put. In the
absence of safeguards, the collection of biometric data prior of the enactment
of Aadhaar Act 2016 is ultra vires.
433
PART J318 Section 59 does not remove the cause for invalidity. First, Section 59
protects actions taken under the notification of 2009. The notification does not
authorize the collection of biometric data. Hence, Section 59 would not
provide legal authority for the collection of biometrics between 2009 and 2016.
Second, it was through the Aadhaar Act, that safeguards were sought to be
introduced for ensuring informed consent, confidentiality of information
collected, restrictions on the use of the data and through a regime of penalties
and offences for violation. Section 59 does not cure the absence of these
safeguards between 2009 and 2016. Section 59 fails to meet the test of a
validating law for the simple reason that the absence of safeguards and of a
regulatory framework is not cured merely by validating what was done under
the notifications of 2009 and 2016. There can be no dispute about the
principle that the legislature is entitled to cure the violation of a fundamental
right. But in order to do so, it is necessary to cure the basis or the foundation
on which there was a violation of the fundamental right. The deficiency must
be demonstrated to be cured by the validating law. Section 59 evidently fails
to do so. It fails to remedy the deficiencies in regard to the conditions under
which the collection of biometric data took place before the enforcement of the
Aadhaar Act in 2016.
The Respondents submitted that Section 59 creates a deemed fiction and
cited a few judgments in support of this contention. In Bishambhar Nath
434
PART JKohli v State of Uttar Pradesh556, an Ordinance repealed another
Ordinance. Section 58(3) of the repealing Ordinance stated:
“6…The repeal by this Act of the Administration of Evacuee
Property Ordinance, 1949 or the Hyderabad Administration of
Evacuee Property Regulation or of any corresponding law
shall not affect the previous operation of that Ordinance,
Regulation or corresponding law, and subject thereto,
anything done or any action taken in the exercise of any
power conferred by or under that Ordinance, Regulation
or corresponding law, shall be deemed to have been
done or taken in the exercise of the powers conferred by
or under this Act as if this Act were in force on the day
on which such thing was done or action was taken.”
(Emphasis supplied)319 A Constitution Bench of this Court held that by virtue of Section 58, all
things done and actions taken under the repealed ordinance are deemed to
be done or taken in exercise of the powers conferred by the repealing Act, as
if that Act were in force on the day on which that thing was done or action was
taken. The things done or actions taken under the repealed ordinance are to
be deemed by fiction to have been done or taken under the repealing Act. The
actions were validated because the Act, in this case, was deemed to be “in
force on the day on which such thing was done or action was taken”. Section
59 of the Aadhaar Act does not create this fiction. The Aadhaar Act does not
come in force on the date on which the actions, which this Section seeks to
validate, were taken.
320 A three judge Bench headed by one of us, Hon’ble Mr Justice Dipak
Misra (as the learned Chief Justice then was) in State of Karnataka v State
556 (1966) 2 SCR 158
435
PART Jof Tamil Nadu557, was dealing with a batch of civil appeals filed against a final
order of the Cauvery Water Disputes Tribunal constituted under the Inter-
State River Water Disputes Act, 1956. Section 6(2) of the 1956 Act provides:
“72…6(2).The decision of the Tribunal, after its publication in
the Official Gazette by the Central Government under Sub-section (1), shall have the same force as an order or decree
of the Supreme Court.”558Relying on Section 6(2), it was contended that the jurisdiction of this Court is
ousted as it cannot sit in appeal on its own decree. The Court did not accept
the submission and held:
“74. The language employed in Section 6(2) suggests that the
decision of the tribunal shall have the same force as the order
or decree of this Court. There is a distinction between having
the same force as an order or decree of this Court and
passing of a decree by this Court after due adjudication. The
Parliament has intentionally used the words from which it can
be construed that a legal fiction is meant to serve the purpose
for which the fiction has been created and not intended to
travel beyond it. The purpose is to have the binding effect of
the tribunal's award and the effectiveness of enforceability.
Thus, it has to be narrowly construed regard being had to the
purpose it is meant to serve…55981…it is clear as crystal that the Parliament did not intend to
create any kind of embargo on the jurisdiction of this Court.The said provision was inserted to give the binding effect to
the award passed by the tribunal. The fiction has been
created for that limited purpose.”560 (Emphasis supplied)The judgment makes it clear that a deeming fiction cannot travel beyond what
was originally intended. As stated earlier, the action of collecting and
authentication of biometrics or the requirement of informed consent finds no
557 (2017) 3 SCC 362
558 Ibid, at page 405
559 Ibid, at page 406
560 Ibid, at page 408436
PART Jmention in the 2009 notification. Therefore, Section 59 cannot be held to
create a deeming fiction that all the actions taken under the notifications
issued were done under the Act and not under the aforesaid notifications.
321 This Court must also deal with the Respondents’ submission that
Parliament is not debarred from enacting a validation law even though the
Court did not have the opportunity to rule on the validity of the notifications
which are purported by Section 59 to have been validated. The Respondents
have placed reliance on a two judge Bench decision in Amarendra Kumar
Mohapatra v State of Orissa.561 This case involved a challenge to the
constitutional validity of the Orissa Service of Engineers (Validation of
Appointment) Act, 2002 enacted to regularise ad hoc appointments of
employees. The issue before the Court was whether the Orissa Act was in
effect a validation statute to validate any illegality or defect in a pre-existing
Act or rule in existence. The Court held that since the Orissa Act merely
regularised the appointment of graduate Stipendiary Engineers working as ad
hoc Assistant Engineers as Assistant Engineers, it could not be described as
a validating law. It was held the legislation did not validate any such non-
existent act, but simply appointed the ad hoc Assistant Engineers as
substantive employees of the State by resort to a fiction. This Court held:
“31…a prior judicial pronouncement declaring an act,
proceedings or rule to be invalid is not a condition precedent
for the enactment of a Validation Act. Such a piece of
legislation may be enacted to remove even a perceived
invalidity, which the Court has had no opportunity to adjudge.561 (2014) 4 SCC 583
437
PART JAbsence of a judicial pronouncement is not, therefore, of
much significance for determining whether or not the
legislation is a validating law.”562The Court further held that:
“25. … when the validity of any such Validation Act is called in
question, the Court would have to carefully examine the
law and determine whether (i) the vice of invalidity that
rendered the act, rule, proceedings or action invalid has
been cured by the validating legislation (ii) whether the
legislature was competent to validate the act, action,
proceedings or rule declared invalid in the previous
judgments and (iii) whether such validation is consistent
with the rights guaranteed by Part III of the Constitution.It is only when the answer to all these three questions is in
the affirmative that the Validation Act can be held to be
effective and the consequences flowing from the adverse
pronouncement of the Court held to have been neutralised.”
(Emphasis supplied)322 The two judge Bench relied upon the Constitution Bench decision of
this Court in Shri Prithvi Cotton Mills Ltd v Broach Borough
Municipality563 to formulate the following pre-requisites of a piece of
legislation that purports to validate any act, rule, action or proceedings:
“(a) The legislature enacting the Validation Act should be
competent to enact the law and;(b) the cause for ineffectiveness or invalidity of the Act or the
proceedings needs to be removed.”These judgments suggest that while there can be no disagreement with the
proposition that a legislature has the power, within its competence, to make a
law to validate a defective law, the validity of such a law would depend upon
whether it removes the cause of ineffectiveness or invalidity of the previous
562 Ibid, at page 604
563 (1969) 2 SCC 283438
PART KAct or proceedings. Parliament has the power to enact a law of validation to
cure an illegality or defect in the pre-existing law, with or without a judicial
determination. But that law should cure the cause of infirmity or invalidity.
Section 59 fails to cure the cause of invalidity prior to the enactment of the
Aadhaar Act.
K Rule of law and violation of interim orders
323 The rule of law is the cornerstone of modern democratic societies and
protects the foundational values of a democracy. When the rule of law is
interpreted as a principle of constitutionalism, it assumes a division of
governmental powers or functions that inhibits the exercise of arbitrary State
power. It also assumes the generality of law: the individual's protection from
arbitrary power consists in the fact that her personal dealings with the State
are regulated by general rules, binding on private citizens and public officials
alike.564
It envisages a fundamental separation of powers among different organs of
the State. Separation of power supports the accountability aspect of the rule of
law. Separation of the judicial and executive powers is an essential feature of
the rule of law. By entrusting the power of judicial review to courts, the
doctrine prevents government officials from having the last word on whether
564T. R. S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law
(2001), available atchapter-2
439
PART Kthey have acted illegally. The separation of judicial power provides an
effective check on the executive branch.565
324 The concepts of the rule of law and separation of powers have been
integral to Indian constitutional discourse. While both these concepts have not
been specified in as many words in the Constitution, they have received
immense attention from this Court in its judgments. Though the Indian
Constitution does not follow the doctrine of separation of powers in a rigid
sense, the following statement of the law by Chief Justice Mukherjea in Ram
Sahib Ram Jawaya Kapur v State of Punjab566 is widely regarded as
defining the core of its content:
“12…The Indian Constitution has not indeed recognised the
doctrine of separation of powers in its absolute rigidity but the
functions of the different parts or branches of the Government
have been sufficiently differentiated and consequently it can
very well be said that our Constitution does not contemplate
assumption, by one organ or part of the State, of functions
that essentially belong to another...”Separation of powers envisages a system of checks and balances, which
ensures governance by law and not by the caprice of those to whom
governance is entrusted for the time being. By curbing excesses of power, it
has a direct link with the preservation of institutional rectitude and individual
liberty. In S G Jaisinghani v Union of India567, this Court held that:
“14. In this context it is important to emphasize that the
absence of arbitrary power is the first essential of the rule of565Denise Meyerson, The Rule of Law and the Separation of Powers (2004), available at
http://www5.austlii.edu.au/au/journals/MqLJ/2004/1.html
566 (1955) 2 SCR 225
567 (1967) 2 SCR 703440
PART Klaw upon which our whole constitutional system is based. In a
system governed by rule of law, discretion, when conferred
upon executive authorities, must be confined within clearly
defined limits. The rule of law from this point of view means
that decisions should be made by the application of known
principles and rules and, in general, such decisions should be
predictable and the citizen should know where he is. If a
decision is taken without any principle or without any rule it is
unpredictable and such a decision is the antithesis of a
decision taken in accordance with the Rule of law…”The separation of powers between the legislature, the executive and the
judiciary has been declared to be part of the basic structure of the
Constitution. In Kesavananda Bharati v State of Kerala568, Chief Justice
Sikri held that:
“292…The basic structure may be said to consist of the
following features:(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the
executive and the judiciary;(5) Federal character of the Constitution.”569
(Emphasis supplied)Justice HR Khanna held that the rule of law meant “supremacy of the
Constitution and the laws as opposed to arbitrariness”570. The same view is
expressed in subsequent decisions of this Court.571 In Smt Indira Nehru
Gandhi v Shri Raj Narain572, Chief Justice AN Ray held the rule of law to be
the basis of democracy.
568 (1973) 4 SCC 225
569 Ibid, at page 366
570 Ibid, at para 1529
571Smt. Indira Nehru Gandhi v. Shri Raj Narain, 1975 (Supp.) SCC 1; State of Bihar v. Bal Mukund Sah, (2000) 4SCC 640]; I .R. Coelho (Dead) by L.Rs. v. State of Tamil Nadu, (2007) 2 SCC 1.
572 1975 Supp SCC 1441
PART KThe functional relationship between separation of powers and the rule of law
was discussed by a Constitution Bench of this Court in State of Tamil Nadu v
State of Kerala573, as follows:
“98. Indian Constitution, unlike the Constitution of United
States of America and Australia, does not have express
provision of separation of powers. However, the structure
provided in our Constitution leaves no manner of doubt that
the doctrine of separation of powers runs through the Indian
Constitution. It is for this reason that this Court has
recognized separation of power as a basic feature of the
Constitution and an essential constituent of the rule of law.The doctrine of separation of powers is, though, not expressly
engrafted in the Constitution, its sweep, operation and
visibility are apparent from the Constitution. Indian
Constitution has made demarcation without drawing formal
lines between the three organs--legislature, executive and
judiciary.”This Court has consistently held judicial review to be an essential component
of the separation of powers as well as of the rule of law. Judicial review
involves determination not only of the constitutionality of law but also of the
validity of administrative action. It protects the essence of the rule of law by
ensuring that every discretionary power vested in the executive is exercised in
a just, reasonable and fair manner.
325 In a reference574 under Article 143 of the Constitution, a seven judge
Bench held that irrespective of “whether or not there is distinct and rigid
separation of powers under the Indian Constitution”, the judicature has been
entrusted the task of construing the provisions of the Constitution and of
safeguarding the fundamental rights of citizens. It was held:
573 (2014)12 SCC 696
574 (1965) 1 SCR 413442
PART K“41…When a statute is challenged on the ground that it has
been passed by Legislature without authority, or has
otherwise unconstitutionally trespassed on fundamental
rights, it is for the courts to determine the dispute and decide
whether the law passed by the legislature is valid or not… If
the validity of any law is challenged before the courts, it is
never suggested that the material question as to whether
legislative authority has been exceeded or fundamental rights
have been contravened, can be decided by the legislatures
themselves. Adjudication of such a dispute is entrusted solely
and exclusively to the Judicature of this country…”In his celebrated dissent in Additional District Magistrate, Jabalpur v
Shivakant Shukla575, Justice HR Khanna, while referring to the rule of law as
the “antithesis of arbitrariness”, held:
“527…Rule of law is now the accepted norm of all civilised
societies... [E]verywhere it is identified with the liberty of the
individual. It seeks to maintain a balance between the
opposing notions of individual liberty and public order. In
every State the problem arises of reconciling human rights
with the requirements of public interest. Such harmonising
can only be attained by the existence of independent courts
which can hold the balance between citizen and State and
compel Governments to conform to the law.”576326 Judicial review has been held to be one of the basic features of the
Constitution. A seven judge Bench of this Court, in L Chandra Kumar v
Union of India577, declared:
“78… the power of judicial review over legislative action
vested in the High Courts under Article 226 and in the
Supreme Court under Article 32 of the Constitution is an
integral and essential feature of the Constitution, constituting
part of its basic structure.”578575 (1976) 2 SCC 521
576 Ibid, at page 748
577 (1997) 3 SCC 261
578 Ibid, at page 301443
PART KThe complementary relationship between judicial review, the rule of law and
the separation of powers is integral to working of the Constitution. This Court
in I R Coelho v State of Tamil Nadu579 held thus:
“129… Equality, rule of law, judicial review and separation of
powers form parts of the basic structure of the Constitution.
Each of these concepts are intimately connected. There can
be no rule of law, if there is no equality before the law. These
would be meaningless if the violation was not subject to the
judicial review. All these would be redundant if the legislative,
executive and judicial powers are vested in one organ.Therefore, the duty to decide whether the limits have been
transgressed has been placed on the judiciary.”580Judicial review, by protecting individual rights, promotes the foundational
values of the Constitution and the rule of law. This Court took note of this
aspect in Puttaswamy:
“295. Above all, it must be recognized that judicial review is a
powerful guarantee against legislative encroachments on life
and personal liberty. To cede this right would dilute the
importance of the protection granted to life and personal
liberty by the Constitution. Hence, while judicial review in
constitutional challenges to the validity of legislation is
exercised with a conscious regard for the presumption of
constitutionality and for the separation of powers between the
legislative, executive and judicial institutions, the
constitutional power which is vested in the Court must be
retained as a vibrant means of protecting the lives and
freedoms of individuals.”581327 Constitutional adjudication facilitates answers to the silences of the
Constitution. The task of interpretation is to foster the spirit of the Constitution
as much as its text. This role has exclusively been conferred on the Supreme
Court and the High Courts to ensure that its values are not diminished by the
579 (2007) 2 SCC 1
580 Ibid, at page 58
581 Ibid, at page 497444
PART Klegislature or the executive. Our Court has been conscious of this role. In
Krishna Kumar Singh v State of Bihar582, while dealing with the question
whether an ordinance (promulgated by the Governor) which has a limited life
can bring about consequences for the future (in terms of the creation of rights,
privileges, liabilities and obligations) which will enure beyond its life, a seven
judge Bench held that:
“91…The silences of the Constitution must be imbued
with substantive content by infusing them with a
meaning which enhances the Rule of law. To attribute to
the executive as an incident of the power to frame
ordinances, an unrestricted ability to create binding effects for
posterity would set a dangerous precedent in a parliamentary
democracy. The court's interpretation of the power to frame
ordinances, which originates in the executive arm of
government, cannot be oblivious to the basic notion that the
primary form of law making is through the legislature...”583
(Emphasis supplied)The Court held that the ordinance making power must be carefully structured
to ensure that it remains what the framers of our Constitution intended it to be:
an exceptional power to meet a constitutional necessity.
328 In a constitutional democracy, the power of government, is defined,
limited, and distributed by the fundamental norms of the Constitution. A
constitutional democracy holds its political regime accountable, responsible, or
answerable for its decisions and actions while in public office. 584 A
582 (2017) 3 SCC 1
583 Ibid, at page 76
584 Almon Leroy Way, Jr., Constitutional Democracy Other Political Regimes, available athttp://www.proconservative.net/CUNAPolSci201PartTWOA.shtml
445
PART Kconstitutional democracy determines the degree and manner of distribution of
political authority among the major organs or parts of the government. The
limits of each institution are set by the Constitution. No institution which has
been created by the Constitution can have absolute power. Separation of
powers, envisaged by the Constitution between different institutions acts as a
check and balance among the institutions and promotes the rule of law by
ensuring that no institution can act in an arbitrary manner. Judicial review as
a part of the basic structure of the Indian Constitution and as an essential
component of the rule of law and separation of powers, is intended to ensure
that every institution acts within its limits. Judicial review promotes
transparency, consistency and accountability in the administration of law, and
notions of equity, justice and fairness585. Constitutionalism thus puts a legal
limitation on the government. It envisages the existence of limited
government. Discretion conferred upon an institution of governance, be it the
legislature or the executive, is confined within clearly defined limits of the
Constitution. Not only are the organs of the State required to operate within
their defined legitimate spheres; they are bound to exercise their powers
within these spheres without violating the Constitution.586 Judicial review is a
sanction and agency to enforce the limitations imposed by the Constitution
upon the authority of the organs of the State.
585In Sheela Barse v. State of Maharashtra ((1983) 2 SCC 96), the Supreme Court insisted on fairness to women
in police lock-up and also drafted a code of guidelines for the protection of prisoners in police custody,
especially female prisoners. In Veena Sethi v. State of Bihar (AIR 1982 S.C. 1470), the Supreme Court
extended the reach of rule of law to the poor who constitute the bulk of India by ruling that rule of law does not
merely for those who have the means to fight for their rights and expanded the locus standi principle to help the
poor
586Durga Das Basu, Limited Government and Judicial Review, LexisNexis, (2016) at pages 123-124446
PART KThis formulation of the limited power of political authority has been recognized
in several judgments of this Court. In State of M P v Thakur Bharat Singh587,
a Constitution Bench held:
“5…Our federal structure is founded on certain fundamental
principles: (1) the sovereignty of the people with limited
Government authority i.e. the Government must be
conducted in accordance with the will of the majority of the
people. The people govern themselves through their
representatives, whereas the official agencies of the
executive Government possess only such powers as have
been conferred upon them by the people; (2) There is a
distribution of powers between the three organs of the
State — legislative, executive and judicial — each organ
having some check direct or indirect on the other; and (3)
the rule of law which includes judicial review of arbitrary
executive action…” (Emphasis supplied)329 In a decision rendered by a Constitution Bench, in S P Sampath Kumar
v Union of India588, Chief Justice P.N. Bhagwati, in his concurring opinion,
held:
“3…It is a fundamental principle of our constitutional scheme
that every organ of the State, every authority under the
Constitution, derives its power from the Constitution and has
to act within the limits of such power. It is a limited
government which we have under the Constitution and both
the executive and the legislature have to act within the limits
of the power conferred upon them under the Constitution…
The judiciary is constituted the ultimate interpreter of the
Constitution and to it is assigned the delicate task of
determining what is the extent and scope of the power
conferred on each branch of government, what are the
limits on the exercise of such power under the
Constitution and whether any action of any branch587(1967) 2 SCR 454
588 (1987) 1 SCC 124447
PART Ktransgresses such limits. It is also a basic principle of the
rule of law which permeates every provision of the
Constitution and which forms its very core and essence that
the exercise of power by the executive or any other authority
must not only be conditioned by the Constitution but also be
in accordance with law and it is the judiciary which has to
ensure that the law is observed and there is compliance with
the requirements of law on the part of the executive and other
authorities…”589 (Emphasis supplied)330 In I R Coelho v State of Tamil Nadu590, a nine judge Bench held that
control over government power ensures that the foundational values of a
democracy are not damaged:
“43…The principle of constitutionalism advocates a check
and balance model of the separation of powers; it requires a
diffusion of powers, necessitating different independent
centres of decision-making… The role of the judiciary is to
protect fundamental rights. A modern democracy is based on
the twin principles of majority rule and the need to protect
fundamental rights. According to Lord Steyn, it is job of the
judiciary to balance the principles ensuring that the
Government on the basis of number does not override
fundamental rights.”The rule of law is an implied limitation on the authority of any institution in a
constitutional democracy.591
331 Interim orders of courts are an integral element of judicial review.
Interim directions issued on the basis of the prima facie findings in a case are
589 Ibid, at pages 128-129
590 (2007) 2 SCC 1
591 K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1448
PART Ktemporary arrangements till the matter is finally decided. Interim orders ensure
that the cause which is being agitated does not become infructuous before the
final hearing.592 The power of judicial review is not only about the writs issued
by superior courts or the striking down of governmental action. Entrustment of
judicial review is accompanied by a duty to ensure that judicial orders are
complied with. Unless orders are enforced, citizens will lose faith in the
efficacy of judicial review and in the legal system.
It is in the background of the above constitutional position that this Court must
deal with the contention that the interim orders passed by this Court, during
the adjudication of the present dispute were not observed. This Court has
consistently insisted, through its interim orders, on a restraint on the
mandatory use of Aadhaar. It has been submitted that the interim orders have
been violated and several contempt petitions are pending593 before this Court.
332 Prior to the enactment of the Aadhaar Act, the scheme was challenged
before this Court. By its interim order dated 23 September 2013 594, a two
judge Bench directed:
“All the matters require to be heard finally. List all matters for
final hearing after the Constitution Bench is over.In the meanwhile, no person should suffer for not getting
the Aadhaar card in spite of the fact that some authority
had issued a circular making it mandatory and when any
person applies to get the Aadhaar Card voluntarily, it
may be checked whether that person is entitled for it592State of Assam v. Barak Upatyaka DU Karmachari Sanstha, (2009) 5 SCC 694
593Contempt Petition (Civil) No. 144/2014 in WP (C) No. 494/2012; Contempt Petition (Civil) No. 674/2014 in WP
(C) No. 829/2013; Contempt Petition (Civil) No 444/2016 in WP (C) No. 494/2012
594The interim order was in WP (Civil No. 494 of 2012)449
PART Kunder the law and it should not be given to any illegal
immigrant.” (sic)This was followed by an order dated 26 November 2013 where the earlier
order was continued:
“After hearing the matter at length, we are of the view that all
the States and Union Territories have to be impleaded as
respondents to give effective directions. In view thereof notice
be issued to all the States and Union Territories through
standing counsel…
Interim order to continue, in the meantime.”While considering another petition, Unique Identification Authority of India
v Central Bureau of Investigation595, this Court directed in an interim order
dated 24 March 2014:
“In the meanwhile, the present petitioner is restrained from
transferring any biometric information of any person who has
been allotted the Aadhaar number to any other agency
without his consent in writing… More so, no person shall be
deprived of any service for want of Aadhaar number in
case he/she is otherwise eligible/entitled. All the
authorities are directed to modify their
forms/circulars/likes so as to not compulsorily require
the Aadhaar number in order to meet the requirement of
the interim order passed by this Court forthwith… Tag
and list the matter with main matter i.e. WP(C)
No.494/2012.”On 16 March 2015, while considering WP (Civil) 494 of 2012, this Court noted
a violation of its earlier order dated 23 September 2013 and directed thus:
“The matters require considerable time for hearing… In the
meanwhile, it is brought to our notice that in certain
quarters, Aadhaar identification is being insisted upon by
the various authorities. We do not propose to go into the
specific instances. Since Union of India is represented by
learned Solicitor General and all the States are
represented through their respective counsel, we expect595 SLP (Crl.) No. 2524/2015
450
PART Kthat both the Union of India and States and all their
functionaries should adhere to the Order passed by this
Court on 23rd September, 2013.”By an order dated 11 August 2015, a three judge Bench referred the issue as
to whether privacy is a fundamental right to a bench of a larger strength of
judges. The following interim directions were issued:
“Having considered the matter, we are of the view that the
balance of interest would be best served, till the matter is
finally decided by a larger Bench if the Union of India or the
UIDAI proceed in the following manner:-1. The Union of India shall give wide publicity in the electronic
and print media including radio and television networks that it
is not mandatory for a citizen to obtain an Aadhaar card;2. The production of an Aadhaar card will not be condition for
obtaining any benefits otherwise due to a citizen;3. The Unique Identification Number or the Aadhaar card will
not be used by the respondents for any purpose other than
the PDS Scheme and in particular for the purpose of
distribution of foodgrains, etc. and cooking fuel, such as
kerosene. The Aadhaar card may also be used for the
purpose of the LPG Distribution Scheme;4. The information about an individual obtained by the Unique
Identification Authority of India while issuing an Aadhaar card
shall not be used for any other purpose, save as above,
except as may be directed by a Court for the purpose of
criminal investigation.”On 15 October 2015, a Constitution Bench of this Court partially modified the
order dated 11 August 2015, thus:
“3…we are of the view that in paragraph 3 of the Order dated
11.08.2015, if we add, apart from the other two Schemes,
namely, P.D.S. Scheme and the L.P.G. Distribution Scheme,
the Schemes like The Mahatma Gandhi National Rural
Employment Guarantee Scheme (MGNREGS), National
Social Assistance Programme (Old Age Pensions, Widow
Pensions, Disability Pensions), Prime Minister’s Jan Dhan
Yojana (PMJDY) and Employees’ Provident Fund
Organisation (EPFO) for the present, it would not dilute earlier
order passed by this Court. Therefore, we now include the
aforesaid Schemes apart from the other two Schemes that
this Court has permitted in its earlier order dated 11.08.2015.451
PART K
4. We impress upon the Union of India that it shall strictly
follow all the earlier orders passed by this Court commencing
from 23.09.2013.5. We will also make it clear that the Aadhaar card Scheme is
purely voluntary and it cannot be made mandatory till the
matter is finally decided by this Court one way or the other.”After the Aadhaar Act was enacted there was a challenge in All Bengal
Minority Students Council v Union of India596, to a letter written to the Chief
Secretaries/Administrators of all State Governments/Union territory
Administrations by the Under Secretary to the Government of India, by which
the requirement of the submission of Aadhaar for claiming benefits under a
scheme was made mandatory. By an order dated 14 September 2016, a two
judge Bench directed as follows:
“…we stay the operation and implementation of letters dated
14.07.2006 (i.e. Annexure P-5, P-6 and P-7) for Pre-Matric
Scholarship Scheme, Post-Matric Scholarship Scheme and
Merit-cum-Means Scholarship Scheme to the extent they
have made submission of Aadhaar mandatory and direct the
Ministry of Electronics and Information Technology,
Government of India i.e. Respondent No.2 to remove
Aadhaar number as a mandatory condition for student
Registration form at the National Scholarship Portal of
Ministry of Electronics and Information Technology,
Government of India at the website
and stay the
implementation of clause (c) of the 'Important Instructions' of
the advertisement dated 20.08.2016 for the Pre-Matric
Scholarship Scheme, Post-Matric Scholarship Scheme and
Merit-cum-Means Scholarship Scheme, during the pendency
of this writ petition.”It has been submitted that the notifications and circulars, which make the
application of Aadhaar mandatory, are contrary to the interim orders passed
by this Court. It has been contended that the Respondents have flouted the
596 WP (Civil) No. 686/2016
452
PART Kmost elementary norms of good governance and have disrespected judicial
orders. This contention requires serious consideration.
333 The legislature cannot simply declare that the judgment of a court is
invalid or that it stands nullified. In Kalpana Mehta, a Constitution Bench of
this Court held:
“255…If the legislature were permitted to do so, it would
travel beyond the boundaries of constitutional entrustment.
While the separation of powers prevents the legislature from
issuing a mere declaration that a judgment is erroneous or
invalid, the law-making body is entitled to enact a law which
remedies the defects which have been pointed out by the
court. Enactment of a law which takes away the basis of the
judgment (as opposed to merely invalidating it) is permissible
and does not constitute a violation of the separation doctrine.That indeed is the basis on which validating legislation is
permitted.”597Where a final judgment or order of this Court is sought to be undone by an Act
of Parliament, it is imperative that the basis of the Court’s judgment or order is
removed. It has been held by this Court in Bhubaneshwar Singh v Union of
India598:
“11. From time to time controversy has arisen as to whether the
effect of judicial pronouncements of the High Court or the
Supreme Court can be wiped out by amending the legislation
with retrospective effect. Many such Amending Acts are called
Validating Acts, validating the action taken under the particular
enactments by removing the defect in the statute
retrospectively because of which the statute or the part of it had
been declared ultra vires. Such exercise has been held by this
Court as not to amount to encroachment on the judicial power
of the courts. The exercise of rendering ineffective the
judgments or orders of competent courts by changing the
very basis by legislation is a well-known device of
validating legislation. This Court has repeatedly pointed out597 Ibid, at page 126
598 (1994) 6 SCC 77453
PART Kthat such validating legislation which removes the cause of the
invalidity cannot be considered to be an encroachment on
judicial power. At the same time, any action in exercise of
the power under any enactment which has been declared
to be invalid by a court cannot be made valid by a
Validating Act by merely saying so unless the defect which
has been pointed out by the court is removed with
retrospective effect. The validating legislation must remove
the cause of invalidity. Till such defect or the lack of
authority pointed out by the court under a statute is
removed by the subsequent enactment with retrospective
effect, the binding nature of the judgment of the court
cannot be ignored.”599 (Emphasis supplied)When the Aadhaar Act was notified on 25 March 2016, the interim directions
issued by this court were in operation. Was it then open to government to
launch upon a virtual spree of administrative notifications making Aadhaar a
mandatory requirement of virtually every aspect of human existence from birth
until death?
The position which the Union government has adopted before this court is
simply this: interim directions were issued by this court when the Aadhaar
project was governed by executive instructions. Once a law was enacted by
Parliament, a statutory authorisation was brought into existence to enable
government to issue administrative instructions. Hence, compliance with the
interim orders stands obviated upon the enactment of the law.
334 This defence of government can be scrutinized at two levels – the first
as a matter of statutory interpretation and the second, on a broader
foundation which engages the judicial power of this court. As a matter of
599 Ibid at pages 83-84454
PART Kstatutory interpretation, the Aadhaar Act did not, as it could not have, merely
nullified the interim orders of this court. Section 59 has no provision which
gives it overriding effect notwithstanding any judgment, decree or order of a
court. The interim orders do not stand superseded. Apart from approaching
the issue purely as a matter of statutory interpretation, there are broader
concerns which arise from the manner in which the authorities proceeded,
oblivious to the interim directions. Interim directions were issued by this court
in a situation where a constitutional challenge was addressed in a batch of
petitions on the ground that the Aadhaar project was offensive to fundamental
rights, including the right to privacy. So significant was the nature of the
challenge that it was referred initially to a Constitution Bench and thereafter,
to a bench of nine-judges of this Court for resolving the question as to
whether privacy is a protected fundamental right. The collection and storage
of biometric data and its use for the purpose of authentication is the subject of
a constitutional challenge. Noting the nature of the challenge and after
considering the serious issues which have arisen in the case, successive
benches of this Court issued a series of interim directions. The purport of
those directions is that Aadhaar could not be made mandatory except for
specified schemes which were listed by the court. Moreover, in the context of
the serious grievance of financial exclusion, the court directed that no
individual should be excluded from the receipt of welfare entitlements, such as
food-grains, for want of an Aadhaar number. The constitutional challenge was
not obviated merely on the enactment of the Aadhaar Act. The law gave a
455
PART Kstatutory character to a project which since 2009 was possessed of an
administrative or executive nature. The constitutional challenge to some of the
basic features underlying the collection of biometric data still remained to be
addressed by the court. The proceedings before this Court are testimony to
the fact that the issue of constitutionality was indeed live. That being the
position, the issuance of a spate of administrative notifications is in defiance
of the interim orders passed by this Court. Judicial orders, be they interim or
final, cannot simply be wished away. If governments or citizens were allowed
to ignore judicially enforceable directions, that would negate the basis of the
rule of law. Both propriety and constitutional duty required Union government
to move this Court after the enactment of the Aadhaar Act for variation of the
interim orders. Such an application would have required this Court to weigh
on the one hand the subsequent development of the law being passed
(something which would be relied upon by government) with the constitutional
concerns over the entire biometric project. It is not as if that the mere
enactment of the law put an end to the constitutional challenge. The existence
of law (post 2016) is only one aspect to be considered in deciding the interim
arrangement which would hold the field when the constitutional challenge was
pending adjudication before this Court. Institutions of governance are bound
by a sense of constitutional morality which requires them to abide by judicial
orders. What seems to emerge from the course of action which has been
followed in the present case by government is a perception that judicial
directions can be ignored on a supposed construction of the statute. Besides
456
PART Kthe fact that this construction is erroneous in law, it is above all, the
fundamental duty of this Court to ensure that its orders are not treated with
disdain. If we were not to enforce a punctilious compliance with our own
directions by government, that would ring a death – knell of the institutional
position of the Supreme Court. If governments were free to ignore judicial
directions at will, could a different yardstick be applied to citizens? The
obligation to comply with judicial orders is universal to our polity and admits of
no exception. Confronted with a brazen disregard of our interim orders, I
believe that we have no course open except to stand firm.
335 The power of judicial review conferred on an independent judiciary
requires that other organs of the State respect the authority of Courts. This
Court in P Sambamurthy v State of Andhra Pradesh600, while highlighting
the importance of judicial review in the rule of law regime, held thus:
“4… it is a basic principle of the rule of law that the exercise
of power by the executive or any other authority must not only
be conditioned by the Constitution but must also be in
accordance with law and the power of judicial review is
conferred by the Constitution with view to ensuring that the
law is observed and there is compliance with the requirement
of law on the part of the executive and other authorities. It is
through the power of judicial review conferred on an
independent institutional authority such as the High Court that
the rule of law is maintained and every organ of the State is
kept within the limits- of the law. Now if the exercise of the
power of judicial review can be set at naught by the State
Government by overriding the decision given against it, it
would sound, the death-knell of the rule of law. The rule
of law would cease to have any meaning, because then it
would be open to the State Government to defy the law
and yet get away with it.”601 (Emphasis supplied)600 (1987) 1 SCC 362
601 Ibid, at page 369457
PART K336 A Bench of two judges in Re: Arundhati Roy602 held that for the courts
to protect the rule of law, it is necessary that the dignity and authority of the
courts have to be respected and protected. It was held:
“‘Rule of Law’ is the basic rule of governance of any civilised
democratic policy. Our Constitutional scheme is based upon
the concept of Rule of Law which we have adopted and given
to ourselves. Everyone, whether individually or collectively is
unquestionably under the supremacy of law. Whoever the
person may be, however high he or she is, no-one is above
the law notwithstanding how powerful and how rich he or she
may be. For achieving the establishment of the rule of
law, the Constitution has assigned the special task to the
judiciary in the country. It is only through the courts that
the rule of law unfolds its contents and establishes its
concept. For the judiciary to perform its duties and
functions effectively and true to the spirit with which it is
sacredly entrusted, the dignity and authority of the
courts have to be respected and protected at all costs.”603
(Emphasis supplied)The accountability of power, as a component of the rule of law, requires that
the power vested in any organ of the State, and its agents, can only be used
for promotion of constitutional values and vision.604 Governmental authority
may only be exercised in accordance with written laws which are adopted
though an established procedure. No action of the legislature or the executive
can undermine the authority of the courts, except according to established
principles. Disrespect of court orders results in impairment of the dignity of the
courts.
602 (2002) 3 SCC 343
603 Ibid, at page 346
604 Nandini Sundar v State of Chhattisgarh, (2011) 7 SCC 547458
PART K337 Constitutional morality requires a government not to act in a manner
which would become violative of the rule of law.605 Constitutional morality
requires that the orders of this Court be complied with, faithfully. This Court is
the ultimate custodian of the Constitution. The limits set by the Constitution
are enforced by this Court. Constitutional morality requires that the faith of the
citizens in the constitutional courts of the country be maintained. The
importance of the existence of courts in the eyes of citizens has been
highlighted in Harper Lee’s classic “To Kill a Mockingbird”:
“But there is one way in this country in which all men are
created equal—there is one human institution that makes a
pauper the equal of a Rockefeller, the stupid man the equal of
an Einstein, and the ignorant man the equal of any college
president. That institution, gentlemen, is a court. It can be
the Supreme Court of the United States or the humblest J.P.court in the land, or this honorable court which you serve. Our
courts have their faults, as does any human institution, but in
this country our courts are the great levelers, and in our
courts all men are created equal.” (Emphasis supplied)Many citizens, although aggrieved, are not in a condition to reach the highest
Court. The poorest and socially neglected lack resources and awareness to
reach this Court. Their grievances remain unaddressed. Such individuals
suffer injury each day without remedy. Disobedience of the interim orders of
this Court and its institutional authority, in the present case, has made a
societal impact. It has also resulted in denial of subsidies and other benefits
essential to the existence of a common citizen. Constitutional morality
therefore needs to be enforced as a valid response to these arbitrary acts.
Non-compliance of the interim orders of this Court is contrary to constitutional
605 Manoj Narula v Union of India, (2014) 9 SCC 1
459
PART Kmorality. Constitutional morality, as an essential component of the rule of law,
must neutralise the excesses of power by the executive. The brazen manner
in which notifications have been issued making Aadhaar mandatory, despite
the interim order of this Court is a matter of serious concern. Deference to the
institutional authority of the Supreme Court is integral to the values which the
Constitution adopts. The postulate of a limited government is enforced by the
role of the Supreme Court in protecting the liberties of citizens and holding
government accountable for its transgressions. The authority of this Court is
crucial to maintaining the fine balances of power on which democracy thrives
and survives. The orders of the Court are not recommendatory – they are
binding directions of a constitutional adjudicator. Dilution of the institutional
prestige of this Court can only be at the cost of endangering the freedom of
over a billion citizens which judicial review seeks to safeguard.
338 Courts – as it is often said- have neither the power of the purse nor the
sword. Our authority lies in constitutional legitimacy as much as in public
confidence. Combined together they impart moral and institutional authority to
the Court. That sense of legitimacy and duty have required me to assert once
again the norms of a written Constitution and the rule of law. This judgment
has taken a much wider postulation. Having held the Aadhaar Act prior to its
passage not to be a Money Bill, I have delved into the merits of the
constitutional challenge for two reasons:
460
PART Li. Merits have been argued in considerable detail both by petitioners and the
Union of India; and
ii. As a logical consequence of the view that the Aadhaar legislation is not a
Money Bill, it would be open to the government to reintroduce fresh
legislation. The principles governing a law regulating the right to data
protection and informational privacy have hence been delineated.
L Conclusion339 The present dispute has required this Court to analyze the provisions of
the Aadhaar Act and Regulations, along with the framework as it existed prior
to the enactment of the Act, through the prism of the Constitution and the
precedents of this Court. My conclusions are outlined below:
(1) In order to deal with the challenge that the Aadhaar Act should not have
been passed as a Money Bill, this Court was required to adjudicate
whether the decision of the Speaker of the Lok Sabha to certify a Bill as a
Money Bill, can be subject to judicial review. The judgment has analyzed
the scope of the finality attributed to the Speaker’s decision, by looking at
the history of Article 110(3) of the Constitution, by comparing it with the
comparative constitutional practices which accord finality to the Speaker’s
decision, by analyzing other constitutional provisions which use the phrase
461
PART L“shall be final”, and by examining the protection granted to parliamentary
proceedings under Article 122. This judgment holds that:
(a) The phrase “shall be final” used under Article 110(3) aims at avoiding
any controversy on the issue as to whether a Bill is a Money Bill, with
respect to the Rajya Sabha and before the President. The language
used in Article 110(3) does not exclude judicial review of the Speaker’s
decision. This also applies to Article 199(3).
(b) The immunity from judicial review provided to parliamentary
proceedings under Article 122 is limited to instances involving
“irregularity of procedure”. The decisions of this Court in Special
Reference, Ramdas Athawale and Raja Ram Pal hold that the validity
of proceedings in Parliament or a State Legislature can be subject to
judicial review when there is a substantive illegality or a constitutional
violation. These judgments make it clear that the decision of the
Speaker is subject to judicial review, if it suffers from illegality or from a
violation of constitutional provisions.
(c) Article 255 has no relation with the decision of the Speaker on whether
a Bill is a Money Bill. The three Judge Bench decision in Mohd Saeed
Siddiqui erroneously interpreted the judgment in Mangalore Beedi to
apply Articles 212 (or Article 122) and 255 to refrain from questioning
the conduct of the Speaker (under Article 199 or 110). The two judge
462
PART LBench decision in Yogendra Kumar followed Mohd Saeed Siddiqui.
The correct position of law is that the decision of the Speaker under
Articles 110(3) and 199(3) is not immune from judicial review. The
decisions in Mohd Saeed Siddiqui and Yogendra Kumar are
accordingly overruled.
(d) The existence of and the role of the Rajya Sabha, as an institution of
federal bicameralism in the Indian Parliament, constitutes a part of the
basic structure of the Constitution. The decision of the Speaker of the
Lok Sabha to certify a Bill as a Money Bill has a direct impact on the
role of the Rajya Sabha, since the latter has a limited role in the passing
of a Money Bill. A decision of the Speaker of the Lok Sabha to declare
an ordinary Bill to be a Money Bill limits the role of the Rajya Sabha.
The power of the Speaker cannot be exercised arbitrarily in violation of
constitutional norms and values, as it damages the essence of federal
bicameralism, which is a part of the basic structure of the Constitution.
Judicial review of the Speaker’s decision, on whether a Bill is a Money
Bill, is therefore necessary to protect the basic structure of the
Constitution.
(2) To be certified a Money Bill, a Bill must contain “only provisions” dealing
with every or any one of the matters set out in sub-clauses (a) to (g) of
Article 110(1). A Bill, which has both provisions which fall within sub-
clauses (a) to (g) of Article 110(1) and provisions which fall outside their
463
PART Lscope, will not qualify to be a Money Bill. Thus, when a Bill which has
been passed as a Money Bill has certain provisions which fall beyond the
scope of sub-clauses (a) to (g) of Article 110(1), these provisions cannot
be severed. If the bill was not a Money Bill, the role of the Rajya Sabha in
its legislative passage could not have been denuded. The debasement of
a constitutional institution cannot be countenanced by the Court.
Democracy survives when constitutional institutions are vibrant.
(3) The Aadhaar Act creates a statutory framework for obtaining a unique
identity number, which is capable of being used for “any” purpose, among
which availing benefits, subsidies and services, for which expenses are
incurred from the Consolidated Fund of India, is just one purpose provided
under Section 7. Clause (e) of Article 110(1) requires that a Money Bill
must deal with the declaring of any expenditure to be expenditure charged
on the Consolidated Fund of India (or increasing the amount of the
expenditure). Section 7 fails to fulfil this requirement. Section 7 does not
declare the expenditure incurred to be a charge on the Consolidated
Fund. It only provides that in the case of such services, benefits or
subsidies, Aadhaar can be made mandatory to avail of them. Moreover,
provisions other than Section 7 of the Act deal with several aspects
relating to the Aadhaar numbers: enrolment on the basis of demographic
and biometric information, generation of Aadhaar numbers, obtaining the
consent of individuals before collecting their individual information,
464
PART Lcreation of a statutory authority to implement and supervise the process,
protection of information collected during the process, disclosure of
information in certain circumstances, creation of offences and penalties for
disclosure or loss of information, and the use of the Aadhaar number for
“any purpose”. All these provisions of the Aadhaar Act do not lie within the
scope of sub-clauses (a) to (g) of Article 110(1). Hence, in the alternate,
even if it is held that Section 7 bears a nexus to the expenditure incurred
from the Consolidated Fund of India, the other provisions of the Act fail to
fall within the domain of Article 110(1). Thus, the Aadhaar Act is declared
unconstitutional for failing to meet the necessary requirements to have
been certified as a Money Bill under Article 110(1).
(4) The argument that the Aadhaar Act is in pith and substance a Money Bill,
with its main objective being the delivery of subsidies, benefits and
services flowing out of the Consolidated Fund of India and that the other
provisions are ancillary to the main purpose of the Act also holds no
ground, since the doctrine of pith and substance is used to examine
whether the legislature has the competence to enact a law with regard to
any of the three Lists in the Seventh Schedule of the Constitution. The
doctrine cannot be invoked to declare whether a Bill satisfies the
requirements set out in Article 110 of the Constitution to be certified a
Money Bill. The argument of the Union of India misses the point that a Bill
465
PART Lcan be certified as a Money Bill “only” if it deals with all or any of the
matters contained in clauses (a) to (g) of Article 110(1).
(5) Having held that the Aadhaar Act is unconstitutional for having been
passed as a Money Bill this judgment has also analysed the merits of the
other constitutional challenges to the legislation as well as to the
framework of the project before the law was enacted.
(6) The architecture of the Aadhaar Act seeks to create a unique identity for
residents on the basis of their demographic and biometric information. The
Act sets up a process of identification by which the unique identity
assigned to each individual is verified with the demographic and biometric
information pertaining to that individual which is stored in a centralised
repository of data. Identification of beneficiaries is integral and essential to
the fulfilment of social welfare schemes and programmes, which are a part
of the State’s attempts to ensure that its citizens have access to basic
human facilities. This judgment accepts the contention of the Union of
India that there is a legitimate state aim in maintaining a system of
identification to ensure that the welfare benefits provided by the State
reach the beneficiaries who are entitled, without diversion.
(7) The Aadhaar programme involves application of biometric technology,
which uses an individual’s biometric data as the basis of authentication or
identification and is therefore intimately connected to the individual. While
466
PART Lcitizens have privacy interests in personal or private information collected
about them, the unique nature of biometric data distinguishes it from other
personal data, compounding concerns regarding privacy protections
safeguarding biometric information. Once a biometric system is
compromised, it is compromised forever. Therefore, it is imperative that
concerns about protecting privacy must be addressed while developing a
biometric system. Adequate norms must be laid down for each step from
the collection to retention of biometric data. At the time of collection,
individuals must be informed about the collection procedure, the intended
purpose of the collection, the reason why the particular data set is
requested and who will have access to their data. Additionally, the
retention period must be justified and individuals must be given the right to
access, correct and delete their data at any point in time, a procedure
familiar to an opt-out option.
(8) Prior to the enactment of the Aadhaar Act, no mandatory obligation was
imposed upon the Registrars or the enrolling agencies, to obtain informed
consent from residents before recording their biometric data, to inform
them how the biometric data would be stored and used and about the
existence of adequate safeguards to secure the data. Moreover, prior to
the enactment of the Act, while UIDAI had itself contemplated that an
identity theft could occur at the time of enrollment for Aadhaar cards, it
467
PART Lhad no solution to the possible harms which could result after the identity
theft of a person.
(9) The Regulations framed subsequently under the Aadhaar Act also do not
provide a robust mechanism on how informed consent is to be obtained
from residents before collecting their biometric data. The Aadhaar Act and
Regulations are bereft of the procedure through which an individual can
access information related to his or her authentication record. The
Aadhaar Act clearly has no defined options that should be made available
to the Aadhaar number holders in case they do not wish to submit identity
information during authentication, nor do the regulations specify the
procedure to be followed in case the Aadhaar number holder does not
provide consent for authentication.
(10) Sections 29(1) and (2) of the Act create a distinction between two classes
of information (core biometric information and identity information), which
are integral to individual identity and require equal protection. Section
29(4) suffers from overbreadth as it gives wide discretionary power to
UIDAI to publish, display or post core biometric information of an individual
for purposes specified by the regulations.
(11) Sections 2(g), (j), (k) and (t) suffer from overbreadth, as these can lead to
an invasive collection of biological attributes. These provisions give
468
PART Ldiscretionary power to UIDAI to define the scope of biometric and
demographic information and empower it to expand on the nature of
information already collected at the time of enrollment, to the extent of
also collecting any “such other biological attributes” that it may deem fit.
(12) There is no clarity on how an individual is supposed to update his/her
biometric information, in case the biometric information mismatches with
the data stored in CIDR. The proviso to Section 28(5) of the Aadhaar Act,
which disallows an individual access to the biometric information that
forms the core of his or her unique ID, is violative of a fundamental
principle that ownership of an individual’s data must at all times vest with
the individual. UIDAI is also provided wide powers in relation to removing
the biometric locking of residents. With this analysis of the measures
taken by the Government of India prior to the enactment of the Aadhaar
Act as well as a detailed analysis of the provisions under the Aadhaar Act,
2016 and supporting Regulations made under it, this judgment concludes
that the Aadhaar programme violates essential norms pertaining to
informational privacy, self-determination and data protection.
(13) The State is under a constitutional obligation to safeguard the dignity of
its citizens. Biometric technology which is the core of the Aadhaar
programme is probabilistic in nature, leading to authentication failures.
These authentication failures have led to the denial of rights and legal
469
PART Lentitlements. The Aadhaar project has failed to account for and remedy
the flaws in its framework and design which has led to serious instances
of exclusion of eligible beneficiaries as demonstrated by the official
figures from Government records including the Economic Survey of India
2016-17 and research studies. Dignity and the rights of individuals cannot
be made to depend on algorithms or probabilities. Constitutional
guarantees cannot be subject to the vicissitudes of technology. Denial of
benefits arising out of any social security scheme which promotes socio-
economic rights of citizens is violative of human dignity and impermissible
under our constitutional scheme.
(14) The violations of fundamental rights resulting from the Aadhaar scheme
were tested on the touchstone of proportionality. The measures adopted
by the respondents fail to satisfy the test of necessity and proportionality
for the following reasons:
(a) Under the Aadhaar project, requesting entities can hold the identity
information of individuals, for a temporary period. It was admitted by
UIDAI that AUAs may store additional information according to their
requirement to secure their system. ASAs have also been permitted to
store logs of authentication transactions for a specific time period. It has
been admitted by UIDAI that it gets the AUA code, ASA code, unique
device code and the registered device code used for authentication,
and that UIDAI would know from which device the authentication took
470
PART Lplace and through which AUA/ASA. Under the Regulations, UIDAI
further stores the authentication transaction data. This is in violation of
widely recognized data minimisation principles which mandate that data
collectors and processors delete personal data records when the
purpose for which it has been collected is fulfilled. Moreover, using the
meta-data related to the transaction, the location of the authentication
can easily be traced using the IP address, which impacts upon the
privacy of the individual.
(b) From the verification log, it is possible to locate the places of
transactions by an individual in the past five years. It is also possible
through the Aadhaar database to track the current location of an
individual, even without the verification log. The architecture of Aadhaar
poses a risk of potential surveillance activities through the Aadhaar
database. Any leakage in the verification log poses an additional risk of
an individual’s biometric data being vulnerable to unauthorised
exploitation by third parties.
(c) The biometric database in the CIDR is accessible to third-party vendors
providing biometric search and de-duplication algorithms, since neither
the Central Government nor UIDAI have the source code for the de-
duplication technology which is at the heart of the programme. The
source code belongs to a foreign corporation. UIDAI is merely a
licensee. Prior to the enactment of the Aadhaar Act, without the consent
471
PART Lof individual citizens, UIDAI contracted with L-1 Identity Solutions (the
foreign entity which provided the source code for biometric storage) to
provide to it any personal information related to any resident of India.
This is contrary to the basic requirement that an individual has the right
to protect herself by maintaining control over personal information. The
protection of the data of 1.2 billion citizens is a question of national
security and cannot be subjected to the mere terms and conditions of a
normal contract.
(d) Before the enactment of the Aadhaar Act, MOUs signed between UIDAI
and Registrars were not contracts within the purview of Article 299 of
the Constitution, and therefore, do not cover the acts done by the
private entities engaged by the Registrars for enrolment. Since there is
no privity of contract between UIDAI and the Enrolling agencies, the
activities of the private parties engaged in the process of enrolment
before the enactment of the Aadhaar Act have no statutory or legal
backing.
(e) Under the Aadhaar architecture, UIDAI is the sole authority which
carries out all administrative, adjudicatory, investigative, and monitoring
functions of the project. While the Act confers these functions on UIDAI,
it does not place any institutional accountability upon UIDAI to protect
the database of citizens’ personal information. UIDAI also takes no
institutional responsibility for verifying whether the data entered and
472
PART Lstored in the CIDR is correct and authentic. The task has been
delegated to the enrolment agency or the Registrar. Verification of data
being entered in the CIDR is a highly sensitive task for which the UIDAI
ought to have taken responsibility. The Aadhaar Act is also silent on the
liability of UIDAI and its personnel in case of their non-compliance of
the provisions of the Act or the regulations.
(f) Section 47 of the Act violates citizens’ right to seek remedies. Under
Section 47(1), a court can take cognizance of an offence punishable
under the Act only on a complaint made by UIDAI or any officer or
person authorised by it. Section 47 is arbitrary as it fails to provide a
mechanism to individuals to seek efficacious remedies for violation of
their right to privacy. Further, Section 23(2)(s) of the Act requires UIDAI
to establish a grievance redressal mechanism. Making the authority
which is administering a project, also responsible for providing a
grievance redressal mechanism for grievances arising from the project
severely compromises the independence of the grievance redressal
body.
(g) While the Act creates a regime of criminal offences and penalties, the
absence of an independent regulatory framework renders the Act
largely ineffective in dealing with data violations. The architecture of
Aadhaar ought to have, but has failed to embody within the law the
establishment of an independent monitoring authority (with a hierarchy
473
PART Lof regulators), along with the broad principles for data protection. This
compromise in the independence of the grievance redressal body
impacts upon the possibility and quality of justice being delivered to
citizens. In the absence of an independent regulatory and monitoring
framework which provides robust safeguards for data protection, the
Aadhaar Act cannot pass muster against a challenge on the ground of
reasonableness under Article 14.
(h) No substantive provisions, such as those providing data minimization,
have been laid down as guiding principles for the oversight mechanism
provided under Section 33(2), which permits disclosure of identity
information and authentication records in the interest of national
security.
(i) Allowing private entities to use Aadhaar numbers, under Section 57, will
lead to commercial exploitation of the personal data of individuals
without consent and could also lead to individual profiling. Profiling
could be used to predict the emergence of future choices and
preferences of individuals. These preferences could also be used to
influence the decision making of the electorate in choosing candidates
for electoral offices. This is contrary to privacy protection norms. Data
cannot be used for any purpose other than those that have been
approved. While developing an identification system of the magnitude
of Aadhaar, security concerns relating to the data of 1.2 billion citizens
474
PART Lought to be addressed. These issues have not been dealt with by the
Aadhaar Act. By failing to protect the constitutional rights of citizens,
Section 57 violates Articles 14 and 21.
(j) Section 57 is susceptible to be applied to permit commercial
exploitation of the data of individuals or to affect their behavioural
patterns. Section 57 cannot pass constitutional muster. Since it is
manifestly arbitrary, it suffers from overbreadth and violates Article 14.
(k) Section 7 suffers from overbreadth since the broad definitions of the
expressions ‘services and ‘benefits’ enable the government to regulate
almost every facet of its engagement with citizens under the Aadhaar
platform. If the requirement of Aadhaar is made mandatory for every
benefit or service which the government provides, it is impossible to live
in contemporary India without Aadhaar. The inclusion of services and
benefits in Section 7 is a pre-cursor to the kind of function creep which
is inconsistent with the right to informational self-determination. Section
7 is therefore arbitrary and violative of Article 14 in relation to the
inclusion of services and benefits as defined.
(l) The legitimate aim of the State can be fulfilled by adopting less intrusive
measures as opposed to the mandatory enforcement of the Aadhaar
scheme as the sole repository of identification. The State has failed to
demonstrate that a less intrusive measure other than biometric
475
PART Lauthentication would not subserve its purposes. That the state has
been able to insist on an adherence to the Aadhaar scheme without
exception is a result of the overbreadth of Section 7.
(m) When Aadhaar is seeded into every database, it becomes a bridge
across discreet data silos, which allows anyone with access to this
information to re-construct a profile of an individual’s life. This is
contrary to the right to privacy and poses severe threats due to potential
surveillance.
(n) One right cannot be taken away at the behest of the other. The State
has failed to satisfy this Court that the targeted delivery of subsidies
which animate the right to life entails a necessary sacrifice of the right
to individual autonomy, data protection and dignity when both these
rights are protected by the Constitution.
(15) Section 59 of the Aadhaar Act seeks to retrospectively validate the
actions of the Central Government done prior to the Aadhaar Act
pursuant to Notifications dated 28 January 2009. and 12 September
2015. Section 59 does not validate actions of the state governments or of
private entities. Moreover, the notification of 2009 did not authorise the
collection of biometric data. Consequently, the validation of actions taken
under the 2009 notification by Section 59 does not save the collection of
biometric data prior to the enforcement of the Act. While Parliament
476
PART Lpossesses the competence to enact a validating law, it must cure the
cause of infirmity or invalidity. Section 59 fails to cure the cause of
invalidity prior to the enactment of the Aadhaar Act. The absence of a
legislative framework for the Aadhaar project between 2009 and 2016 left
the biometric data of millions of Indian citizens bereft of the kind of
protection which must be provided to comprehensively protect and
enforce the right to privacy. Section 59 therefore fails to meet the test of
a validating law since the complete absence of a regulatory framework
and safeguards cannot be cured merely by validating what was done
under the notifications of 2009 and 2016.
(16) The decision in Puttaswamy recognised that revenue constitutes a
legitimate state aim in the three-pronged test of proportionality. However,
the existence of a legitimate aim is insufficient to uphold the validity of the
law, which must also meet the other parameters of proportionality spelt out
in Puttaswamy.
(17) The seeding of Aadhaar with PAN cards depends on the constitutional
validity of the Aadhaar legislation itself. Section 139AA of the Income Tax
Act 1962 is based on the premise that the Aadhaar Act itself is a valid
legislation. Since the Aadhaar Act itself is now held to be unconstitutional
for having been enacted as a Money Bill and on the touchstone of
proportionality, the seeding of Aadhaar to PAN under Article 139AA does
not stand independently.
477
PART L(18) The 2017 amendments to the PMLA Rules fail to satisfy the test of
proportionality. The imposition of a uniform requirement of linking Aadhaar
numbers with all account based relationships proceeds on the
presumption that all existing account holders as well as every individual
who seeks to open an account in future is a potential money-launderer. No
distinction has been made in the degree of imposition based on the client,
the nature of the business relationship, the nature and value of the
transactions or the actual possibility of terrorism and money- laundering.
The rules also fail to make a distinction between opening an account and
operating an account. Moreover, the consequences of the failure to submit
an Aadhaar number are draconian. In their present form, the rules are
clearly disproportionate and excessive. We clarify that this holding would
not preclude the Union Government in the exercise of its rule making
power and the Reserve Bank of India as the regulator to re-design the
requirements in a manner that would ensure due fulfillment of the object of
preventing money-laundering, subject to compliance with the principles of
proportionality as outlined in this judgment.
(19) Mobile phones have become a ubiquitous feature of the lives of people
and the linking of Aadhaar numbers with SIM cards and the requirement of
e-KYC authentication of mobile subscribers must necessarily be viewed in
this light. Applying the proportionality test, the legitimate aim of subscriber
verification, has to be balanced against the countervailing requirements of
478
PART Lpreserving the integrity of biometric data and the privacy of mobile phone
subscribers. Mobile phones are a storehouse of personal data and reflect
upon individual preferences, lifestyle and choices. The conflation of
biometric information with SIM cards poses grave threats to individual
privacy, liberty and autonomy. Having due regard to the test of
proportionality which has been propounded in Puttaswamy and as
elaborated in this judgment, the decision to link Aadhaar numbers with
mobile SIM cards is neither valid nor constitutional. The mere existence of
a legitimate state aim will not justify the disproportionate means which
have been adopted in the present case. The biometric information and
Aadhaar details collected by Telecom Service Providers shall be deleted
forthwith and no use of the said information or details shall be made by
TSPs or any agency or person or their behalf.
(20) Defiance of judicial orders (both interim and final) be it by the government
or by citizens negates the basis of the rule of law. Both propriety and
constitutional duty required the Union government to move this Court after
the enactment of the Aadhaar Act for variation of this Court’s interim
orders. Institutions of governance are bound by a sense of constitutional
morality which requires them to abide by judicial orders.
(21) Identity is necessarily a plural concept. The Constitution also recognizes
a multitude of identities through the plethora of rights that it safeguards.
479
PART LThe technology deployed in the Aadhaar scheme reduces different
constitutional identities into a single identity of a 12-digit number and
infringes the right of an individual to identify herself/himself through a
chosen means. Aadhaar is about identification and is an instrument which
facilitates a proof of identity. It must not be allowed to obliterate
constitutional identity.
(22) The entire Aadhaar programme, since 2009, suffers from constitutional
infirmities and violations of fundamental rights. The enactment of the
Aadhaar Act does not save the Aadhaar project. The Aadhaar Act, the
Rules and Regulations framed under it, and the framework prior to the
enactment of the Act are unconstitutional.
(23) To enable the government to initiate steps for ensuring conformity with
this judgment, it is directed under Article 142 that the existing data which
has been collected shall not be destroyed for a period of one year. During
this period, the data shall not be used for any purpose whatsoever. At the
end of one year, if no fresh legislation has been enacted by the Union
government in conformity with the principles which have been enunciated
in this judgment, the data shall be destroyed.
Creating strong privacy protection laws and instilling safeguards may address
or at the very least assuage some of the concerns associated with the
Aadhaar scheme which severely impairs informational self-determination,
480
PART Lindividual privacy, dignity and autonomy. In order to uphold the democratic
values of the Constitution, the government needs to address the concerns
highlighted in this judgment which would provide a strong foundation for digital
initiatives, which are imminent in today’s digital age. However, in its current
form, the Aadhaar framework does not sufficiently assuage the concerns that
have arisen from the operation of the project which have been discussed in
this judgment.
……....................................................J
[Dr Dhananjaya Y Chandrachud]New Delhi;
September 26, 2018.
481
1REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTIONWRIT PETITION (CIVIL) NO. 494 OF 2012
JUSTICE K.S.PUTTASWAMY (RETD.) AND ANR. ...PETITIONERS
VERSUS
UNION OF INDIA AND ORS. ... RESPONDENTS
WITH
T.C.(C) No.151/2013, T.C.(C) No.152/2013, W.P.(C)
No.833/2013 (PILW), W.P.(C) No.829/2013 (PILW), T.P.
(C) No.1797/2013, W.P.(C) No.932/2013 (PILW), T.P.(C)
No.1796/2013, CONMT. PET.(C) No.144/2014 In W.P.(C)
No.494/2012 (PILW), T.P.(C) No.313/2014, T.P.(C)
No.312/2014, SLP(Crl.) No.2524/2014, W.P.(C)
No.37/2015 (PILW), W.P.(C) No.220/2015 (PILW),
CONMT. PET.(C) No.674/2015 In W.P.(C) No.829/2013
(PILW), T.P.(C) No.921/2015, CONMT. PET.(C)
No.470/2015 In W.P.(C) No.494/2012 (PILW), W.P.(C)
No.231/2016 (PILW), CONMT. PET.(C) No.444/2016 In
W.P.(C) No.494/2012 (PILW), CONMT. PET.(C)
No.608/2016 In W.P.(C) No.494/2012 (PILW), W.P.(C)
No.797/2016 (PILW), CONMT. PET.(C) No.844/2017 In
W.P.(C) No.494/2012 (PILW), W.P.(C) No.342/2017 (PIL
W), W.P.(C) No.372/2017, W.P.(C) No.841/2017, W.P.(C)
No.1058/2017 (PILW), W.P.(C) No.966/2017 (PILW),
W.P.(C) No. 1014/2017 (PILW), W.P. (C) No.1002/2017
(PILW), W.P.(C) No.1056/2017 and CONMT. PET.(C)
No.34/2018 in W.P.(C) No.1014/2017 (PILW)J U D G M E N T
ASHOK BHUSHAN, J.
The challenge in this batch of cases can be
2divided in two parts, firstly, the challenge to
Executive's Scheme dated 28.01.2009 notified by the
Government of India, by which the Unique
Identification Authority of India (hereinafter
referred to as “UIDAI”) was constituted to implement
the UIDAI Scheme, and secondly challenge to The
Aadhaar (Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) Act, 2016
(hereinafter referred to as “Act, 2016”).
2. The group of cases can be divided into four broad
heads. First head consists of the sixteen Writ
Petitions filed under Article 32 of the Constitution
of India in this Court challenging the notification
dated 28.01.2009 and/or the Act, 2016.
Second group consists of seven Transfer
Cases/Transfer petitions to be heard alongwith Writ
Petitions filed under Article 32.
Group three consists of only one Special Leave
Petition (Criminal) No. 2524 of 2014 filed by UIDAI
and Anr. Fourth group consists of seven Contempt
3Petitions, which have been filed alleging violation of
the interim orders passed by this Court in Writ
Petitions and SLP (Criminal) as noted above.
3. Before we come to the different prayers made in
the Writ Petitions wherein Executive Scheme dated
28.01.2009 as well as Act, 2016 has been challenged,
it is useful to notice certain background facts, which
lead to issuance of notification dated 28.01.2009 as
well as the Act, 2016.
4. India is a country, which caters a sea of
population. When the British left our country in
1947, total population of the country was only 330
million, which has rapidly increased into enormous
figure of 1.3 billion as on date. The Citizenship
Act, 1955 was enacted by the Parliament for the
acquisition and determination of Indian Citizenship.
Our constitutional framers have provided for adult
franchise to every adult citizens. Election Commission
of India had taken steps to provide for an identity
4card to each person to enable him to exercise his
franchise. The Citizenship Act, 1955 was amended by
the Act 6 of 2004 whereas Section 14A was inserted
providing that Central Government may compulsorily
register every citizen of India and issue national
identity card to him. The Planning Commission of the
Government of India conceived a Unique Identification
Project for providing a Unique Identity Number for
each resident across the country, which was initially
envisaged primarily as the basis for the efficient
delivery of welfare services.
5. At first, in the year 2006, administrative
approval was granted for the project “Unique Identity
for BPL Families”. A Process Committee was
constituted, which prepared a strategic vision on the
Unique Identification Project. The Process Committee
furnished a detailed proposal to the Planning
Commission in the above regard. The Prime Minister
approved the constitution of an empowered Group of
Ministers to collate the two spheres, the national
5population register under the Citizenship Act, 1955
and the Unique Identification Number Project of the
Department of Information Technology. The empowered
Group of Ministers recognised the need for creating an
identity related resident database and to establish an
institutional mechanism, which shall own the database
and shall be responsible for its maintenance and
updations on ongoing basis. The empowered Group of
Ministers held various meetings to which inputs were
provided from different sources including Committee of
Secretaries. The recommendation of empowered Group of
Ministers to constitute Unique Identification
Authority of India (hereinafter referred to as
“UIDAI”) was accepted with several guidelines laying
down the roles and responsibilities of the UIDAI. The
UIDAI was constituted under the aegis of Planning
Commission of India. The Notification dated
28.01.2009 was issued constituting the UIDAI,
providing for its composition, roles and
responsibilities.
6
6. In the year 2010, a bill namely the National
Identification Authority of India Bill, 2010 providing
for the establishment of the National Identification
Authority of India for the purpose of issuing
identification numbers to individuals residing in
India and to certain other classes of individuals,
manner of authentication of such individuals to
facilitate access to benefits and services to which
they are entitled and for matters connected therewith
or incidental thereto was introduced. The Bill was
pending in the Parliament when the first Writ Petition
i.e. Writ Petition (C) No. 494 of 2012 – Justice K.S.
Puttaswamy (Retd.) Anr. Vs. Union of India Ors.
Was filed. The Writ Petition under Article 32 was
filed on the ground that fundamental rights of the
innumerable citizens of India namely Right to Privacy
falling under Article 21 of the Constitution of India
are adversely affected by the Executive action of the
Central Government proceeding to implement an
Executive order dated 28.01.2009 and thereby issuing
Aadhaar numbers to both citizens as also illegal
7immigrants presently illegally residing in the
country. While the Bill namely “National
Identification Authority of India Bill, 2010”, which
had already been introduced in the Rajya Sabha on
03.12.2010 and referred to the Standing Committee, had
been rejected. The Writ Petition prayed for following
reliefs:
(A) ISSUE a writ in the nature of mandamus
restraining the respondents Nos. 1 to 3
from issuing Aadhaar Numbers by way of
implementing its Executive order dated
28.01.2009 (Annexure “P1”) which
tentamount to implementing the provisions
of the National Identification Authority
of India Bill, 2010 pending before the
Parliament until and unless the said Bill
is considered and passed by the
Parliament and becomes an Act of
Parliament.(B) Pass such other order/s as this Hon'ble
Court may deem fit and proper in the
circumstances of the case.7. Writ Petition (C) No. 829 of 2013 Mr. S.G.
Vombatkere Anr. Vs. Union of India Ors., was filed
by Mr. S.G. Vombatkere and Bezwada Wilson questioning
the UID Project and Aadhaar Scheme. The UID Project
and Aadhaar Scheme were contended to be illegal and
8violative of fundamental rights. It was also contended
that the Scheme has no legislative sanction. Various
other grounds for attacking the Scheme were enumerated
in the Writ Petition. Writ Petition (C) No. 833 of
2013 – Ms. Aruna Roy Anr. Vs. Union of India Ors.,
was also filed challenging the UID Scheme. Other Writ
Petitions being Writ Petition (C) No. 932 of 2013 and
Writ Petition (C) No. 37 of 2015 came to be filed
challenging the UID Scheme.
8. S.G. Vombatkere and Bezwada Wilson filed another
Writ Petition (C) No. 220 of 2015 challenging the
exercise of preparation of the National Population
Register. Section 14A of the Citizenship Act, 1955 was
also challenged as void and ultra vires. Petitioners
have referred to earlier Writ Petition (C) No. 829 of
2013 and adopted the grounds already raised in the
earlier Writ Petition. Writ petitioner had also
challenged the collection of confidential biometric
informations, which is neither sanctioned nor
authorised under any Act or Rules.
9
9. The Parliament enacted the Act, 2016, which
contains following preamble:
“An Act to provide for, as a good governance,
efficient, transparent, and targeted delivery
of subsidies, benefits and services, the
expenditure for which is incurred from the
Consolidated Fund of India, to individuals
residing in India through assigning of unique
identity numbers to such individuals and for
matters connected therewith or incidental
thereto.”10. The Writ Petition (C) No. 231 of 2016 Shri Jairam
Ramesh Vs. Union of India Ors., was filed by Shri
Jairam Ramesh seeking a direction declaring the Act,
2016 as unconstitutional, null and void and ultra
vires. Writ Petition (C) No. 797 of 2016 S.G.
Vombatkere Ors. Vs. Union of India Ors., was also
filed by S.G. Vombatkere and Bezwada Wilson
challenging the Act, 2016. The petitioners have also
referred to earlier Writ Petition (C) No. 829 of 2013
and Writ Petition (C) No. 220 of 2015. The writ
petitioners alleged various grounds for challenging
the Act, 2016. Apart from seeking a direction to
declare the Act, 2016 ultra vires, unconstitutional
and null and void, prayers for declaring various
10Sections of Act, 2016 as ultra vires, unconstitutional
and null and void were also made. The writ petitioners
claimed lots of reliefs from a to w, it is useful to
quote the reliefs a to d, which are to the following
effect:
"a) Issue a Writ, order or direction in the
nature of Certiorari or any other
appropriate writ/order/direction
declaring that the Aadhaar (Targeted
Delivery of Financial and Other
Subsidies, Benefits and Services) Act,
2016 is ultra vires, unconstitutional,
null and void and in particular violate
Articles 14, 19 and 21 of the
Constitution of India;b) Issue a Writ, order or direction in the
nature of Certiorari or any other
appropriate writ/order/directiondeclaring that sections 2(h), 2(l), 2(m),
2(v), 3, 5, 6, 7, 8, 9, 10, Chapter IV,
Section 23 read with Section 54, Section
29, Section 30, Section 33, Section 47,
Section 57 and Section 59 of the Aadhaar
(Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) Act,
2016 are ultra vires, unconstitutional,
null and void and in particular violate
Articles 14, 19, 20(3) and 21 of the
Constitution of India;c) Issue a Writ, order or direction in the
nature of Certiorari or any other
appropriate writ/order/direction
declaring that the right to privacy is a
fundamental right guaranteed under Part
III of the Constitution of India;11
d) Issue a Writ, order or direction in the
nature of Certiorari or any other
appropriate writ/order/direction
declaring that no person may be deprived
of receiving any financial subsidy or
other subsidy or benefit or services from
the State on the ground that he or she
does not have an Aadhaar number;”11. Writ Petition (C) No. 342 of 2017 Shantha Sinha
Anr. Vs. Union of India Anr. Was filed challenging
the Act, 2016. Apart from seeking a direction to
declare various Sections of Act, 2016 as null and
void, writ petitioners also prayed for a direction
declaring Sections 2(h), 2(l), 2(m), 2(v), 3, 5, 6, 7,
8, 9, 10, Chapter IV, Section 23 read with Section 54,
Section 29, Section 30, Section 33, Section 47,
Section 57 and Section 59 of the Act, 2016 as ultra
vires, unconstitutional and null and void. Writ
Petition (Civil) NO. 372 of 2017 Shankar Prasad
Dangi Vs. Bharat Cooking Coal Limited Another, was
filed by Shankar Prasad Dangi, who claims to be
employed under the Bharat Cooking Coal Limited.
Petitioner filed the writ petition seeking a mandamus
directing the respondents not to compel the petitioner
12to submit the Aadhaar Card copy. The petitioner
placed reliance on Order of this Court dated
14.09.2016 in Writ Petition (C) No. 686 of 2016.
Writ Petition (C) No. 841 of 2017 has also been filed
by State of West Bengal challenging various
notifications issued under Section 7 of the Act, 2016.
The petitioner also sought a direction declaring that
no person may be deprived of receiving any benefit or
services from the State on the ground that he or she
does not have an Aadhaar number or Aadhaar enrolment.
Writ Petition (C) No. 1058 of 2017 – Mathew Thomas Vs.
Union of India Ors. has been filed challenging the
Act, 2016. The writ petitioner also prayed for
declaring Prevention of Money Laundering Rules (Second
Amendment) 2017 as violative of Articles 14, 19 and 21
of the Constitution. Section 139AA of the Income Tax
Act, 1961 was also prayed to be declared as violative
of Articles 14, 19 and 21 of the Constitution.
12. Writ Petition (C) No. 966 of 2017 – Raghav Tankha
Vs. Union of India through its Secretary Ors. has
been filed seeking following prayers:
13"a) Issue a Writ of Mandamus or any other
appropriate writ, order or direction
under Article 32 of the Constitution of
India, directing the Respondents to
declare that Aadhaar is not mandatory for
the purpose of authentication while
obtaining a mobile connection; or the re
verification of Subscribers, being
completely illegal, arbitrary and mala
fide; and/orb) Issue a Writ of Mandamus or any other
appropriate writ, order or direction
under Article 32 of the Constitution of
India, directing the Respondents Number 2
to 6, to take immediate steps in the
present situation, for restraining and
banning the transfer of data from UIDAI
to Private Telecom Service Providers and
Aadhaar being made the only option of
authentication; and/or”13. Writ Petition (C) No. 1014 of 2017 – M.G.
Devasahayam and Ors. Vs. Union of India Anr. has
been filed, where following prayers have been made:
“a) This Hon'ble Court may be pleased to
issue an appropriate writ, order or
direction declaring Rule 9 of the
Prevention of Money Laundering Rules,
2017 as amended by the Prevention of
Money Laundering (Second Amendment)
Rules, 2017 as ultra vires,
unconstitutional, null and void and in
particular violate Articles 14, 19 and 21
of the Constitution of India;b) This Hon'ble Court may be pleased to
issue an appropriate writ, order or
14direction declaring that bank accounts
will not be denied or ceased on the basis
that he or she does not have an Aadhaar
number;c) This Hon'ble Court may be pleased to
issue an appropriate writ, order or
direction in the nature of mandamus
against the Respondents directing them to
forthwith forbear from implementing or
acting pursuant to or in implementation
of Rule 9 of the Prevention of Money
Laundering Rules, 2017 as amended by the
Prevention of Money Laundering (Second
Amendment) Rules, 2017;d) This Hon'ble Court may be pleased to
issue an appropriate writ, order or
direction in the nature of mandamus
against the Respondents directing them to
forthwith clarify by issuing appropriate
announcements, circulars and/or
directions that no citizen of India is
required to obtain an Aadhaar
number/Aadhaar card and that the program
under the Aadhaar Act is entirely
voluntary even for opening or maintaining
the bank accounts and carrying financial
transactions;e) This Hon'ble Court may be pleased to
award costs relating to the present
petition to the petitioners; andf) This Hon'ble Court may be pleased to
issue any other writ/order/direction in
the nature of mandamus as this Hon'ble
Court may deem fit an proper in the
circumstances of the case.”14. Writ Petition (C) No. 1002 of 2017 – Dr. Kalyani
15Menon Sen Vs. Union of India and Others, also sought
declaration that Rule 2(b) of the Prevention of Money
Laundering (Maintenance of Records) Second Amendment
Rules, 2017 is ultra vires. Circular dated 23.03.2017
issued by the Department of Telecommunication was also
sought to be declared as ultra vires,
unconstitutional, null and void. A further direction
was sought declaring that pursuant to the Circular
dated 23.03.2017, the mobile phone numbers of
subscribers will not be made inoperational, and
future applicants will not be coerced to submit their
Aadhaar numbers. Certain other reliefs have also been
claimed in the writ petition. Writ Petition (C) No.
1056 of 2017 – Nachiket Udupa Anr. Vs. Union of
India Ors. has been filed challenging the Act, 2016
and with other prayers, which is as follows:
A. Issue a Writ of Declaration and
Mandamus or any other appropriate Writ,
Direction, Order or such other
appropriate remedy to declare the
Aadhaar (Targeted Delivery of Financial
and Other Subsidies, Benefits and
Services) Act, 2016 [ACT No. 18 of 2016]
as illegal and violative of Articles 14,
19(1)(a) and 21 of the Constitution of
India;16
B. In the alternative to Prayer (A),
issue a Writ of Declaration and
Mandamus or any other appropriate
Writ, Direction, Order or such other
appropriate remedy against Respondent
No. 3 to provide 'optout' or process
to delete identity information from
Central Identities Data Repository at
the option of Aadhaar Number Holders;C Issue a Writ of Declaration and
Mandamus or any other appropriate
Writ, Direction, Order or such other
appropriate remedy to declare the
Aadhaar (Enrolment and Update)
Regulations, 2016 being illegal, and
ultra vires the Aadhaar Act and
violative of Articles 14 and 21 of the
Constitution of India;D. Issue a Writ of Declaration and
Mandamus or any other appropriate
Writ, Direction, Order or such other
appropriate remedy to declare the
Aadhaar (Authentication) Regulations,
2016 as being illegal and ultra vires
the Aadhaar Act and violative of
Articles 14 and 21 of the Constitution
of India;E. Issue a Writ of Declaration and
Mandamus or any other appropriate
Writ, Direction, Order or such other
appropriate remedy to declare the
Aadhaar (Data Security) Regulations,
2016 as being illegal, and ultra vires
the Aadhaar Act and violative of
Articles 14 and 21 of the Constitution
of India;F. Issue a Writ of Declaration and
17Mandamus or any other appropriate
Writ, Direction, Order or such other
appropriate remedy to declare the
Aadhaar (Sharing of Information)
Regulations, 2016 as being illegal,
and ultra vires the Aadhaar Act and
violative of Articles 14 and 21 of
the Constitution of India;G. Issue a Writ of Declaration and
Mandamus or any other appropriate
Writ, Direction, Order or such other
appropriate remedy to declare the
Direction issued by Respondent No. 2 on
23.03.2017 vide File No. 800262/2016
AS.II, as being illegal, ultra vires
the Aadhaar Act and violative the
Articles 14, 19(1)(a) and 21, of the
Constitution;H. In the alternative to Prayer (G)
above, issue a Writ of Declaration
and Mandamus or any other appropriate
Writ, Direction, Order or such other
appropriate remedy to Respondent No. 2
to prohibit all Telecom Service
Providers from storing, retaining,
making copies or in any manner dealing
with Aadhaar Number, biometric
information or any demographic
information received from Respondent
No. 3 in the process of authentication
and/or identity verification of mobile
numbers;I. Pass such further and other orders as
this Hon'ble Court may deem fit and
proper in the instant facts and
circumstances.”15. There are seven Transfer Cases/Transfer Petitions
18to be heard alongwith the Writ Petitions filed under
Article 32, where the issues pertaining to UID Scheme
and other related issues were also raised before
different High Courts. Four Transfer Applications
have been filed by Indian Oil Corporation Limited
praying for transfer of different writ petitions
pending in different High Courts to be heard alongwith
Writ Petition (C) No. 494 of 2012 – Justice K.S.
Puttaswamy (Retd.) Anr. Vs. Union of India Ors.,
which was considering the same issues. This Court had
passed order in few transfer petitions allowing the
same and issued certain directions, rest of transfer
petitions are also allowed.
16. One Transfer Petition has also been filed by Union
of India for transferring Writ Petition (C) No. 2764
of 2013 – Sri V. Viswanandham Vs. Union of India
Ors., pending in the High Court of Hyderabad. It is
not necessary to notice various issues in the pending
different writ petitions, which were sought to be
transferred by above transfer petitions/transfer
19cases. Issues pending in different High Courts were
more or less same, which have been raised in leading
Writ Petition (C) No. 494 of 2012 Justice K.S.
Puttaswamy (Retd.) Anr. Vs. Union of India Ors.
and other writ petitions, which were entertained and
pending in this Court. Special Leave Petition (Crl.)
No. 2524 of 2014 has been filed by UIDAI and Anr.
challenging the interim order dated 18.03.2014 passed
by High Court of Bombay at Goa in Criminal Writ
Petition No. 10 of 2014 – Unique Identification
Authority of India Through its Director General Anr.
Vs. Central Bureau of Investigation. On an application
filed by the Central Bureau of Investigation, a
Magistrate passed an order on 22.10.2013 directing the
UIDAI to provide certain data with regard to a case of
a rape of seven years old child. The Bombay High
Court at Goa passed an order dated 18.03.2014 issuing
certain interim directions, which were challenged by
UIDAI in the aforesaid special leave petition. This
Court passed an interim order on 24.03.2014 staying
the order passed by Bombay High Court at Goa. This
20Court also by the interim order restrained the UIDAI
to transfer any biometric information of any person
who has been allotted the Aadhaar number to any other
agency without his consent in writing. This special
leave petition was directed to be listed alongwith
Writ Petition (C) No. 494 of 2012.
17. This Court in Writ Petition (C) No. 494 of 2012
has issued various Interim Orders dated 23.09.2013,
24.03.2014, 16.03.2015, 11.08.2015 and 15.10.2015.
18. Seven Contempt Petitions have been filed. Out of
seven, five contempt petitions have been filed
alleging violation of the aforesaid interim orders and
praying for issuing proceedings against the
respondents contemnor for willful disobeying the
interim orders. One Contempt Petition (C) No. 674 of
2015 in W.P.(C) No.829 of 2013 has been filed for
issuing proceedings against the respondents contemnor
for wilfully disobeying the orders dated 23.09.2013,
24.03.2014 and 16.03.2015 passed by this Court. The
21other Contempt Petition (C) No. 34 of 2018 in W.P.(C)
No. 1014 of 2017 has been filed against the respondent
contemnors for wilfully disobeying the order dated
03.11.2017 passed by this Court in the aforesaid writ
petition. All the contempt applications are pending
without any order of issuing notice in the contempt
petitions.
19. Writ Petition (C) No.494 of 2012 : Justice K.S.
Puttaswamy(Retd.) and another vs. Union of India and
others, has been treated as leading petition wherein
various orders and proceedings have been taken, few of
such orders and proceedings also need to be noted. An
interim order dated 23.09.2013 was passed in Writ
Petition (C) No.494 of 2012 which is to the following
effect:
“Issue notice in W.P.(C) No. 829/2013.
Application for deletion of the name of
petitioner no. 1 in T.P.(C) Nos. 47 of 2013
is allowed.T.P.(C)nos. 4748 of 2013 and T.P.(C) No.
476 of 2013 are allowed in terms of the
signed order.22
All the matters require to be heard
finally. List all matters for final hearing
after the Constitution Bench is over.In the meanwhile, no person should suffer
for not getting the Aadhaar card inspite of
the fact that some authority had issued a
circular making it mandatory and when any
person applies to get the Aadhaar Card
voluntarily, it may be checked whether that
person is entitled for it under the law and
it should not be given to any illegal
immigrant.”20. By order dated 26.11.2013 all the States and Union
Territories were impleaded as respondents to give
effective directions. Interim order passed earlier was
also continued. On 24.03.2014 following order was
passed in SLP(Crl.) No.2524 of 2014:
“Issue notice.
In addition to normal mode of service,
dasti service, is permitted.Operation of the impugned order shall
remain stayed.In the meanwhile, the present petitioner
is restrained from transferring any biometric
information of any person who has been
allotted the Aadhaar number to any other
agency without his consent in writing.More so, no person shall be deprived of
any service for want of Aadhaar number in
case he/she is otherwise eligible/entitled.
All the authorities are directed to modify
their forms/circulars/likes so as to not
compulsorily require the Aadhaar number in
23order to meet the requirement of the interim
order passed by this Court forthwith.Tag and list the matter with main matter
i.e. WP(C) No.494/2012.”21. This court on 16.03.2015 in Writ Petition (C)
No.494 of 2012 directed both the Union of India and
the States and all their functionaries should adhere
to the order dated 23.09.2013.
22. A threeJudge Bench on 11.08.2015 passed an order
referring the matter to a Bench of appropriate
strength. After reference was made on a prayer made by
the petitioners, following interim directions were
also passed by the Bench :
“Having considered the matter, we are of
the view that the balance of interest would
be best served, till the matter is finally
decided by a larger Bench if the Union of
India or the UIDA proceed in the following
manner:1. The Union of India shall give wide
publicity in the electronic and print media
including radio and television networks that
it is not mandatory for a citizen to obtain
an Aadhaar card;2. The production of an Aadhaar card will not
be condition for obtaining any benefits
otherwise due to a citizen;24
3. The Unique Identification Number or the
Aadhaar card will not be used by the
respondents for any purpose other than the
PDS Scheme and in particular for the purpose
of distribution of food grains, etc. and
cooking fuel, such as kerosene. The Aadhaar
card may also be used for the purpose of the
LPG Distribution Scheme;4. The information about an individual
obtained by the Unique 15 Identification
Authority of India while issuing an Aadhaar
card shall not be used for any other purpose,
save as above, except as may be directed by a
Court for the purpose of criminal
investigation. Ordered accordingly.”23. A Constitution Bench of five Judges on 15.10.2015
passed an order after hearing application filed by the
Union of India for seeking certain
clarification/modification in the earlier order dated
11.08.2015, part of order, which is relevant for the
present case is as follows:
“3. After hearing the learned Attorney
General for India and other learned senior
counsels, we are of the view that in
paragraph 3 of the Order dated 11.08.2015, if
we add, apart from the other two Schemes,
namely, P.D.S. Scheme and the L.P.G.Distribution Scheme, the Schemes like The
Mahatma Gandhi National Rural Employment
Guarantee Scheme 12 (MGNREGS), National
Social Assistance Programme (Old Age
Pensions, Widow Pensions, Disability
Pensions) Prime Minister’s Jan Dhan Yojana
(PMJDY) and Employees’ Provident Fund
25Organisation (EPFO) for the present, it would
not dilute earlier order passed by this
Court. Therefore, we now include the
aforesaid Schemes apart from the other two
Schemes that this Court has permitted in its
earlier order dated 11.08.2015.5. We will also make it clear that the
Aadhaar card Scheme is purely voluntary and
it cannot be made mandatory till the matter
is finally decided by this Court one way or
the other.”24. A threeJudge Bench of this Court in its reference
order dated 11.08.2015 noticed that these cases raise
farreaching questions of importance, which involves
interpretation of the Constitution. Two earlier
decisions of this Court, i.e., M.P. Sharma Others
Vs. Satish Chandra Others, 1954 AIR SC 300, rendered
by eight Judges and another judgment rendered by six
Judges Bench in Kharak Singh Vs. State of U.P.
Others, AIR 1963 SC 1295 were noticed and it was
observed that in the event the observations made in
the above two judgments are to be read literally and
accepted as the law of this country, the fundamental
rights guaranteed under the Constitution of India and
more particularly right to liberty under Article 21
would be denuded of vigour and vitality. The three
26Judge Bench observed that to give quietus to the kind
of controversy raised in this batch of cases once for
all, it is better that the ratio decidendi of M.P.
Sharma (supra) and Kharak Singh (supra) is scrutinized
and the jurisprudential correctness of the subsequent
decisions of this Court where the right to privacy is
either asserted or referred be examined and
authoritatively decided by a Bench of appropriate
strength.
25. By order dated 18.07.2017, a Constitution Bench
considered it appropriate that the issue be resolved
by a Bench of Nine Judge. Following order was passed
on 18.07.2017 by a Constitution Bench:
“During the course of the hearing today,
it seems that it has become essential for us
to determine whether there is any fundamental
right of privacy under the Indian
Constitution. The determination of this
question would essentially entail whether the
decision recorded by this Court in M.P.Sharma and Ors. vs. Satish Chandra, District
Magistrate, Delhi and Ors. 1950 SCR 1077 by
an eightJudge Constitution Bench, and also,
in Kharak Singh vs. The State of U.P. and
Ors. 1962 (1) SCR 332 by a sixJudge
Constitution Bench, that there is no such
fundamental right, is the correct expression
of the constitutional position.27
Before dealing with the matter any
further, we are of the view that the issue
noticed hereinabove deserves to be placed
before the nineJudge Constitution Bench.
List these matters before the NineJudge
Constitution Bench on 19.07.2017.Liberty is granted to the learned counsel
appearing for the rival parties to submit
their written briefs in the meantime.”26. A nineJudge Constitution Bench proceeded to hear
and decide all aspects of right of privacy as
contained in the Constitution of India.
27. Dr. D.Y. Chandrachud delivered opinion on his
behalf as well as on behalf of Khehar, CJ., Agrawal,
J. and Nazeer, J. Jasti Chelameswar, J., Bobde, J.,
Sapre, J. and Kaul, J. also delivered concurring, but
separate opinions. The opinion of all the nine Judges
delivered in above cases held that right of privacy is
a right which is constitutionally protected and it is
a part of protection guaranteed under Article 21 of
the Constitution of India. Explaining the essential
nature of privacy, Dr. D.Y. Chandrachud, J. in
paragraphs 297 and 298 laid down following:
“297. What, then, does privacy postulate?
Privacy postulates the reservation of a
28private space for the individual, described
as the right to be let alone. The concept is
founded on the autonomy of the individual.The ability of an individual to make choices
lies at the core of the human personality.The notion of privacy enables the individual
to assert and control the human element which
is inseparable from the personality of the
individual. The inviolable nature of the
human personality is manifested in the
ability to make decisions on matters intimate
to human life. The autonomy of the individual
is associated over matters which can be kept
private. These are concerns over which there
is a legitimate expectation of privacy. The
body and the mind are inseparable elements of
the human personality. The integrity of the
body and the sanctity of the mind can exist
on the foundation that each individual
possesses an inalienable ability and right to
preserve a private space in which the human
personality can develop. Without the ability
to make choices, the inviolability of the
personality would be in doubt. Recognising a
zone of privacy is but an acknowledgment that
each individual must be entitled to chart and
pursue the course of development of
personality. Hence privacy is a postulate of
human dignity itself. Thoughts and
behavioural patterns which are intimate to an
individual are entitled to a zone of privacy
where one is free of social expectations. In
that zone of privacy, an individual is not
judged by others. Privacy enables each
individual to take crucial decisions which
find expression in the human personality. It
enables individuals to preserve their
beliefs, thoughts, expressions, ideas,
ideologies, preferences and choices against
societal demands of homogeneity. Privacy is
an intrinsic recognition of heterogeneity, of
the right of the individual to be different
29and to stand against the tide of conformity
in creating a zone of solitude. Privacy
protects the individual from the searching
glare of publicity in matters which are
personal to his or her life. Privacy attaches
to the person and not to the place where it
is associated. Privacy constitutes the
foundation of all liberty because it is in
privacy that the individual can decide how
liberty is best exercised. Individual dignity
and privacy are inextricably linked in a
pattern woven out of a thread of diversity
into the fabric of a plural culture.298. Privacy of the individual is an
essential aspect of dignity. Dignity has both
an intrinsic and instrumental value. As an
intrinsic value, human dignity is an
entitlement or a constitutionally protected
interest in itself. In its instrumental
facet, dignity and freedom are inseparably
intertwined, each being a facilitative tool
to achieve the other. The ability of the
individual to protect a zone of privacy
enables the realisation of the full value of
life and liberty. Liberty has a broader
meaning of which privacy is a subset. All
liberties may not be exercised in privacy.Yet others can be fulfilled only within a
private space. Privacy enables the individual
to retain the autonomy of the body and mind.The autonomy of the individual is the ability
to make decisions on vital matters of concern
to life. Privacy has not been couched as an
independent fundamental right. But that does
not detract from the constitutional
protection afforded to it, once the true
nature of privacy and its relationship with
those fundamental rights which are expressly
protected is understood. Privacy lies across
the spectrum of protected freedoms. The
guarantee of equality is a guarantee against
arbitrary State action. It prevents the State
30from discriminating between individuals. The
destruction by the State of a sanctified
personal space whether of the body or of the
mind is violative of the guarantee against
arbitrary State action. Privacy of the body
entitles an individual to the integrity of
the physical aspects of personhood. The
intersection between one’s mental integrity
and privacy entitles the individual to
freedom of thought, the freedom to believe in
what is right, and the freedom of self
determination. When these guarantees
intersect with gender, they create a private
space which protects all those elements which
are crucial to gender identity. The family,
marriage, procreation and sexual orientation
are all integral to the dignity of the
individual. Above all, the privacy of the
individual recognises an inviolable right to
determine how freedom shall be exercised. An
individual may perceive that the best form of
expression is to remain silent. Silence
postulates a realm of privacy. An artist
finds reflection of the soul in a creative
endeavour. A writer expresses the outcome of
a process of thought. A musician contemplates
upon notes which musically lead to silence.
The silence, which lies within, reflects on
the ability to choose how to convey thoughts
and ideas or interact with others. These are
crucial aspects of personhood. The freedoms
under Article 19 can be fulfilled where the
individual is entitled to decide upon his or
her preferences. Read in conjunction with
Article 21, liberty enables the individual to
have a choice of preferences on various
facets of life including what and how one
will eat, the way one will dress, the faith
one will espouse and a myriad other matters
on which autonomy and selfdetermination
require a choice to be made within the
privacy of the mind. The constitutional right
31to the freedom of religion under Article 25
has implicit within it the ability to choose
a faith and the freedom to express or not
express those choices to the world. These are
some illustrations of the manner in which
privacy facilitates freedom and is intrinsic
to the exercise of liberty. The Constitution
does not contain a separate article telling
us that privacy has been declared to be a
fundamental right. Nor have we tagged the
provisions of Part III with an alphasuffixed
right to privacy: this is not an act of
judicial redrafting. Dignity cannot exist
without privacy. Both reside within the
inalienable values of life, liberty and
freedom which the Constitution has
recognised. Privacy is the ultimate
expression of the sanctity of the individual.
It is a constitutional value which straddles
across the spectrum of fundamental rights and
protects for the individual a zone of choice
and selfdetermination.”28. Privacy has been held to be an intrinsic element
of the right to life and personal liberty Under
Article 21 and has a constitutional value which is
embodied in the fundamental freedoms embedded in Part
III of the Constitution. It was further held that like
the right to life and liberty, privacy is not
absolute. The limitations which operate on the right
to life and personal liberty would operate on the
right to privacy. Any curtailment or deprivation of
that right would have to take place under a regime of
32law. The procedure established by law must be fair,
just and reasonable.
29. The nineJudge Constitution Bench also noticed the
context of right of privacy under the international
covenants. The protection of right of privacy as
developed in U.K. decision, decisions of US Supreme
Court, constitutional right to privacy in South
Africa, constitutional right to privacy in Canada,
privacy under European convention on human rights and
under Charter of fundamental rights of European Union
were considered with reference to decision rendered by
foreign courts.
30. Justice D.Y. Chandradhud in his judgment traced
the right of privacy from the judgments of this Court
which were rendered for the last five decades.
Referring to International Law on the subject,
following observations were made by Justice D.Y.
Chandradhud, J.:
“103...In the view of this Court,
international law has to be construed as a
33part of domestic law in the absence of
legislation to the contrary and, perhaps more
significantly, the meaning of constitutional
guarantees must be illuminated by the content
of international conventions to which India
is a party. Consequently, as new cases
brought new issues and problems before the
Court, the content of the right to privacy
has found elaboration in these diverse
contexts.”31. All contours of the right of privacy having been
noticed with all its dimensions, precautions and
safeguards to be applied to protect fundamental rights
guaranteed under the Constitution of India, we while
proceeding to decide the issues raised herein have to
proceed in the light of nineJudge Constitution Bench
of this Court as noticed above.
32. We have been manifestly benefited by able and
elaborate submissions raised before us by many eminent
learned senior counsel appearing for both the parties.
Learned counsel for both the parties have advanced
their submissions with clarity, conviction and lot of
persuasions. On occasions very passionate arguments
were advanced to support the respective submissions.
3433. Different aspects of the case have been taken up
and advanced by different counsel as per understanding
between them which enlightened the Court on varied
aspects of the case. The submissions have been
advanced on behalf of the petitioners by learned
senior Advocates, namely, Shri Kapil Sibal, Shri Gopal
Subramanium, Shri P. Chidambaram, Shri Shyam Divan,
Shri K.V. Viswanathan, Shri Neeraj Kishan Kaul, Ms.
Meenakshi Arora, Shri C.U. Singh, Shri Anand Grover,
Shri Sanjay R. Hegde, Shri Arvind P. Datar, Shri
V.Giri, Shri Sajan Poovayya and Shri P.V. Surendra
Nath. A large number of other counsel also assisted
us including Mr. Gopal Sankaranarayanan. On behalf of
respondents arguments were led by the learned Attorney
General, Shri K.K. Venugopal. We have also heard Shri
Tushar Mehta, Additional Solicitor General, Shri
Rakesh Dwivedi, learned senior counsel and Shri Zohaib
Hossain.
34. We also permitted Dr. Ajay B. Pandey, Chief
Executive Officer, UIDAI to give a power presentation
35to explain actual working of the system. After the
power presentation was presented by Dr. Pandey in the
presence of the learned counsel for the parties,
learned counsel have also thereafter raised certain
questions in respect of the power presentation, which
the respondents during submissions have tried to
explain. In view of the enormity of submissions raised
by the different learned counsel appearing for the
petitioners, we proceed to notice different part of
submissions together. As noted above writ petitions
have been filed at two stages, firstly, when UIDAI
Scheme was being impleaded by the Executive order
dated 28.01.2009. Secondly, challenge was raised when
Act, 2016 was enacted. The challenge to the Scheme
dated 24.01.2009 contained almost same grounds on
which Act, 2016 has been attacked. Additional ground
to challenge the Scheme was that Scheme having not
been backed by law, the entire exercise was
unconstitutional and violative of fundamental rights
guaranteed under the Constitution of India and
deserved to be set aside. The Act, 2016 having enacted
36and now statutory scheme is in place, we shall first
proceed to notice the submissions attacking the Act,
2016 which challenge has been substantial and
elaborately raised before us.
Petitioner's Submissions
35. The submissions advanced by different learned
counsel for the petitioners instead of noticing
individually are being noted together in seriatim,
which are as follows:
36. The Aadhaar project initiated by Executive
notification dated 28.01.2009 as well as impugned Act,
2016 violates Article 21. The constitutional rights
of a person protected under Articles 19 and 21 of the
Constitution is violated as individuals are compelled
to part with their demographic and biometric
information at the point of collection. Biometric
data is part of one's body and control over one's body
lies on the very centre of the Right of Privacy.
Decisional privacy allows individual to make a
37decision about their own body and is an aspect of
right of selfdetermination. The Aadhaar Project
including the Aadhaar Act violate the informational
privacy. Data collection at the enrolment centres,
the Data retention at Central Identities Data
Repositories (CIDR), usage and sharing of data
violates Right of Privacy. There is complete absence
of safeguards at the stage of collection, retention
and use of data. Act, 2016 and Regulations framed
thereunder lack safeguards to secure sensitive
personal data of a person.
37. The Aadhaar project including Act, 2016 creates an
architecture for pervasive surveillance, which again
violate fundamental Right to Privacy. Personal data
collected under the Executive scheme dated 28.01.2009
was without any individual's consent. The Act, 2016
although contemplate that enrolment under Aadhaar is
voluntary but in actual working of the Act, it becomes
defacto compulsory. The Act, 2016 does not pass the
threefold test as laid down by Nine Judges Bench in
38Privacy Judgment K.S. Puttaswamy Vs. Union of India,
(2017) 10 SCC 1, hereinafter referred to as
“Puttaswamy case”. The Threefold test laid down in
Puttaswamy's case are:
(i) legality, which postulates the
existence of law;
(ii) need, defined in terms of a legitimate
state aim; and
(iii) proportionality which ensures a
rational nexus between the objects and
the means adopted to achieve them;
38. It is submitted that a law to pass under Article
21 should be a law according to procedure established
by law. The Act, 2016 violates both Article 14 and
Article 21 of the Constitution of India. A legitimate
State aim, which ensure that nature and content of the
law, which imposes the restriction falls within the
reasonable restrictions mandated by Article 14 is also
not fulfilled. State has not been able to discharge
its burden that Aadhaar project has been launched for
39a legitimate State aim. The third requirement, which
require that the means that are adopted by the
legislature are proportional to the object sought to
be fulfilled by the law is also not fulfilled since
the provisions of the Act and Regulations framed
thereunder does not satisfy the Proportionality Test.
The various provisions of Act, 2016 and Regulations
framed thereunder are unconstitutional. Section 6 of
the Act, 2016 is unconstitutional inasmuch as it
enable the respondents to continually compel residents
to periodically furnish demographic and biometric
information. Section 7 of the Act, 2016 is
unconstitutional inasmuch as it seeks to render the
constitutional and statutory obligations of the State
to provide benefits, subsidies and services,
conditional upon an individual bartering his or her
biometric and demographic information. Section 8 is
unconstitutional since it enables tracking, tagging
and profiling of individuals through the
authentication process. Section 8 delineate a regime
of surveillance, which enables persons' physical
40movements to be traced. Section 9 of the Act, 2016 is
also unconstitutional inasmuch as the Aadhaar number
is de facto serving as proof of citizenship and
domicile. The provisions of Chapter IV, i.e.,
Sections 11 to 33 are ultra vires and
unconstitutional. The Constitution does not permit
the establishment of an authority that in turn through
an invasive programme can claim every Indian
citizen/resident to a central data bank and maintain
lifelong records and logs of that individual.
Sections 23 and 54 of the Act, 2016 are also
unconstitutional on the ground of excessive
delegation. Section 29 of the Act, 2016 is also
liable to be struck down inasmuch as it permits
sharing of identity information. Section 33 is
unconstitutional inasmuch as it provides for the use
of the Aadhaar data base for police investigation
pursuant to an order of a competent court. Section 33
violates the protection against selfincrimination as
enshrined under Article 20(3) of the Constitution of
India. Furthermore, Section 33 does not afford an
41opportunity of hearing to the concerned individual
whose information is sought to be released by the
UIDAI pursuant to the court's order. This is contrary
to the principles of natural justice. Section 47 is
also unconstitutional inasmuch as it does not allow an
individual citizen who finds that there is a violation
of the Act, 2016 to initiate the criminal process.
Section 48, which empowers the Central Government to
supersede UIDAI is vague and arbitrary.
39. Elaborating submission with regard to Section 7,
it is submitted that Section 7 is unconstitutional and
violative of Article 14 making Aadhaar mandatory,
which has no nexus with the subsidies, benefits and
services. A person cannot be forced into parting with
sensitive personal information as a condition for
availing benefits or services. Section 7 also falls
foul of Article 14 since firstly such mandatory
authentication has caused, and continues to cause,
exclusion of the most marginalised sections of
society; and secondly, this exclusion is not simply a
question of poor implementation that can be
42administratively resolved, but stems from the very
design of the Act, i.e. the use of biometric
authentication as the primary method of
identification. There is large scale exclusion to the
mostly marginalised society not being able to identify
themselves by identification process. There is
sufficient material on record to indicate general
deprivation, which itself is sufficient to struck down
Section 7 of the Act.
40. Elaborating submission on unconstitutionality of
Section 57, it is contended that Section 57 allows an
unrestricted extension of the Aadhaar information to
users who may be Government agencies or private sector
operators. Section 57 enables commercial exploitation
of an individual's biometrics and demographic
information by the respondents as well as private
entities. The provision also ensures creation of a
surveillance society, where every entity assists the
State to snoop upon an Aadhaar holder. The use of
Aadhaar infrastructure by private entities is
unconstitutional.
43
41. Elaborating submissions on Section 59, it is
contended that Section 59 is unconstitutional inasmuch
as it seeks to validate all action undertaken by the
Central Government pursuant to the notification dated
28.01.2009. Enrolment in pursuance of notification
dated 28.01.2009 having been done without an informed
consent amounts to deprivation of the intimate
personal information of an individual violating the
fundamental Right of Privacy. All steps taken under
the notification dated 28.01.2009 were not backed by
any law, hence unconstitutional and clearly violate
Article 21, which cannot be cured in a manner as
Section 59 pretend to do.
42. The Act is unconstitutional since it collects the
identify information of children between five to
eighteen years without parental consent. The Aadhaar
architecture adopts foreign technologies, on which
UIDAI does not have any control, exposing data leak
endangering life of people and security of nation.
43. Rule 9 as amended by PMLA Rules, 2017 is
44unconstitutional being violative of Articles 14,
19(1)(g), 21 and 300A of the Constitution of India.
Rule 9 also violates Sections 3, 7 and 51 of the Act,
2016 and ultra vires to the provisions of PMLA Act,
2002.
44. Section 139AA of the Income Tax Act, 1961 is
liable to be struck down as violative of Articles 14,
19(1)(g) and 21 of the Constitution in view of Privacy
Judgment – Puttaswamy (supra).
45. The Mobile Linking Circular dated 23.03.2017
issued by Ministry of Communications, Department of
Telecommunications is ultra vires.
46. The Aadhaar Act, 2016 has wrongly been passed as a
Money Bill. The Aadhaar Act, 2016 is not a Money
Bill. The Speaker of Lok Sabha wrongly certified the
bill as a Money Bill under Article 110 of the
Constitution of India virtually excluding the Rajya
Sabha from legislative process and depriving the
Hon'ble President of his power of return. Clauses
23(2)(g), Section 54(2)(m) and Section 57 of The
45Aadhaar (Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) Bill, 2016 and the
corresponding Sections of the Act, 2016 as notified
clearly do not fall under any of the Clauses of
Article 110 of the Constitution. The Act of Speaker
certifying the bill as a Money Bill is clearly
violation of constitutional provisions. Judicial
Review of decision of Speaker certifying it as Money
Bill is permissible on the ground of illegality. The
Aadhaar Bill being not a money bill and having been
passed by Parliament as a Money Bill, this ground
alone is sufficient to strike down the entire Act,
2016.
47. Learned Attorney General replying the above
submissions of the counsel for the petitioners
submits:
48. In the Privacy Judgment P.S. Puttaswamy case
(supra) all nine Judges uniformly agreed that privacy
is a fundamental right traceable to the right to
liberty under Article 21 of the Constitution and hence
46subject to the same limitations as applicable to the
said Article. It has further been held that right of
privacy is not absolute and is subject to limitations.
Justice D.Y. Chandrachud in his lead judgment laid
down that following three tests are required to be
satisfied for judging the permissible limits of the
invasion of privacy under Article 21 of the
Constitution:
(a) The existence of a law
(b) A legitimate State interest; and
(c) The said Law should pass the test of
proportionality.49. The above tests have also been agreed by other
Judges who have delivered the separate judgment.
Justice J. Chelameswar and Justice A.N. Sapre have
used the test of compelling State interest whereas
Justice R.F. Nariman stated that if this test is
applied, the result is that one would be entitled to
invoke larger public interest in lieu of legitimate
State aim. The legitimate State aim obviously will
lead to public interest, hence in the event test of
47legitimate State aim is fulfilled, the test of public
interest stands fulfilled. After enactment of Act,
2016, the first condition in regard to the existence
of a law stands satisfied. The Act requires only the
bare demographic particulars, while eschewing most
other demographic particulars. The Act further
contains adequate safeguards for protection of
information and preventing abuse through a catena of
offences and penalties. The provisions of Act ensure
that the law is a just, fair and reasonable and not
fanciful, oppressive or arbitrary.
50. The legitimate State interest or a larger public
interest permeates through the Act, 2016 which is
clearly indicated by the following:
A. Preventing the dissipation of subsidies
and social welfare benefits which is
covered by Section 7 of the Aadhaar Act;B. Prevention of black money and money
laundering by imposing a requirement by
law for linking Aadhaar for opening bank
accounts;C. To prevent income tax evasion by
requiring, through an amendment to the
Income Tax Act, that the Aadhaar number
be linked with the PAN; and
48D. To prevent terrorism and protect national
security by requiring that Aadhaar be
linked to SIM cards for mobile phones.”51. The Aadhaar Act, 2016 was enacted with prolonged
deliberations and study. The petitioners have failed
to establish any arbitrariness in the Act. The right
to life under Article 21 is not the right to a mere
animal existence, but the right to live with human
dignity which would include the right to food, the
right to shelter, the right to employment, the right
to medical care, education etc. If these rights are
juxtaposed against the right to privacy, the former
will and prevail over the latter. In so far as
implementation of Aadhaar project prior to coming into
force of Act, 2016, since obtaining an Aadhaar number
or an enrolment number was voluntary, especially
because of the interim orders passed by this Court, no
issue of violation of any right, leave alone a
fundamental right, could arise. The judgments of this
Court in M.P. Sharma and Kharak Singh (supra) being
those of eight Judges and six Judges respectively,
holding that the right to privacy is not a fundamental
49right, the judgments of smaller benches delivered
during the period upto 2016 would be per incuriam, as
a result of which the State need not to have proceeded
on the basis that a law was required for the purpose
of getting an Aadhaar number or an enrolment number.
As a result, the Executive instructions issued for
this purpose would be valid as well as the receipt of
benefits and subsidies by the beneficiaries. In any
view of the matter, Section 59 of the Act protects all
actions taken during the period 2010 until the passing
of the Aadhaar Act in 2016.
52. Learned Attorney General submitted that Aadhaar
Act has rightly been characterised as Money Bill as
understood under Article 110 of the Constitution. The
heart of the Aadhaar Act is Section 7. It is not the
creation of Aadhaar number per se which is the core of
the Act, rather, that is only a means to identify the
correct beneficiary and ensure ‘targeted delivery of
subsidies, benefits and services’, the expenditure for
which is incurred from the Consolidated Fund of India.
50The decision of the Speaker incorporated into a
certificate sent to the President is final and cannot
be the subject matter of judicial review.
53. The decision and certification of the Speaker
being a matter of procedure is included in the Chapter
under the head ‘Legislative Procedure’ which clearly
excluded judicial review. The present issue is
squarely covered by the decisions of this Court.
54. Section 57, which has been attacked as being
untraceable to any of the subclauses of (a) to (f) of
Article 110 cannot be looked at in isolation. The Bill
in its pith and substance should pass the test of
being a Money Bill and not isolated provisions.
55. Learned Additional Solicitor General of India,
Shri Tushar Mehta, also advanced submissions on few
aspects of the matter. On Section 139AA of Income Tax
Act, 1961 it is submitted that petitioners can succeed
only when they demonstrate that Section 139AA is
violative of right to privacy on the following tests
51as laid down by nineJudge Constitution Bench in
Puttaswamy case:
(i) absence of a law;(ii) absence of legitimate State interest”
(iii) provisions being hit by lack of
proportionality;
(iv) the provisions being manifestly
arbitrary.56. It is submitted that twoJudge Bench judgment of
this Court in Binoy Biswam Vs. Union of India and
others, (2017) 7 SCC 59, had upheld the vires of
Section 139AA subject to issue of privacy which at
that point of time was pending consideration. It is
further submitted that provision pertaining to
Permanent Account Number (PAN) was inserted in the
Income Tax Act by Section 139A with effect from
01.04.1989 which obliged every person to quote PAN for
different purposes as enumerated in Section 139A. The
Petitioners or anyone else never felt aggrieved by
requirement of getting PAN under Section 139A and
Parliament on considering the legitimate State
interest has introduced Section 139AA which is only an
52extension of Section 139A which requires linking of
PAN with Aadhaar number.
57. The Income Tax Act was amended by the Parliament
by inserting Section 139AA in the legitimate State
interest and in larger public interest. The object of
linking was to remove bogus PAN cards by linking with
Aadhaar, expose shell companies and thereby curb the
menace of black money, money laundering and tax
evasion. Problem of multiple PAN cards to same
individuals and PAN cards in the name of fictitious
individuals are common medium of money laundering, tax
evasion, creation and channeling of black money.
58. Linking of Aadhaar with PAN is consistent with
India’s international obligations and Goals. India has
signed the InterGovernmental Agreement (IGA) with the
USA on July, 9, 2015, for improving International Tax
Compliance and implementing the Foreign Account Tax
Compliance Act. It is submitted that prior to
01.07.2017 already 1.75 crore tax payers had linked
their PAN with Aadhaar on a voluntary basis. Replying
53the arguments based on the interim orders passed by
this Court in the present group of petitions, it is
submitted that enactment of Aadhaar Act, 2016 has
taken away and cured the basis of the interim order
passed by this Court since one of the submissions
which was made before this Court in passing the
interim orders was that there was no law, that Aadhaar
project was being implemented without backing of any
law and during the said period the interim orders were
passed. The Aadhaar Act addresses the concern of this
Court as reflected in the interim orders passed before
enactment of the Act.
59. Shri Mehta further contended that there is
presumption to the constitutionality of a statute and
unless one attacking the statute satisfies the Court
that the statute is unconstitutional, the presumption
will be there that statute is constitutional. Shri
Mehta has further submitted that there is no
presumption of criminality or guilt on the requirement
to link Aadhaar.
54
60. Elaborating the doctrine of proportionality,
Additional Solicitor General submits that Section 139A
fully satisfies the aforesaid test of proportionality.
61. Additional Solicitor General in support of
Prevention of Moneylaundering (Maintenance of
Records) Second Amendment Rules, 2017 submits that the
State has sought to make the provisions of PMLA more
robust and ensure that the ultimate object of the Act
is achieved. The Amendment Rules, 2017 place an
obligation on part of the reporting entity to seek the
details with regard to Aadhaar number of every client.
It is submitted that the said Rules have to be read in
consonance with the object of the PMLA and the
principles of “beneficial owner” behind the corporate
veil of shell companies, etc. It is submitted that the
PMLA empowers the State to utilise the uniqueness of
Aadhaar in order to tackle the problem of money
laundering. It is submitted that the PMLA Act, with a
clear emphasis on the investigation of the biological
persons behind the corporate entities, establishes a
mechanism wherein receiving benefits through benami or
55shell companies through related/connected Directors,
fictitious persons or other personnel is eliminated.
62. Section 139AA and PMLA Rules amended in 2017 are
coordinated in their operation. The PMLA Rules are
not ultra vires. Mr. Mehta has also referred to
international Conventions declaring money laundering
to be a very serious offence. He submits that
Prevention of Money Laundering Act, 2002 was enacted
in the context of concrete international efforts to
tackle the menace of money laundering. Shri Mehta has
also emphasised on the necessity of verification of
bank accounts with Aadhaar number. He submits that the
verification of bank account by way of Aadhaar is done
for the reason that often bank accounts are opened in
either fictitious names or in the name of wrong
persons on the basis of forged identity documents and
financial crimes are committed. It is seen that
accommodation entries are mostly provided through the
banking channels by bogus companies to convert black
money into white. Benami transactions routinely take
place through banking channels. All of the above, can
56to a large extent be checked by verifying Aadhaar with
bank accounts to ensure that the account belongs to
the person who claims to be the account holder and
that he or she is a genuine person. Verification of
bank account with Aadhaar also ensures that the direct
benefit transfer of subsidies reach the Aadhaar
verified bank account and is not diverted to some
other account. Shell companies are often used to open
bank accounts to hold unaccounted money of other
entities under fictitious identities which will also
be curbed once Aadhaar verification is initiated.
63. Shri Mehta further contends that impugned PMLA
Rules do not violate Article 300A. Amendment Rules,
2017 also cannot be said to be ultra vires to the
parent Act since it advances the object of the Act and
is not ultra vires of any provision of the Act. The
Amendment Rules are required to be placed before the
Parliament which serve a purpose of check by the
Legislature. As per Section 159 of the Act any
notification under Section 29 is to be placed before
the Parliament and Parliament may amend or reject the
57same. The Rules, 2017 are just, fair and reasonable
and in furtherance of the object of the Act and do not
provide for any arbitrary, uncanalised or unbridled
power.
64. Shri Rakesh Dwivedi, learned senior counsel,
appearing on behalf of UIDAI and State of Gujarat has
made elaborate submissions while replying the
arguments of petitioners. The right to privacy is part
of Article 21. The autonomy of individual is
associated over matters which can be kept private.
These are concerns over which there is a reasonable
expectation of privacy. The reasonable expectation
involves two aspects. Firstly, the individual or
individuals claiming a right to privacy must establish
that their claim involves a concern about some harm
likely to be inflicted upon them on account of the
alleged act. This concern should be real and not
imaginary or speculative. Secondly, the concern should
not be inflated.
58
65. The Act, 2016 operates in the relational sphere
and not in the core, private or personal sphere of
residents. It involves minimal identity information
for effective authentication. The purpose is limited
to authenticate for identification. The Act operates
in a public sphere. Section 29 of the Aadhaar Act,
2016 provides protection against disclosure of
identity information without the prior consent of the
Aadhaar Number holder concerned. Sharing is intended
only for authentication purposes.
66. It is submitted that by their very nature the
demographic information and photograph sought to be
collected cannot be said to be of such a nature as
would make it a part of a reasonable expectation
paradigm. Today, globally all ID cards and passports
contain photographs for identification along with
address, date of birth, gender etc. The demographic
information is readily provided by individuals
globally for disclosing identity while relating with
others; while seeking benefits whether provided by
government or by private entities. People who get
59registered for engaging in a profession, who take
admissions in Schools/Colleges/university, who seek
employment in the government or private concerns and
those who engage in various trade and commerce are all
required to provide demographic information and even
photographs. There is no expectation of privacy in
providing those information for the above purposes.
67. There are lot of enactments which require
disclosure of demographic information comprising name,
address, email address etc., for example Central Motor
Vehicle Rules, 1989, Companies Act, 2013, Special
Marriage Act, The Registration of Electoral Rules,
1960, The Citizenship (Registration of Citizens and
Issue of National Identity Cards) Rules, 2009 and the
Passports Act. However, there are certain special
contexts in which nondisclosure of demographic
information could be considered as raising a
reasonable expectation of privacy such as where
juveniles in conflict with law are involved or where a
rape victim’s identity or medical information is
involved. Thus, unless some such special context or
60aggravating factor is established, there would not be
any reasonable expectation of privacy with respect to
demographic information.
68. As regards the core biometric information,
comprising finger prints and iris scans it would be
pertinent to bear in mind that the Aadhaar Act is not
dealing with the intimate or private sphere of the
individual. The core biometrics are being collected
from residents for authentication use in a public
sphere and in relational context in which regard there
is no reasonable expectation of privacy in relation to
fingerprints and iris scans. Iris scan is nothing but
a photograph of the eyes taken from a camera. From
fingerprints and iris scans nothing is revealed with
regard to a person.
69. Use of fingerprints with regard to registration of
documents is an accepted phenomena. The use of
mandatory requirement of biometric attendance is
increasing day by day both in public and private
sector. Thus, requirement of fingerprints and iris
61scan would not attract the fundamental right of
privacy. The fingerprint and iris scan have been
considered to be most accurate and noninvasive mode
of identifying an individual.
70. The information collected under the Act, 2016 does
not involve processing for economic and sociological
purposes. Further, in the data center deduplication
process is based on anonymization and what is stored
in the servers for authentication process are simply
templates and encrypted information of Aadhaar number
and demographics. The identity data collected is
stored offline. There is no internet connectivity.
Thus, there is more than a reasonable security
protection under the Act.
71. The rationale of Section 7 lies in ensuring
targeted delivery of services, benefits and subsidies
which are funded from the Consolidated Fund of India.
In discharge of its solemn Constitutional obligation
to enliven the Fundamental Rights of life and personal
liberty and to eliminate inequality with a view to
62ameliorate the lot of the poor and the Dalits, the
Central Government has launched several welfare
schemes. Some of such schemes are PDS, scholarship,
mid day meals, LPG subsidies, free education,etc.
72. The requirement to undergo authentication on the
basis of Aadhaar number is made mandatory by
Section 7. This requirement is only for “undertaking
authentication”. However, if authentication fails,
despite more than one attempt then the possession of
Aadhaar number can be proved otherwise, i.e., by
producing the Aadhaar card, and those who do not have
Aadhaar number can make an application for enrolment
and produce the enrolment id number (EID). This takes
care of nonexclusion.
73. Aadhaar Act truly seeks to secure to the poor and
deprived persons an opportunity to live their life and
exercise their liberty. By ensuring targeted delivery
through digital identification, it not only provides
them a nationally recognised identity but also
attempts to ensure the delivery of benefits, service
63and subsidies with the aid of public
exchequer/Consolidated Fund of India. And it does so
without impacting the Fundamental Right to Privacy of
the Indians or at best minimally impacting it with
adequate safeguards.
74. Regarding the numerization or numericalization of
individual argument, it is submitted that the Aadhaar
number does not convert the human being into a number.
The objective of the Aadhaar number is to enable
authentication which is done on a 1:1 matching basis,
i.e., to say when the requesting entity feeds the
Aadhaar number along with some identity information
then the CIDR picks up the template having that
Aadhaar number automatically and matches identity
information with the encrypted information in the
template. This Aadhaar number is, therefore,
absolutely essential for the technological success of
authentication. It is, therefore, a technology
requirement and it does not amount to numerization or
numericalisation. The contention of the petitioners
ignores the distinction between identity and
64identification. The 12 digit Aadhaar number is not
given by UIDAI to alter the identity of the
individual. It is provided to the enrolled individual
to enable his identification through authentication.
Authentication is a multi dimensional identifying
process. The Aadhaar number is one element or one
identifier in the process of identification through
authentication. It is identificational in nature.
Section 2(a) of Aadhaar Act defines Aadhaar number to
mean “an identification number”. Section 2(c) defines
authentication as a process requiring submission of
Aadhaar number to CIDR for verification. Further,
Section 4(2) provides that the Aadhaar number shall be
a random number and shall bear no relation to the
attributes or identity of the Aadhaar number holder.
It is proof of identity and not identity itself.
75. Replying the submission of the petitioners that
fundamental right of privacy/dignity/autonomy under
Article 21 could not be waived. It is submitted that
Section 7 of Aadhaar Act does not involve any issue of
waiver. When an individual undergoes any
65authentication to establish his identity to receive
benefits, services or subsidies, he does so to enliven
his fundamental right to life and personal liberty
under Article 21.
76. With regard to Section 57, it is submitted that
since an infrastructure for establishing identity of
residents is available, therefore, Parliament intends
to make the use of Aadhaar number available for other
purposes provided the need for the service of
authentication arises pursuant to any law or contract.
The rationale seems to be that due to liberalisation
and privatisation in many governmental and public
sector zones, private corporate bodies are operating
in parallel and in competition with public sector –
banking, insurance, defence, health etc. These are
vital core sectors absolutely essential for National
integrity, National economy and life of people. In
many areas private bodies operate under common
regulators such as TRAI, Airport Authority, IRDA etc.
Then there is rapidly growing ecommerce.
66
77. In Reply to the submission of Shri Kapil Sibal
that the real object of the Act was to provide data to
the digital giants like Google, Facebook and other
private players, it is contended that there is no
factual foundation for this submission in any writ
petition. In the Act there is a complete bar with
respect to sharing of core biometric information vide
Section 29(1). The noncore biometric information is
to be shared only as per the provisions of the Act and
Regulations and with prior consent and only for the
purpose of authentication.
78. On the submission of the petitioners that power of
UIDAI to add identity information by Regulation is
unguided and violative of Article 14, it is submitted
that clauses (g) and (j) of Section 2 use the
expression ‘such other biological attribute’. This
general expression needs to be construed by applying
the doctrine of ejusdem generis. The use of word
‘such’ implies similarity with what is specifically
mentioned before the general expression. The
Regulations framed by UIDAI are required to be laid
67before the Parliament under Section 55. Section 55 is
a mandatory provision. The Parliament has power to
modify the Regulation and also to reject the
Regulation. This is a legislative check on the
Regulation making power.
79. Almost 3% of GDP amounting to trillions of rupees
is allocated by Governments towards subsidies,
scholarships, pensions, education, food and other
welfare programmes. But approximately half of it does
not reach the intended beneficiaries. A former Prime
Minister said only 15 out of 100 rupees reaches the
target person. This was confirmed by the Planning
Commission. In the Audit Report No.3 of 2000 CAG
stated in “Overview” that programmes suffered from
serious targeting problems. It noted that bogus ration
cards were being used for diversions (1.93 crores
bogus).
80. Even otherwise, there is no other identification
document which is widely and commonly possessed by the
residents of the country and most of the identity
documents do not enjoy the quality of portability.
68They also do not lend assurance and accuracy on
account of existence of fake, bogus and ghost cards.
Therefore, there was need of a biometric Aadhaar
number which enables deduplication and
authentication.
81. Shri Dwivedi submits that security and data
privacy is ensured in the following manner:
(i) The data sent to ABIS is completely
anonymised. The ABIS systems do not
have access to resident’s demographic
information as they are only sent
biometric information of a resident
with a reference number and asked to
deduplicate. The deduplication
result with the reference number is
mapped back to the correct enrolment
number by the Authorities own
enrolment server.(ii) The ABIS providers only provide
their software and services. The data
is stored in UIDAI storage and it
never leaves the secure premises.(iii) The ABIS providers do not store the
biometric images (source). They only
69store template for the purposes of de
duplication (with reference number).(iv) The encrypted enrolment packet sent by
the enrolment client software to the
CIDR is decrypted by the enrolment
server but the decrypted packet is
never stored.(v) The original biometric images of
fingerprints, iris and face are
archived and stored offline. Hence,
they cannot be accessed through an
online network.(vi) The biometric system provides high
accuracy of over 99.86%. The mixed
biometric have been adopted only to
enhance the accuracy and to reduce the
errors which may arise on account of
some residents either not having
biometrics or not having some
particular biometric.82. Biometrics are being used for unique
identification in epassports by 120 countries. Out of
these many countries use fingerprints and/or iris
scans. Additionally 19 European Countries have smart
National Identity cards having chips containing
70biometric information. A number of African and Asian
countries are also using biometrics for
identification. The ECHR and ECJ have not declared the
use of biometrics or the collection and storage of
data for the said purpose to be violative of Human
Rights. It has infact been upheld in the context of
passports, by the ECJ.
83. On the submissions that deduplication/
authentication software has been received from three
foreign suppliers and since the source code of the
algorithm is with the foreign suppliers, therefore,
they can easily obtain the data in the CIDR merely by
manipulation of the algorithm, Shri Dwivedi submits
that foreign biometric solution providers only provide
the software, the server and hardware belongs to
UIDAI. So far the software is concerned UIDAI uses the
software as licensee. There is no free access to the
server room which is wholly secured by security
guards. The enrolment data packet, after being
received in the data center, is decrypted for a short
duration to enable extraction of minutiae and
71preparation of templates. Once the template is
prepared the entire biometric data is stored offline
under the complete control of the UIDAI officials.
84. It is correct that the source code for the
algorithms provided are retained by the BSPs which
constitutes the intellectual property right of the
BSP, however, it does not introduce any insecurity of
data in the CIDR as the softwares operate
automatically in the servers located in the server
rooms and also because the software functions only on
the basis of the templates whilst the biometric data
is stored offline.
85. During the submissions, Shri Dwivedi also
emphasised on prohibition of sharing of core biometric
information. As per Section 29(1) read with Regulation
17(1) of the Aadhaar (Sharing of Information)
Regulations, 2016. Referring to various Regulations of
the above Regulations. Shri Dwivedi submitted that the
architecture of Aadhaar and its functioning does not
permit CIDR to note about parties of any transaction
72or location of the individual seeking identification
of his Aadhaar number. Requesting Agency is strictly
restricted to sharing of only demographic information
plus photograph and for authentication only, and this
is also with express and separate prior consent of the
ANH. Requesting Entities cannot share authentication
logs with any person other than the ANH or for
grievance redressal and resolution of disputes or with
the Authority for audit and shall not be used for any
purpose other than stated in Regulation 18(5).
86. Elaborating on security Shri Dwivedi submitted
that Section 28(4) mandates that the UIDAI shall
ensure that the agencies appointed by it have in place
the appropriate technical and organizational security
measures for the information and ensure that the
agreements or arrangements entered into with such
agencies impose obligations equivalent to those
imposed on the Authority and require such agencies to
act only on instructions from the Authority.
87. RE shall ensure that the identity information of
73the ANH or any other information generated during the
authentication is kept confidential, secure and
protected against access, use and disclosure not
permitted under the Act and regulations.[Regulation
17(1)(e)]. The private key used for digitally signing
the authentication request and the license keys are
kept secure and access controlled[Regulation 17(1)(f)
and 22(3)]. All relevant laws and regulations in
relation to data storage and data protection relating
to Aadhaar based identity information in their
systems, that of their agents and with authentication
devices are compiled with [Regulation 17(1)(g)].
88. Regulation 22(4) provides that RE shall adhere to
all regulations, information security policies,
processes, standards, specifications and guidelines
issued from time to time.
89. By virtue of Section 56 and 61 of the Aadhaar Act,
2016, the provisions of IT Act, 2000 are applicable
except where it is inconsistent with Aadhaar Act. The
regular regime under the IT Act with all its
provisions for punishment and penalty are attracted
74since the biometric information is an electronic
record and the data is sensitive personal data or
information as defined in the IT Act, 2000. On
submission of the petitioner that there is no
mechanism for raising any grievance, Shri Dwivedi
submits that UIDAI has set up grievance redressal cell
as contemplated under Section 23(1)(s) of the Act. Any
ANH can make a complaint for redressal of grievance.
90. The petitioner's submission that Aadhaar Act
enables the State to put the entire population of the
country in an electronic leash and to track them all
the time and it has converted itself as the State into
a totalitarian State, it is submitted that none of the
four clauses of Regulation 26 entitle the authority to
store data about the purpose for which authentication
is being done. Section 32(3) of the Aadhaar Act
specifically prohibits the authority from collecting,
storing or maintaining, whether directly or indirectly
any information about the purpose of authentication.
The proviso to Regulation 26 is also to the same
effect. Here, “the purpose of authentication” means
75the nature of activity being conducted by ANH in
relation to which the authentication is required and
is being done.
91. It is submitted that the devices which are used
for the purpose of authentication are not geared or
designed to record the nature of the activity being
done by the ANH which necessitates authentication. The
device can only tell the authority about the time of
authentication, the identity of the RE, the PID, the
time and nature of response, the code of the device
and the authentication server side configurations.
Hence, with the aid of authentication record it is not
possible for the UIDAI to track the nature of activity
being engaged into by the ANH. In fact, in
overwhelming majority of cases the authentication
record would not enable the authority to know even the
place/location where the activity is performed by the
ANH. The reason is that there are about 350 number of
REs. The REs alone can authenticate with the help of
CIDR and this is done by them through the ASA. In a
large number of cases, the organizations requiring
76authentication would be doing so through some RE with
whom they have some agreements. To illustrate nic.in
is an RE which provides authentication service to
large number of government organizations who have
agreements with it. The authentication record would
only contain information about the identity about the
RE. It will give information only about the RE(nic.in)
and not about the organization which is requiring
authentication through the RE. In most cases the
authentication is one time.
92. It is submitted that biometrics is being
increasingly resorted to for identification purposes
by many countries. At least 19 countries in Europe are
using biometric smart cards where data is stored in
the chip. These smart cards are similar to the smart
cards which were used under the 2006 Act in U.K. The
important difference lies in the extent of data of the
individual which is stored in the smart card. The
European cards unlike the UK, do not store 50
categories of data which was being stored in the UK
card that came to be abolished in 2010 by the
77Repealing Act, 2010. In some European countries the
smart cards are issued in a decentralized manner, as
in Germany. But in some other countries the smart
cards are issued in a centralized manner. In either
case, the State is possessed of all the information
which is stored in the chip of the smart card, though
it may not involve authentication. These smart cards
are considered to be property of the State and the
State can require the production of the smart card for
identification at any time. Estonia is considered to
be a pioneer and leader in the field of the use of
biometrics and it has a centralized data base.
93. It is submitted that the architecture of the
Aadhaar Act does not lead to any real possibility,
proximate or remote of mass surveillance in real time
by the State. This is not an Act for empowering
surveillance by the State. It merely empowers the
State to ensure proper delivery of welfare measures
mandated by Directive Principles of State Policy(Part
IV of the Constitution) which actually enliven the
Fundamental Rights under Article 14, 19 and 21 of the
78Constitution for a vast majority of the poor and down
trodden in the country and thereby to bring about
their comprehensive emancipation. It seeks to ensure,
justice, social, economic and political for the little
Indians.
94. Responding on the arguments raised by the
petitioner on Section 47 of the Act, it is submitted
that Section 47 has rationale. The offences and
penalties under Chapter VII are all intended to
maintain the purity and integrity of CIDR which has
been established of the ANH. Secondly, the entire
enrolment, storage in CIDR and authentication exercise
is so vast and that any breach can be handled with
efficiency and effectively only by UIDAI. There are
similar enactments which contain similar provisions
which have been upheld by this Court. An individual
can make a complaint to UIDAI directly or through
grievance redressal cell. The authority would be
obliged to examine the complaints and to lodge the
complaint in the Court as per Section 47.
Additionally, the individual is generally likely to
79have a complaint of identity theft, cheating or
disclosure. In such a situation he can always invoke
the provisions of Sections 66C, 66D and 72A of the IT
Act, 2000. The said offences carry identical
penalties.
95. Elaborating on Section 59 of the Act, it is
submitted that Section 59 purports to provide a
statutory basis to the resolution of the Government of
India, Planning Commission dated 28.01.2009 and also
to validate anything done or any action taken by the
Central Government under the said resolution. Section
59 of the Aadhaar Act seeks to continue what was done
and the actions which were taken under the Resolution
dated 28.01.2009. Section 59 is clearly extending its
protection retrospectively to that which was done
under the notification dated 28.01.2009.
96. Section 59 provides a deemed fiction. As a result
of this deemed fiction one has to imagine that all the
actions taken under the aforesaid notifications were
done under the Act and not under the aforesaid
notifications.
80
97. Replying the submission of the petitioner that
large scale of marginal section of the society is
deprived due to exclusion from getting the benefits
and the Act violates Article 14 of the Constitution,
it is submitted that there is no exclusion on account
of deduplication. It cannot be denied that there may
be some cases where due to nonidentification, a
person may have been put to some disadvantage but on
failure of authentication the authorities have clear
discretion to accept other means of identification to
deliver the subsidies and benefits. In any view of the
matter on some administrative lapses and some mistakes
in implementation does not lead to conclude that Act
is unconstitutional and wrong implementation of the
Act does not effect the constitutionality of the
statutes.
98. Learned counsel for the parties have placed
reliance on several judgments of this Court and
Foreign Courts in support of their respective
81submissions which we shall notice while considering
the respective submissions hereinafter.
99. Apart from hearing elaborate submissions made by
the learned counsel for the petitioners as well as the
respondents, we have also heard several learned
counsel for the intervener. The submission made by the
intervener has already been covered by learned counsel
for the petitioners as well as for the respondents,
hence it needs no repetition.
100. We have considered the submissions raised before
us. From the pleadings on record and the submissions
made following are the main issues which arise for
consideration:
(1) Whether requirement under Aadhaar Act to give
one's demographic and biometric information is
violative of fundamental right of privacy ?
(2) Whether the provisions of Aadhaar Act requiring
demographic and biometric information from a
resident for Aadhaar number are unconstitutional
and do not pass three fold test as laid down in
82Puttaswamy case ?
(3) Whether collection of data of residents, its
storage, retention and use violates fundamental
right of privacy ?
(4) Whether Aadhaar Act creates an architecture for
pervasive surveillance amounting to violation of
fundamental right of privacy ?
(5) Whether the Aadhaar Act provides protection and
safety of the data collected and received from
individual ?
(6) Whether Section 7 of Aadhaar Act is
unconstitutional since it requires that for
purposes of establishment of identity of an
individual for receipt of a subsidy, benefit or
service such individual should undergo
authentication or furnish proof of possession of
Aadhaar number or satisfy that such person has
made an application for enrolment ? Further the
provision deserves to be struck down on account
83of large number of denial of rightful claims of
various marginalised section of society and down
trodden?
(7) Can the State while enlivening right to food,
right to shelter etc. envisaged under Article 21
encroach upon the rights of privacy of the
beneficiaries ?
(8) Whether Section 29 of the Aadhaar Act is liable
to be struck down inasmuch as it permits sharing
of identity information ?
(9) Whether Section 33 is unconstitutional inasmuch
as it provides for the use of Aadhaar data base
for Police investigation, which violates the
protection against selfincrimination as
enshrined under Article 20(3) of the
Constitution of India ?
(10) Whether Section 47 of Aadhaar Act is
unconstitutional inasmuch as it does not allow
an individual who finds that there is a
84violation of Aadhaar Act to initiate a criminal
process ?
(11) Whether Section 57 of Aadhaar Act which allows
an unrestricted extension of Aadhaar information
of an individual for any purpose whether by the
State or any body, corporate or person pursuant
to any law or contact is unconstitutional ?
(12) Whether Section 59 is capable of validating all
actions taken by the Central Government under
notification dated 28.01.2009 or under
notification dated 12.09.2015 and all such
actions can be deemed to be taken under the
Aadhaar Act?
(13) Whether Aadhaar Act is unconstitutional since it
collects the identity information of children
between 5 to 18 years without parental consent ?
(14) Whether Rule 9 as amended by PMLA (Second
Amendment) Rules, 2017 is unconstitutional being
violative of Article 14, 19(1)(g), 21 and 300A
85of Constitution of India and Section 3,7, 51 of
Aadhaar Act. Further, whether Rule 9 is ultra
vires to the PMLA Act, 2002. itself.
(15) Whether circular dated 23.02.2017 issued by the
Department of Telecommunications, Government of
India is ultra vires.
(16) Whether Aadhaar Act could not have been passed
as Money Bill ? Further, whether the decision of
Speaker of Lok Sabha certifying the Aadhaar
(Targeted Delivery of Financial and other
Subsidies, Benefits and Services) Bill, 2016 as
Money Bill is subject to judicial review ?
(17) Whether Section 139AA of the Income Tax Act,
1961 is unconstitutional in view of the Privacy
judgment in Puttaswamy case?
(18) Whether Aadhaar Act violates the Interim Orders
passed by this Court in Writ Petition (C) No.
494 of 2012 other connected cases?
86
Whether requirement under Aadhaar Act to
give one's demographic and biometric
information is violative of fundamental
Issue Nos.1 right of privacy ? And
and 2 Whether the provisions of Aadhaar Act
requiring demographic and biometric
information from a resident for Aadhaar
number are unconstitutional and do not
pass three fold test as laid down in
Puttaswamy case ?101. Before we answer the above issues we need to look
into the object and purpose for which Aadhaar Act was
enacted. The Statement of Objects and Reasons
particularly paragraph 5 of such Statement throws
light on the object for which Legislation came into
existence. Paragraph 5 of the Statement of Objects and
Reasons is as follows:
“5. The Aadhaar (Targeted Delivery of
Financial and Other Subsidies, Benefits and
Services) Bill, 2016, inter alia, seeks to
provide for—(a) issue of Aadhaar numbers to
individuals on providing his
demographic and biometric
information to the Unique
Identification Authority of India;(b) requiring Aadhaar numbers for
identifying an individual for
delivery of benefits, subsidies, and
services the expenditure is incurred
from or the receipt therefrom forms
87part of the Consolidated Fund of
India;(c) authentication of the Aadhaar
number of an Aadhaar number holder
in relation to his demographic and
biometric information;(d) establishment of the Unique
Identification Authority of India
consisting of a Chairperson, two
Members and a MemberSecretary to
perform functions in pursuance of
the objectives above;(e) maintenance and updating the
information of individuals in the
Central Identities Data Repository
in such manner as may be specified
by regulations;(f) measures pertaining to security,
privacy and confidentiality of
information in possession or control
of the Authority including
information stored in the Central
Identities Data Repository; and(g) offences and penalties for
contravention of relevant statutory
provisions.”102. Preamble to any Act is a key to read and unfold
an enactment. The Preamble of Aadhaar Act reads:
“An Act to provide for, as a good governance,
efficient, transparent, and targeted delivery
of subsidies, benefits and services, the
expenditure for which is incurred from the
Consolidated Fund of India, to individuals
residing in India through assigning of unique
identity numbers to such individuals and for
88matters connected therewith or incidental
thereto.”103. Section 2 of the Act is definition clause.
Section 2(a) defines “Aadhaar number” in the following
manner:
“2(a) “Aadhaar number” means an
identification number issued to an individual
under subsection (3) of section 3;”104. Sections 2(g) and 2(k) define “biometric
information” and “demographic information” which is to
the following effect:
“2(g) “biometric information” means
photograph, finger print, Iris scan, or such
other biological attributes of an individual
as may be specified by regulations;(k) “demographic information” includes
information relating to the name, date of
birth, address and other relevant information
of an individual, as may be specified by
regulations for the purpose of issuing an
Aadhaar number, but shall not include race,
religion, caste, tribe, ethnicity, language,
records of entitlement, income or medical
history;105. Section 3 of the Act deals with Aadhaar
enrolment. Section 3 is as follows:
89
“3.(1) Every resident shall be entitled to
obtain an Aadhaar number by submitting his
demographic information and biometric
information by undergoing the process of
enrolment: Provided that the Central
Government may, from time to time, notify
such other category of individuals who may be
entitled to obtain an Aadhaar number.(2) The enrolling agency shall, at the time
of enrolment, inform the individual
undergoing enrolment of the following details
in such manner as may be specified by
regulations, namely:—(a) the manner in which the
information shall be used;(b) the nature of recipients with
whom the information is intended to
be shared during authentication; and(c) the existence of a right to
access information, the procedure for
making requests for such access, and
details of the person or department
incharge to whom such requests can
be made.(3) On receipt of the demographic information
and biometric information under subsection
(1), the Authority shall, after verifying the
information, in such manner as may be
specified by regulations, issue an Aadhaar
number to such individual.”106. The challenge in this batch of cases is challenge
to the Act and its various provisions on the ground
that the Act and its provisions violate right of
privacy which is now recognised as fundamental right.
90All aspects of privacy right, which is accepted as a
fundamental right under Article 21, have been
elaborately and authoritatively dealt by nineJudge
Constitution Bench of this Court in Puttaswamy case
(supra).
107. Alan F. Westin in his work “Privacy and Freedom”
defined privacy as “the desire of people to choose
freely under what circumstances and to what extent
they will expose themselves, their attitudes and their
behaviour to others”.
108. Dr. D.Y. Chandrachud, J., in his opinion (which
expresses majority opinion) in paragraph 3 of the
judgment while analysing the concept of privacy held:
“3. Privacy, in its simplest sense, allows
each human being to be left alone in a core
which is inviolable. Yet the autonomy of the
individual is conditioned by her
relationships with the rest of society. Those
relationships may and do often pose questions
to autonomy and free choice. The overarching
presence of State and nonState entities
regulates aspects of social existence which
bear upon the freedom of the individual. The
preservation of constitutional liberty is, so
to speak, work in progress. Challenges have
to be addressed to existing problems.Equally, new challenges have to be dealt with
91in terms of a constitutional understanding of
where liberty places an individual in the
context of a social order. The emergence of
new challenges is exemplified by this case,
where the debate on privacy is being analysed
in the context of a global information based
society. In an age where information
technology governs virtually every aspect of
our lives, the task before the Court is to
impart constitutional meaning to individual
liberty in an interconnected world. While we
revisit the question whether our Constitution
protects privacy as an elemental principle,
the Court has to be sensitive to the needs of
and the opportunities and dangers posed to
liberty in a digital world.”109. Dwelling on essential nature of privacy in
paragraphs 297 and 298 following has been laid down by
Dr. D.Y. Chandrachud, J.:
“297. What, then, does privacy postulate?
Privacy postulates the reservation of a
private space for the individual, described as
the right to be let alone. The concept is
founded on the autonomy of the individual. The
ability of an individual to make choices lies
at the core of the human personality. The
notion of privacy enables the individual to
assert and control the human element which is
inseparable from the personality of the
individual. The inviolable nature of the human
personality is manifested in the ability to
make decisions on matters intimate to human
life. The autonomy of the individual is
associated over matters which can be kept
private. These are concerns over which there
is a legitimate expectation of privacy. The
body and the mind are inseparable elements of
the human personality. The integrity of the
92body and the sanctity of the mind can exist on
the foundation that each individual possesses
an inalienable ability and right to preserve a
private space in which the human personality
can develop. Without the ability to make
choices, the inviolability of the personality
would be in doubt. Recognising a zone of
privacy is but an acknowledgment that each
individual must be entitled to chart and
pursue the course of development of
personality. Hence privacy is a postulate of
human dignity itself....298. Privacy of the individual is an
essential aspect of dignity. Dignity has both
an intrinsic and instrumental value. As an
intrinsic value, human dignity is an
entitlement or a constitutionally protected
interest in itself. In its instrumental
facet, dignity and freedom are inseparably
intertwined, each being a facilitative tool
to achieve the other. The ability of the
individual to protect a zone of privacy
enables the realisation of the full value of
life and liberty. Liberty has a broader
meaning of which privacy is a subset. All
liberties may not be exercised in privacy.Yet others can be fulfilled only within a
private space. Privacy enables the individual
to retain the autonomy of the body and mind.The autonomy of the individual is the ability
to make decisions on vital matters of concern
to life. Privacy has not been couched as an
independent fundamental right. But that does
not detract from the constitutional
protection afforded to it, once the true
nature of privacy and its relationship with
those fundamental rights which are expressly
protected is understood. Privacy lies across
the spectrum of protected freedoms. The
guarantee of equality is a guarantee against
arbitrary State action. It prevents the State
93from discriminating between individuals. The
destruction by the State of a sanctified
personal space whether of the body or of the
mind is violative of the guarantee against
arbitrary State action. Privacy of the body
entitles an individual to the integrity of
the physical aspects of personhood. The
intersection between one’s mental integrity
and privacy entitles the individual to
freedom of thought, the freedom to believe in
what is right, and the freedom of self
determination. When these guarantees
intersect with gender, they create a private
space which protects all those elements which
are crucial to gender identity. The family,
marriage, procreation and sexual orientation
are all integral to the dignity of the
individual. Above all, the privacy of the
individual recognises an inviolable right to
determine how freedom shall be exercised.”110. This Court has further held that like the right
to life and liberty, privacy is not absolute. Any
curtailment or deprivation of that right would have to
take place under a regime of law. In paragraph 313
following has been held:
“313. Privacy has been held to be an
intrinsic element of the right to life and
personal liberty under Article 21 and as a
constitutional value which is embodied in the
fundamental freedoms embedded in Part III of
the Constitution. Like the right to life and
liberty, privacy is not absolute. The
limitations which operate on the right to
life and personal liberty would operate on
the right to privacy. Any curtailment or
deprivation of that right would have to take
94place under a regime of law. The procedure
established by law must be fair, just and
reasonable. The law which provides for the
curtailment of the right must also be subject
to constitutional safeguards.”111. Further elaboration of the core of privacy has
been stated in the following words in paragraphs 322,
323 and 326:
“322. Privacy is the constitutional core of
human dignity. Privacy has both a normative
and descriptive function. At a normative
level privacy subserves 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.323. Privacy includes at its core the
preservation of personal intimacies, the
sanctity of family life, marriage,
procreation, the home and sexual orientation.
Privacy also connotes a right to be left
alone. Privacy safeguards individual autonomy
and recognises 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 recognises the plurality
and diversity of our culture. While 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
95essential facet of the dignity of the human
being.326. Privacy has both positive and negative
content. The negative content restrains the
State from committing an intrusion upon the
life and personal liberty of a citizen. Its
positive content imposes an obligation on the
State to take all necessary measures to
protect the privacy of the individual.”112. The first issue which is under consideration is
as to whether requirement under the Aadhaar Act to
give one’s biometric and demographic information is
violative of fundamental right of privacy. Demographic
and biometric information has been defined in
Section 2 as noted above. Biometric information and
demographic information are two distinct concepts as
delineated in the Act itself. We first take up the
demographic information which includes information
relating to the name, date of birth, address and other
relevant information of an individual, as may be
specified by regulations for the purpose of issuing an
Aadhaar number. There is also injunction in Section
2(k) that demographic information shall not include
race, religion, caste, tribe, ethnicity, language,
96records of entitlement, income or medical history.
Thus, demographic information which are contemplated
to be given in the Act are very limited information.
The Regulations have been framed under Act, namely,
Aadhaar (Enrolment and Update) Regulations, 2016.
Regulation 4 enumerates demographic information which
shall be collected from individuals undergoing
enrolment. Regulation 4 is as follows:
“4. Demographic information required for
enrolment. — (1) The following demographic
information shall be collected from all
individuals undergoing enrolment (other than
children below five years of age):(i) Name;
(ii) Date of Birth;
(iii) Gender;
(iv) Residential Address.(2) The following demographic information may
also additionally be collected during
enrolment, at the option of the individual
undergoing enrolment:(i) Mobile number;
(ii) Email address.(3) In case of Introducerbased enrolment,
the following additional information shall be
collected:(i) Introducer name;
(ii) Introducer’s Aadhaar number.
97(4) In case of Head of Family based
enrolment, the following additional
information shall be collected:
(i) Name of Head of Family;
(ii) Relationship;
(iii) Head of Family’s Aadhaar
number;
(iv) One modality of biometric
information of the
Head of Family.(5) The standards of the above demographic
information shall be as may be specified by
the Authority for this purpose.(6) The demographic information shall not
include race, religion, caste, tribe,
ethnicity, language, record of entitlement,
income or medical history of the resident.”
113. A perusal of Regulation 4 indicates that
information which shall be collected from individual
are his name, date of birth, gender and residential
address. The additional information which can be
collected at the option of the individual is mobile
number and email address. Schedule I of the
Regulation contains format of enrolment form which
contains columns for information as contemplated under
Regulation 4.
98
114. The information contemplated under Regulation 4
are nothing but information relating to identity of
the person.
115. Every person born on earth takes birth at a place
at a time with a parentage. In the society person is
identified as a person born as son or daughter of such
and such. The identity of person from the time of
taking birth is an identity well known and generally
every person describes himself or herself to be son or
daughter of such and such person.
116. Every person, may be a child in school, a person
at his workplace, relates himself or herself with his
or her parent’s, place of birth etc., in interaction
with his near and dear and outside world a person
willingly and voluntarily reveals his identity to
others in his journey of life. The demographic
information are readily provided by individuals
globally for disclosing identity while relating with
others; while seeking benefits whether provided by
government or by private entities. People who get
99registered for engaging in a profession, who take
admissions in schools/colleges/ university, who seek
employment in the government or private concerns, and
those who engage in various trade and commerce are all
required to provide demographic information. Hence, it
can be safely said that there cannot be a reasonable
expectation of privacy with regard to such
information. There are large number of statutes which
provide for giving demographic information by the
individuals. For inclusion of name of a person in the
Electoral List as per the Registration of Electoral
Rules, 1960 framed under the Representation of People
Act, 1950, a person is required to give similar
demographic information in Form II, i.e., name, date
of birth, gender, current address and permanent
address, which also contains optional particulars of
email address and mobile number. Under Central Motor
Vehicle Rules, 1989 person making an application for
driving licence is required to give name, parent,
permanent address, temporary address, date of birth,
place of birth, educational qualification, etc.
100117. Under Special Marriage Act, name, condition,
occupation, age, dwelling place, age, etc. are to be
given. Thus, providing such demographic information in
most of the statutes clearly indicates that those
information are readily provided and no reasonable
expectation of privacy has ever been claimed or
perceived in above respect.
118. It is well settled that breach of privacy right
can be claimed only when claimant on the facts of the
particular case and circumstances have “reasonable
expectation of privacy”. In Court of Appeal in Regina
(Wood) v. Commissioner of Police of the Metropolis,
(2009) EWCA Civ 414: (2010) 1 WLR 123, following was
held:
“22. This cluster of values, summarised as
the personal autonomy of every individual and
taking concrete form as a presumption against
interference with the individual's liberty,
is a defining characteristic of a free
society. We therefore need to preserve it
even in little cases. At the same time it is
important that this core right protected by
Article 8, however protean, should not be
read so widely that its claims become unreal
and unreasonable. For this purpose I think
there are three safeguards, or
101qualifications. First, the alleged threat or
assault to the individual's personal autonomy
must (if Article 8 is to be engaged) attain
"a certain level of seriousness". Secondly,
the touchstone for Article 8(1)'s engagement
is whether the claimant enjoys on the facts a
"reasonable expectation of privacy" (in any
of the senses of privacy accepted in the
cases). Absent such an expectation, there is
no relevant interference with personal
autonomy. Thirdly, the breadth of Article
8(1) may in many instances be greatly
curtailed by the scope of the justifications
available to the State pursuant to Article
8(2). I shall say a little in turn about
these three antidotes to the overblown use of
Article 8.24. As for the second a "reasonable
expectation of privacy" I have already
cited paragraph 51 of Von Hannover, with its
reference to that very phrase, and also to a
"legitimate expectation" of protection. One
may compare a passage in Lord Nicholls'
opinion in Campbell at paragraph 21:"Accordingly, in deciding what was
the ambit of an individual's
'private life' in particular
circumstances courts need to be on
guard against using as a touchstone
a test which brings into account
considerations which should more
properly be considered at the later
stage of proportionality.Essentially the touchstone of
private life is whether in respect
of the disclosed facts the person in
question had a reasonable
expectation of privacy."102
In the same case Lord Hope said at paragraph
99:"The question is what a reasonable
person of ordinary sensibilities
would feel if she was placed in the
same position as the claimant and
faced with the same publicity."In Murray v Big Pictures (UK) Ltd Sir Anthony
Clarke MR referred to both of these
passages, and stated:"35... [S]o far as the relevant
principles to be derived from
Campbell are concerned, they can we
think be summarised in this way. The
first question is whether there is a
reasonable expectation of privacy.This is of course an objective
question. ...36. As we see it, the question
whether there is a reasonable
expectation of privacy is a broad
one, which takes account of all the
circumstances of the case. They
include the attributes of the
claimant, the nature of the activity
in which the claimant was engaged,
the place at which it was happening,
the nature and purpose of the
intrusion, the absence of consent and
whether it was known or could be
inferred, the effect on the claimant
and the circumstances in which and
the purposes for which the
information came into the hands of
the publisher."103
119. The reasonable expectation of privacy test was
also noticed and approved in privacy judgment, Dr. D.Y
Chandrachud, J. has referred judgment of US Supreme
Court in Katz v. United States, 389 US 347 (1967),
following has been observed by this Court in K.S.
Puttaswamy (supra) in paragraph 185:
“The majority adopted the “reasonable
expectation of privacy” test as formulated by
Harlan, J. in Katz and held as follows:“7. [The] inquiry, as Mr Justice
Harlan aptly noted in his Katz66
concurrence, normally embraces two
discrete questions. The first is
whether the individual, by his
conduct, has “exhibited an actual
(subjective) expectation of privacy”
… whether … the individual has shown
that “he seeks to preserve
[something] as private”. … The second
question is whether the individual’s
subjective expectation of privacy is
“one that society is prepared to
recognize as “reasonable” ” … whether
… the individual’s expectation,
viewed objectively, is “justifiable”
under the circumstances. …8. … Since the pen register was
installed on telephone company
property at the telephone company’s
central offices, petitioner
obviously cannot claim that his
“property” was invaded or that
104police intruded into a
“constitutionally protected area”.”Thus the Court held that the petitioner in
all probability entertained no actual
expectation of privacy in the phone numbers
he dialed, and that, even if he did, his
expectation was not “legitimate”. However,
the judgment also noted the limitations of
the Katz test:“Situations can be imagined, of
course, in which Katz66 twopronged
inquiry would provide an inadequate
index of Fourth Amendment protection.… In such circumstances, where an
individual’s subjective expectations
had been “conditioned” by influences
alien to wellrecognised Fourth
Amendment freedoms, those subjective
expectations obviously could play no
meaningful role in ascertaining what
the scope of Fourth Amendment
protection was.”
(emphasis supplied)120. After noticing several judgments of US Supreme
Court, D.Y.Chandrachud, J. in K.S. Puttaswamy
(supra)has noted that the reasonable expectation of
privacy test has been relied on by various other
jurisdictions while developing the right of privacy.
In paragraph 195 following has been held:
“195. The development of the jurisprudence on
the right to privacy in the United States of
105America shows that even though there is no
explicit mention of the word “privacy” in the
Constitution, the courts of the country have
not only recognised the right to privacy
under various amendments to the Constitution
but also progressively extended the ambit of
protection under the right to privacy. In its
early years, the focus was on property and
protection of physical spaces that would be
considered private such as an individual’s
home. This “trespass doctrine” became
irrelevant when it was held that what is
protected under the right to privacy is
“people, not places”. The “reasonable
expectation of privacy” test has been relied
on subsequently by various other
jurisdictions while developing the right to
privacy.”121. As noted above an individual in interaction with
society or while interacting with his close relatives
naturally gives and reveals his several information
e.g. his name, age, date of birth, residential
address, etc. We are of the opinion that in giving of
those information there is no reasonable expectation
of privacy. Thus, we conclude that demographic
information required to be given in the process of
enrolment does not violate any right of privacy.
122. Every person born gets a name after his birth.
He strives throughout his life to establish himself to
106be recognised by society. Recognition by fellow man
and society at large is cherished dream of all human
being, for fulfilling the above dream, he does not
hide himself from society rather takes pride in
reasserting himself time and again when occasion
arises. He proclaims his identity time and again.
123. The right to identity is an essential component
of an individual in her relationship with the State.
The identification is only the proof of identity and
everyone has right to prove his identity by an
acceptable means. Aadhaar is contemplated as one PAN
INDIA identity, which is acceptable proof of identity
in every nook and corner of the country.
124. Reference of International Declaration and
covenants have been made to assert that providing for
an identity to every resident is an international
obligation of India. In this reference following has
been referred to:
Name of the Provision
Convention
[Date of
Accession]
107Universal Article 6: Everyone has the right to
Declaration of recognition everywhere as a person
Human before the law.Rights,1948
[10.12.1948]
International Article 16: Everyone shall have the
Covenant on right to recognition everywhere as a
Civil and person before the law.
Political
Rights, 1976
[10.04.1979]
UN Convention Article 8: States Parties undertake to
on the Rights respect the right of the child to
of the Child, preserve his or her identity,
1989 including nationality, name and family
[11.12.1992] relations as recognized by law without
unlawful interference.Article 29(1): States Parties agree
that the education of the child shall
be directed to:....(c) The development
of respect for the child's parents,
his or her own cultural identity,
language and values, for the national
values of the country in which the
child is living, the country from
which he or she may originate, and for
civilizations different from his or
her own;....125. We may also notice one of the applications filed
by an organisation, namely, Swatantra, which works for
and represents the interests of the transgender and
sexual minorities communities in India. The submission
has been made on behalf of organisation that Aadhaar
108Act and Rules making the Unique Identification Number
(UID) or the Aadhaar number mandatory and requiring
them to provide their personal demographic and
biometric information for enrolment is a serious
infringement of the constitutional right to privacy
and dignity of transgender persons. It is submitted
that the transgender community has experienced a
history of legally and socially sanctioned violence
and discrimination from private individuals and State
authorities. Reference of Criminal Tribes Act, 1871
and certain State legislations has been made in this
regard. The applicant also refers to judgment of this
Court in National Legal Services Authority and Union
of India and others, 2014 (5) SCC 438, where this
Court has held that the freedom of expression includes
one's right to expression of a selfidentified gender
identity through dress, action behaviour etc. The
submission has been made that making the disclosure of
gender under Section 2 of the Aadhaar Act and
Regulation 4 of the Aadhaar (Enrolment Update)
Regulations violates Article 14 of the Constitution.
109126. Further, the Aadhaar Act amounts to
discrimination against transgender persons under
Article 15 of the Constitution on the ground of
gender. Further, it is contended that disclosure of
gender identity violates Article 21 and Article 19(1)
(a) of the transgender persons.
127. We having considered the provisions of the Act
and Enrolment and Update Regulations and having found
that disclosure of demographic information does not
violate any right of privacy, the said conclusion
shall also be fully applicable with regard to
transgender. This Court in NALSA (supra) has held that
Article 19(1)(a) which provides that all citizens
shall have the right to freedom of speech and
expression which includes one's right to expression
and his selfidentified gender, it is the right of a
person to identify his gender. In paragraphs 69 and 72
of the judgment following has been laid down:
“69. Article 19(1) of the Constitution
guarantees certain fundamental rights,
subject to the power of the State to impose
restrictions from exercise of those rights.110
The rights conferred by Article 19 are not
available to any person who is not a citizen
of India. Article 19(1) guarantees those
great basic rights which are recognized and
guaranteed as the natural rights inherent in
the status of the citizen of a free country.
Article 19(1)(a) of the Constitution states
that all citizens shall have the right to
freedom of speech and expression, which
includes one's right to expression of his
selfidentified gender. Selfidentified
gender can be expressed through dress, words,
action or behavior or any other form. No
restriction can be placed on one's personal
appearance or choice of dressing, subject to
the restrictions contained in Article 19(2)
of the Constitution.72. Gender identity, therefore, lies at the
core of one's personal identity, gender
expression and presentation and, therefore, it
will have to be protected Under Article 19(1)(a) of the Constitution of India. A
transgender's personality could be expressed
by the transgender's behavior and
presentation. State cannot prohibit, restrict
or interfere with a transgender's expression
of such personality, which reflects that
inherent personality. Often the State and its
authorities either due to ignorance or
otherwise fail to digest the innate character
and identity of such persons. We, therefore,
hold that values of privacy, selfidentity,
autonomy and personal integrity are
fundamental rights guaranteed to members of
the transgender community Under Article 19(1)(a) of the Constitution of India and the State
is bound to protect and recognize those
rights. ”
128. When this Court has already recognised the
111constitutional right of transgenders of their self
identification and it has been further held that self
identification relates to their dignity. Dignity is a
human right which every human being possesses. Article
15 came for consideration in the said judgment where
this Court held that Article 15 has used the
expression 'citizen' and 'sex' which expressions are
'gender neutral'. The protection of fundamental rights
is equally applicable to transgenders. Paragraph 82
is as follows:
“82. Article 14 has used the expression
"person" and the Article 15 has used the
expression "citizen" and "sex" so also
Article 16. Article 19 has also used the
expression "citizen". Article 21 has used the
expression "person". All these expressions,
which are "gender neutral" evidently refer to
humanbeings. Hence, they take within their
sweep Hijras/Transgenders and are not as such
limited to male or female gender. Gender
identity as already indicated forms the core
of one's personal self, based on self
identification, not on surgical or medical
procedure. Gender identity, in our view, is
an integral part of sex and no citizen can be
discriminated on the ground of gender
identity, including those who identify as
third gender. ”129. This Court having recognised the right of
112transgenders to their selfidentity in which
transgenders also feel pride as human being, the mere
fact that under Enrolment and Update Regulations they
are required to provide demographic information
regarding gender does not, in any manner, affect their
right of privacy. There is no expectation of right of
privacy with regard to gender. The aforesaid right
having been clearly recognised by this Court,
expression of those rights of selfidentification
cannot, in any manner, be said to affect their right
to privacy. We, thus, conclude that with regard to
transgenders also no right of privacy is breached in
giving the demographic information. In so far as
biometric information as held above, ample
justification has been found which satisfied the three
fold test as laid down in Puttaswamy case, which is
equally applicable to transgender also.
130. Now, we come to the biometric information as
referred to in Section 2(g) and required to be given
in the process of enrolment by a person. Biometric
information means photographs, fingerprints, iris scan
113and other such biometric attributes of an individual
as may be specified by the regulations. Biometric
informations are of physical characteristics of a
person. A person has full bodily autonomy and any
intrusion in the bodily autonomy of a person can be
readily accepted as breach of his privacy. In Regina
(Wood) Vs. Commissioner of Police of the Metropolis
(supra), in paragraph 21, following has been laid down
by Lord LJ.:
“21. The notion of the personal autonomy of
every individual marches with the presumption
of liberty enjoyed in a free polity: a
presumption which consists in the principle
that every interference with the freedom of
the individual stands in need of objective
justification. Applied to the myriad
instances recognised in the Article 8
jurisprudence, this presumption means that,
subject to the qualifications I shall shortly
describe, an individual's personal autonomy
makes him should make him master of all
those facts about his own identity, such as
his name, health, sexuality, ethnicity, his
own image, of which the cases speak; and also
of the "zone of interaction" (the Von
Hannover case 40 EHRR I, paragraph 50)
between himself and others. He is the
presumed owner of these aspects of his own
self; his control of them can only be
loosened, abrogated, if the State shows an
objective justification for doing so.”
114131. U.S. Supreme Court in United States Vs. Antonio
Dionisio, 35 L.Ed. 2D 67 had occasion to consider
physical characteristic of a person's voice in context
of violation of privacy rights. With regard to
fingerprints, it was noticed that the fingerprinting
itself involves none of the probing into an
individual's private life. In paragraph Nos. 21, 22
following was stated:
“[21,22] In Katz v. United States, supra, we
said that the Fourth Amendment provides no
protection for what “a person knowingly
exposes to the public, even in his own home
or office . . ..” 389 U.S., at 351, 19 L Ed
2d 576. The physical characteristics of a
person's voice, its tone and manner, as
opposed to the content of a specific
conversation, are constantly exposed to the
public. Like a man's facial characteristics,
or handwriting, his voice is repeatedly
produced for others to hear. No person can
have a reasonable expectation that others
will not know the sound of his voice, any
more than he can reasonably expect that his
face will be a mystery to the world. As the
Court of Appeals for the Second Circuit
stated:“Except for the rare recluse who
chooses to live his life in complete
solitude, in our daily lives we
constantly speak and write, and while
the content of a communication is
entitled to Fourth Amendment
protection . . . the underlying
115identifying characteristics—the
constant factor throughout both
public and private communications—are
open for all to see or hear. There is
no basis for constructing a wall of
privacy against the grand jury which
does not exist in casual contacts
with strangers. Hence no intrusion
into an individual's privacy results
from compelled execution of
handwriting or voice exemplars;nothing is being exposed to the grand
jury that has not previously been
exposed to the public at large.”'
United States v. Doe (Schwartz), 457
F2d, at 898899.The required disclosure of a person's voice
is thus immeasurably further removed from the
Fourth Amendment protection than was the
intrusion into the body effected by the blood
extraction in Schmerber. “The interests in
human dignity and privacy which the Fourth
Amendment protects forbid any such intrusions
on the mere chance that desired evidence
might be obtained.” Schmerber v. California,
384 US, at 769770, 16L Ed 2d 908. Similarly,
a seizure of voice exemplars does not involve
the “severe, though brief, intrusion upon
cherished personal security,” effected by the
“patdown” in Terry—“surely . . . an
annoying, frightening and perhaps humiliating
experience.” Terry v. Ohio, 392 US, at 2425,
20 L Ed 2d 889. Rather, this is like the
fingerprinting in Davis, where, though the
initial dragnet detentions were
constitutionally impermissible, we noted that
the fingerprinting itself “involves none of
the probing into an individual's private life
and thoughts that marks an interrogation or
search.” Davis v. Mississippi, 394 US, at
727, 22 L Ed 2d 676: cf. Thom v. New York
116Stock Exchange, 306 F Supp 1002, 1009.”
132. The petitioners have relied upon S. and Marper Vs.
The United Kingdom, a judgment of Grand Chamber of
European Court of Human Rights dated 04.12.2008.
European Court of Human Rights on an application
submitted by Mr. S and Mr. Marper allowed their claim
of violation of Article 8 of Convention. Applicants
had complained that the authorities had continued to
retain their fingerprints and cellular samples and DNA
profiles after the criminal proceedings against them
had ended with an acquittal or had been discontinued.
In the above context, nature of fingerprints and DNA
samples came to be examined in reference of breach of
Article 8 of the Convention. The retention of DNA
samples and fingerprints was held to be interference
with the right to respect for private life. In
paragraph 84, following was held:
“84. The Court is of the view that the
general approach taken by the Convention
organs in respect of photographs and voice
samples should also be followed in respect of
fingerprints. The Government distinguished
the latter by arguing that they constituted
neutral, objective and irrefutable material
117and, unlike photographs, were unintelligible
to the untutored eye and without a comparator
fingerprint. While true, this consideration
cannot alter the fact that fingerprints
objectively contain unique information about
the individual concerned allowing his or her
identification with precision in a wide range
of circumstances. They are thus capable of
affecting his or her private life and
retention of this information without the
consent of the individual concerned cannot be
regarded as neutral or insignificant.”
133. One important observation, which has been made in
the above case was that on the question whether the
personal information retained by the authorities
involves any of the privatelife aspects, due regard
has to be given to the specific context in which the
information at issue has been recorded. Following was
stated in paragraph 67:
“67............... However, in determining
whether the personal information retained by
the authorities involves any of the private
life aspects mentioned above, the Court will
have due regard to the specific context in
which the information at issue has been
recorded and retained, the nature of the
records, the way in which these records are
used and processed and the results that may
be obtained (see, mutatis mutandis, Friedl,
cited above, §§4951, and Peck v. the United
Kingdom, cited above, §59).”
118134. The biometric data as referred to in Section
2(g) thus may contain biological attributes of an
individual with regard to which a person can very well
claim a reasonable expectation of privacy but whether
privacy rights have been breached or not needs to be
examined in the subject context under which the
informations were obtained.
135. Having found that biometric information of a
person may claim a reasonable expectation of privacy,
we have to answer as to whether obtaining biometric
information in context of enrolment breaches the right
of privacy of individual or not.
136. D.Y. Chandrachud, J. in Puttaswamy (supra) held
that all restraints on privacy, i.e. whether a person
has reasonable expectation of privacy, must fulfill
three requirements before a restraint can be held to
be justified. In Paragraph 319, following has been
held:
“310. While it intervenes to protect
legitimate state interests, the state must
nevertheless put into place a robust regime
that ensures the fulfillment of a threefold
119requirement. These three requirements apply
to all restraints on privacy (not just
informational privacy). They emanate from the
procedural and contentbased mandate of
Article 21. The first requirement that there
must be a law in existence to justify an
encroachment on privacy is an express
requirement of Article 21. For, no person can
be deprived of his life or personal liberty
except in accordance with the procedure
established by law. The existence of law is
an essential requirement. Second, the
requirement of a need, in terms of a
legitimate state aim, ensures that the nature
and content of the law which imposes the
restriction falls within the zone of
reasonableness mandated by Article 14, which
is a guarantee against arbitrary State
action. The pursuit of a legitimate state aim
ensures that the law does not suffer from
manifest arbitrariness. Legitimacy, as a
postulate, involves a value judgment.Judicial review does not reappreciate or
second guess the value judgment of the
legislature but is for deciding whether the
aim which is sought to be pursued suffers
from palpable or manifest arbitrariness. The
third requirement ensures that the means
which are adopted by the legislature are
proportional to the object and needs sought
to be fulfilled by the law. Proportionality
is an essential facet of the guarantee
against arbitrary State action because it
ensures that the nature and quality of the
encroachment on the right is not
disproportionate to the purpose of the law.
Hence, the threefold requirement for a valid
law arises out of the mutual interdependence
between the fundamental guarantees against
arbitrariness on the one hand and the
protection of life and personal liberty, on
the other. The right to privacy, which is an
120intrinsic part of the right to life and
liberty, and the freedoms embodied in Part
III is subject to the same restraints which
apply to those freedoms. ”137. We, thus, have to test the provisions of Aadhaar
Act in light of threefold test as have been laid down
above. The First requirement, which need to be
fulfilled is existence of law. Admittedly, Aadhaar
Act is a Parliamentary law, hence the existence of law
is satisfied. Mere existence of law may not be
sufficient unless the law is fair and reasonable. The
Aadhaar Act has been enacted with an object of
providing Aadhaar number to individuals for
identifying an individual for delivery of benefits,
subsidies and services. Several materials have been
brought on the record which reflect that in the
several studies initiated by the Government as well as
the World Bank and Planning Commission, it was
revealed that food grains released by the Government
for the beneficiaries did not reach the intended
beneficiaries and there was large scale leakages due
to the failure to establish identity. Reference to
121Audit Report No. 3 of 2000 of Comptroller Auditor
General of India is made in this regard. The Planning
Commission of India in its Performance Evaluation
Report titled “Performance Evaluation Report of
Targeted Public Distribution System(TPDS)” dated
March, 2005 found as follows:
I. Statewise figure of excess Ration Cards in
various states and the existence of over 1.52
Crore excess Ration Cards issued.
II. Existence of fictitious households and
identification errors leading to exclusion of
genuine beneficiaries.
III. Leakage through ghost BPL Ration Cards found
to be prevalent in almost all the States
under study.
IV. The leakage of food grains through ghost
cards has been tabulated and the percentage
of such leakage on an All India basis has
been estimated at 16.67%.
V. It is concluded that a large part of the
subsidized foodgrains were not reaching the
122target group.
138. The Law, i.e., Aadhaar Act, which has been
brought to provide for unique identity for delivery of
subsidies, benefits or services was a dire necessity,
which decision was arrived at after several reports
and studies. Aadhaar Act was, thus, enacted for a
legitimate State aim and fulfills the criteria of a
law being fair and reasonable. Learned Attorney
General has also placed reliance on report of United
Nations titled “Leaving No One Behind: the imperative
of inclusive development”, which has stated as
follows:
“The decision of India in 2010 to launch the
Aadhaar programme to enrol the biometric
identifying data of all its 1.2 billion
citizens, for example, was a critical step in
enabling fairer access of the people to
government benefits and services. Programmes
such as Aadhaar have tremendous potential to
foster inclusion by giving all people,
including the poorest and most marginalized,
an official identify. Fair and robust
systems of legal identity and birth
registration are recognised in the new 2030
Agenda for Sustainable Development as an
important foundation for promoting inclusive
societies.”
123139. Learned Attorney General has also relied on
Resolution of the United Nations General Assembly
dated 25.09.2015 titled “Transforming our World: the
2030 Agenda for Sustainable Development”. It is
submitted that by the said resolution, the following
goal was adopted”
“16.9 by 2030, provide legal identity for
all, including birth registration”140. In this context, judgment of U.S. Supreme Court in
Otis R. Bowen, Secretary of Health and Human Services,
et al. Vs. Stephen J. Roy et al., 476 U.S. 693 (1986)
is referred where the statutory requirement that an
applicant provide a social security number as a
condition of eligibility for the benefits in question
was held to be not violative. It was held that
requirement is facially neutral in religious terms,
applies to all applicants for the benefits involved,
and clearly promotes a legitimate and important public
interest. Chief Justice Burger writing the opinion of
the Court stated:
“The general governmental interests involved
here buttress this conclusion. Governments
124today grant a broad range of benefits;
inescapably at the same time the
administration of complex programs requires
certain conditions and restrictions. Although
in some situations a mechanism for individual
consideration will be created, a policy
decision by a government that it wishes to
treat all applicants alike and that it does
not wish to become involved in casebycase
inquiries into the genuineness of each
religious objection to such condition or
restrictions is entitled to substantial
deference. Moreover, legitimate interests are
implicated in the need to avoid any
appearance of favoring religious over
nonreligious applicants.The test applied in cases like Wisconsin v.
Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32
L.Ed.2d 15 (1972), is not appropriate in this
setting. In the enforcement of a facially
neutral and uniformly applicable requirement
for the administration of welfare programs
reaching many millions of people, the
Government is entitled to wide latitude. The
Government should not be put to the strict
test applied by the District Court; that
standard required the Government to justify
enforcement of the use of Social Security
number requirement as the least restrictive
means of accomplishing a compelling state
interest. Absent proof of an intent to
discriminate against particular religious
beliefs or against religion in general, the
Government meets its burden when it
demonstrates that a challenged requirement
for governmental benefits, neutral and
uniform in its application, is a reasonable
means of promoting a legitimate public
interest. ”
125141. Repelling an argument that requirement of
providing social security account number for obtaining
financial aid to dependent children violates the right
to privacy, following was held in Doris McElrath Vs.
Joseph A. Califano, in Para 11 :
“[11] The appellants' principal contention on
appeal is that the federal and state
regulations requiring dependent children to
acquire and submit social security account
numbers as a condition of eligibility for
AFDC benefits are statutorily invalid as
being inconsistent with and not authorized by
the Social Security Act. We find the
arguments advanced in support of this
contention to be without merit and hold that
the challenged regulations constitute a
legitimate condition of eligibility mandated
by the Congress under the Social Security
Act. Accord, Chambers v. Klein, 419 F. Supp.
569 (D.N.J. 1976), aff'd mem., 564 F.2d 89
(3d Cir. 1977); Green v. Philbrook, 576 F.2d
440 (2d Cir. 1978); Arthur v. Department of
Social and Health Services, 19 Wn. App. 542,
576 P.2d 921 (1978). We therefore conclude
that the district court properly dismissed
the appellants' statutory invalidity
allegations for failure to state a claim upon
which relief could be granted. ”142. Now, we come to third test, i.e., test of
proportionality. D.Y. Chandrachud, J. in Puttaswamy
(supra) has observed “Proportionality is an essential
facet of the guarantee against arbitrary State action
126because it ensures that the nature and quality of the
encroachment on the right is not disproportionate to
the purpose of the law”. In Modern Dental College and
Research Centre and Others Vs. State of Madhya Pradesh
and Others, (2016) 7 SCC 353, Dr. Sikri, J explaining
the concept of proportionality laid down following in
Paragraphs 64 and 65:
“64. The exercise which, therefore, to be
taken is to find out as to whether the
limitation of constitutional rights is for a
purpose that is reasonable and necessary in a
democratic society and such an exercise
involves the weighing up of competitive
values, and ultimately an assessment based on
proportionality i.e. balancing of different
interests.65. We may unhesitatingly remark that this
doctrine of Proportionality, explained
hereinabove in brief, is enshrined in Article
19 itself when we read Clause (1) along with
Clause (6) thereof. While defining as to what
constitutes a reasonable restriction, this
Court in plethora of judgments has held that
the expression “reasonable restriction” seeks
to strike a balance between the freedom
guaranteed by any of the subclauses of
Clause (1) of Article 19 and the social
control permitted by any of the clauses (2)
to (6). It is held that the expression
“reasonable” connotes that the limitation
imposed on a person in the enjoyment of the
right should not be arbitrary or of an
excessive nature beyond what is required in
the interests of public. Further, in order to
be reasonable, the restriction must have a
127reasonable relation to the object which the
legislation seeks to achieve, and must not go
in excess of that object {See P.P.Enterprises v. Union of India (1982) 2 SCC
33. At the same time, reasonableness of a
restriction has to be determined in an
objective manner and from the standpoint of
the interests of the general public and not
from the point of view of the persons upon
whom the restrictions are imposed or upon
abstract considerations {See Mohd. Hanif
Quareshi v. State of Bihar 1959 SCR 629). In
M.R.F. Ltd. v. State of Kerala (1998) 8 SCC
227, this Court held that in examining the
reasonableness of a statutory provision one
has to keep in mind the following factors:(1) The directive principles of State
Policy.(2) Restrictions must not be
arbitrary or of an excessive nature
so as to go beyond the requirement of
the interest of the general public.(3) In order to judge the
reasonableness of the restrictions,
no abstract or general pattern or a
fixed principle can be laid down so
as to be of universal application and
the same will vary from case to case
as also with regard to changing
conditions, values of human life,
social philosophy of the
Constitution, prevailing conditions
and the surrounding circumstances.(4) A just balance has to be struck
between the restrictions imposed and
the social control envisaged by
Article 19(6).128
(5) Prevailing social values as also
social needs which are intended to be
satisfied by the restrictions.(6) There must be a direct and
proximate nexus or reasonable
connection between the restrictions
imposed and the object sought to be
achieved. If there is a direct nexus
between the restrictions, and the
object of the Act, then a strong
presumption in favour the
constitutionality of the Act will
naturally arise. ”143. One of the submissions of the petitioner to
contend that proportionality test is not fulfilled in
the present case is; State did not adopt an
alternative and more suitable and least intrusive
method of identification, i.e., smart card or other
similar devices. While examining the proportionality
of a Statute, it has to be kept in mind that the
Statute is neither arbitrary nor of an excessive
nature beyond what is required in the interest of
public. The Statutory scheme, which has been brought
in place has a reasonable relation to the object which
the legislation seeks to achieve and the legislation
does not exceed the object. The object of Aadhaar Act
129as noticed above was to provide for unique identity
for purposes of delivery of benefits, subsidies and
services to the eligible beneficiaries and to ward of
misappropriation of benefits and subsidies, ward of
deprivation of eligible beneficiaries. European Court
of Justice has taken a view that the proportionality
merely involves an assessment that the measures taken
was not more than necessary. Reference is made to the
judgment of Digital Rights Ireland Ltd. Vs. Minister
for Communications [2015] QBECJ, wherein it was held:
“46 In that regard, according to the settled
case law of the court, the principle of
proportionality requires that acts of the EU
institutions be appropriate for attaining the
legitimate objectives pursued by the
legislation at issue and do not exceed the
limits of what is appropriate and necessary
in order to achieve those objectives: see
Afton Chemical Ltd v Secretary of State for
Transport (Case C343/09) [2010] ECR I7027,
para 45; the Volker case [2010] ECR I11063,
para 74; Nelson v Deutsche Lufthansa AG
(Joined Cases C581/10 and C629/10) [2013] 1
All ER (Comm) 385, para 71; Sky Osterreich
GmbH v Osterreichischer Rundfunk (Case C
283/11) [2013] All ER (EC) 633, para 50; and
Schaible v Land Baden Wiirttemberg (Case C
101/12) EU:C:2013:66I; 17 October 2013, para29.”
144. United Kingdom Supreme Court in AB Vs. Her
130Majesty's Advocate, [2017] UK SC 25, held that it is
not for the Court to identify the alternative
measures, which may be least intrusive. In Para 37
and 39, following has been held:
“37. I am not persuaded. It is important to
recall that the question of whether the
Parliament could have used a less intrusive
measure does not involve the court in
identifying the alternative measure which is
least intrusive. The court allows the
legislature a margin of discretion and asks
whether the limitation on the article 8 right
is one which it was reasonable for the
Parliament to propose: Bank Mellat v HM
Treasury (No 2) [2013] UKSC 38, [2014] AC
700, para 75 per Lord Reed;39. The balance, which this court is enjoined
to address, is different. It is the question
of a fair balance between the public interest
and the individual's right to respect for his
or her private life under article 8. The
question for the court is, in other words,
whether the impact of the infringement of
that right is proportionate, having regard to
the likely benefit of the impugned
provision.”145. The biometric information which are obtained for
Aadhaar enrolment are photographs, fingerprints and
iris scan, which are least intrusion in physical
autonomy of an individual. U.S. Supreme Court in John
Davis Vs. State of Mississippi, 394 US 721 (1969),
131indicated that Fingerprinting involves none of the
probing into an individual's private life and thoughts
that marks an interrogation or search. The physical
process by which the fingerprints are taken does not
require information beyond the object and purpose.
Therefore, it does not readily offend those principles
of dignity and privacy, which are fundamental to each
legislation of due process. One of the apprehension,
which was expressed by petitioners that since as per
definition of biometric information contained in
Section 2(g), further, biological attributes of an
individual may be specified by regulations, which may
be more intrusive. Section 2(g) use the word “such
biological attributes”. Thus, applying the principles
of ejusdem generis, the biological attributes can be
added by the regulations, has to be akin to one those
mentioned in Section 2(g), i.e. photographs,
fingerprints and iris scan. In event, such biological
attributes is added by regulations, it is always open
to challenge by appropriate proceedings but the mere
fact that by regulations any such biometric attributes
132can be added, there is no reason to accept the
contention that biological attributes, which can be
added may be disproportionate to the objective of the
Act. Biometric information, thus, which is to be
obtained for enrolment are not disproportionate nor
the provisions of Aadhaar Act requiring demographic
and biometric information can be said to be not
passing threefold test as laid down in Puttaswamy
(supra) case. We, thus, answer Issue Nos. 1 and 2 in
following manner:
Ans.1 and 2: (i) requirement under Aadhaar Act
to give one's demographic and
biometric information does not violate
fundamental right of privacy.
(ii) The provisions of Aadhaar Act requiring
demographic and biometric information
from a resident for Aadhaar Number
pass threefold test as laid down in
Puttaswamy (supra) case, hence cannot
be said to be unconstitutional.
133
ISSUE NOS.3,4 COLLECTION, STORAGE, RETENTION, USE,
AND 5 SHARING AND SURVEILLACE.
146. The Aadhaar Act provides complete architecture
beginning with enrolment. The enrolment means process
to collect demographic and biometric information from
individuals by enroling agencies. The enroling
agencies have to set up enrolment centers and have to
function in accordance with the procedure specified by
UIDAI. Section 8 contemplates for authentication for
Aadhaar number which authentication was done by
authority. When a request is made for identification
by any requesting entity in respect to biometric or
demographic information of Aadhaar number holder, the
authority may engage one or more entities to establish
and maintain central identity data repository. Section
28 provides for the security and confidentiality of
information which is to the following effect:
28. (1) The Authority shall ensure the
security of identity information and
authentication records of individuals.134
(2) Subject to the provisions of this Act,
the Authority shall ensure confidentiality of
identity information and authentication
records of individuals.(3) The Authority shall take all necessary
measures to ensure that the information in
the possession or control of the Authority,
including information stored in the Central
Identities Data Repository, is secured and
protected against access, use or disclosure
not permitted under this Act or regulations
made thereunder, and against accidental or
intentional destruction, loss or damage.(4) Without prejudice to subsections (1) and
(2), the Authority shall—(a) adopt and implement appropriate
technical and organisational
security measures;(b) ensure that the agencies,
consultants, advisors or other
persons appointed or engaged for
performing any function of the
Authority under this Act, have in
place appropriate technical and
organisational security measures for
the information; and(c) ensure that the agreements or
arrangements entered into with such
agencies, consultants, advisors or
other persons, impose obligations
equivalent to those imposed on the
Authority under this Act, and
require such agencies, consultants,
advisors and other persons to act
only on instructions from the
Authority.(5) Notwithstanding anything contained in any
other law for the time being in force, and
135save as otherwise provided in this Act, the
Authority or any of its officers or other
employees or any agency that maintains the
Central Identities Data Repository shall not,
whether during his service or thereafter,
reveal any information stored in the Central
Identities Data Repository or authentication
record to anyone:Provided that an Aadhaar number
holder may request the Authority to
provide access to his identity
information excluding his core
biometric information in such manner
as may be specified by regulations.147. The Act contains specific provision providing that
no core biometric information collected under the Act
is shared to anyone for any reason whatsoever or use
for any purpose other than generation of Aadhaar
number or authentication under this Act. The statute
creates injunction for requesting entity to use
identity information data for any purpose other than
that specified to the individual at the time for
submitting any identification. Section 29 provides for
not sharing information collected or created under
this Act, which is to the following effect:
“29. (1) No core biometric information,
collected or created under this Act, shall
be—
136(a) shared with anyone for any
reason whatsoever; or(b) used for any purpose other than
generation of Aadhaar numbers and
authentication under this Act.(2) The identity information, other than core
biometric information, collected or created
under this Act may be shared only in
accordance with the provisions of this Act
and in such manner as may be specified by
regulations.(3) No identity information available with a
requesting entity shall be—(a) used for any purpose, other than
that specified to the individual at
the time of submitting any identity
information for authentication; or
Security and confidentiality of
information.(b) disclosed further, except with
the prior consent of the individual
to whom such information relates.(4) No Aadhaar number or core biometric
information collected or created under this
Act in respect of an Aadhaar number holder
shall be published, displayed or posted
publicly, except for the purposes as may be
specified by regulations.”148. Section 30 itself contemplates that biometric
information are sensitive personal data or
information. There are strict conditions envisaged in
Section 33 for disclosure of information. The
137disclosure of information is contemplated only on two
contingencies. Firstly, when an order is passed by a
Court not inferior to that of District Judge and
secondly when the disclosure is made in the interest
of national security in pursuance of a direction of
the officer not below the rank of Joint Secretary to
the Government of India.
149. Chapter VII of the Act deals with the offences
and penalties for impersonation at the time of
enrolment penalty for disclosing identity information
is provided under Sections 34 to 37. Section 38
provides for penalty who accesses or secures access to
the Central Identities Data Repository. Section 39
provides for penalty who uses or tampers with the
data in the Central Identities Data Repository.
Section 40 provides for penalty whoever, being a
requesting entity, uses the identity information of an
individual in contravention of subsection (3) of
section 8. Section 41 deals with penalty for non
compliance by an enrolling agency or requesting
138entity. Section 42 deals with general penalty. Section
42 is as follows:
“42. Whoever commits an offence under this
Act or any rules or regulations made
thereunder for which no specific penalty is
provided elsewhere than this section, shall
be punishable with imprisonment for a term
which may extend to one year or with a fine
which may extend to twentyfive thousand
rupees or, in the case of a company, with a
fine which may extend to one lakh rupees, or
with both.”150. Regulations have been framed under the Act,
namely, (1) The Aadhaar (Enrolment and Update)
Regulations, 2016, (2) The Aadhaar (Authentication)
Regulations, 2016, (3) The Aadhaar (Data Security)
Regulations, 2016 and (4) The Aadhaar (Sharing of
Information) Regulations, 2016.
151. We have already noticed the detailed submissions
of learned counsel for UIDAI. Following are the
measures by which Security Data of privacy is
ensured. The security and data privacy is ensured in
the following manner:
i. The data sent to ABIS is completely
anonymised. The ABIS systems do not have
access to resident’s demographic
139information as they are only sent
biometric information of a resident with
a reference number and asked to de
duplicate. The deduplication result with
the reference number is mapped back to
the correct enrolment number by the
Authorities own enrolment server.ii. The ABIS providers only provide their
software and services. The data is stored
in UIDAI storage and it never leaves
the secure premises.iii. The ABIS providers do not store the
biometric images (source). They only
store template for the purpose of de
duplication (with reference number)
iv. The encrypted enrolment packet sent by
the enrolment client software to the
CIDRis decrypted by the enrolment
server but the decrypted packet is
never stored.v. The original biometric images of
fingerprints, iris and face are archived
and stored offline. Hence, they cannot
be accessed through an online network.vi. The biometric system provides high
accuracy of over 99.86%. The mixed
biometric have been adopted only to
enhance the accuracy and to reduce the
errors which may arise on account of some
residents either not having biometrics or
not having some particular biometric.152. After the enrolment and allotting an Aadhaar
number to individual the main function of the
authority is authentication of an Aadhaar number
140holder as and when request is made by the requesting
agency. The authentication facility provided by the
authority is under Section 3 of the Authentication
Regulations, 2016 which is to the following effect:
“3. Types of Authentication.—
There shall be two types of authentication
facilities provided by the Authority,
namely—(i) Yes/No authentication facility,
which may be carried out using any of
the modes specified in regulation 4(2);and
(ii) eKYC authentication facility,
which may be carried out only using OTP
and/ or biometric authentication modes
as specified in regulation 4(2).”153. Various modes of authentication are provided in
Regulation 4 of Authentication Regulations 2016, which
are: Demographic authentification; One time pinbased
authentication; Biometricbased authentification and
Multifactor authentification. A requesting entity may
choose suitable mode of authentication for particular
function or business function as per its requirement.
141154. Regulation 7 provides for capturing biometric
information by requesting entity which is to the
following effect:
“7. Capturing of biometric information by
requesting entity.—
(1) A requesting entity shall capture the
biometric information of the Aadhaar number
holder using certified biometric devices as
per the processes and specifications laid
down by the Authority.(2) A requesting entity shall necessarily
encrypt and secure the biometric data at the
time of capture as per the specifications
laid down by the Authority.(3) For optimum results in capturing of
biometric information, a requesting entity
shall adopt the processes as may be specified
by the Authority from time to time for this
purpose.”155. Regulation 9 deals with process of sending
authentification requests. SubRegulation (1) of
Regulation 9 contends the safe method of transmission
of the authentication requests.
156. The Aadhaar (Data Security) Regulations, 2016
contain detail provisions to ensuring data security.
Regulation 3 deals with measures for ensuring
information security. Regulation 5 provides security
142obligations of the agencies, consultants, advisors and
other service providers engaged by the Authority for
discharging any function relating to its processes.
157. The Aadhaar (Sharing of Information) Regulations,
2016 also contain provisions providing for
restrictions on sharing identity information. Sub
Regulation (1) of Regulation 3 provides that core
biometric information collected by the Authority under
the Act shall not be shared with anyone for any reason
whatsoever.
158. Sharing of Information Regulations, 2016 also
contain various other restrictions. Regulation 6
contains restrictions on sharing, circulating or
publishing of Aadhaar number which is to the following
effect:
“6. Restrictions on sharing, circulating or
publishing of Aadhaar number. —
(1) The Aadhaar number of an individual shall
not be published, displayed or posted
publicly by any person or entity or agency.
(2) Any individual, entity or agency, which
is in possession of Aadhaar number(s) of
Aadhaar number holders, shall ensure security
and confidentiality of the Aadhaar numbers
143and of any record or database containing the
Aadhaar numbers.(3) Without prejudice to subregulations (1)
and (2), no entity, including a requesting
entity, which is in possession of the Aadhaar
number of an Aadhaar number holder, shall
make public any database or record containing
the Aadhaar numbers of individuals, unless
the Aadhaar numbers have been redacted or
blacked out through appropriate means, both
in print and electronic form.(4) No entity, including a requesting entity,
shall require an individual to transmit his
Aadhaar number over the Internet unless such
transmission is secure and the Aadhaar number
is transmitted in encrypted form except where
transmission is required for correction of
errors or redressal of grievances.(5) No entity, including a requesting entity,
shall retain Aadhaar numbers or any document
or database containing Aadhaar numbers for
longer than is necessary for the purpose
specified to the Aadhaar number holder at the
time of obtaining consent.”159. The scheme of the Aadhaar Act indicates that all
parts of the entire process beginning from enrolment
of a resident for allocation of Aadhaar number are
statutory regulated.
160. The Authentication Regulations, 2016 also limit
the period for retention of logs by requesting entity.
144Regulation 18(1) which is relevant in this context is
as follows:
“18. Maintenance of logs by requesting
entity.
(1) A requesting entity shall maintain logs
of the authentication transactions processed
by it, containing the following transaction
details, namely:—(a) the Aadhaar number against which
authentication is sought;(b) specified parameters of
authentication request submitted;(c) specified parameters received as
authentication response;(d) the record of disclosure of
information to the Aadhaar number
holder at the time of authentication;and
(e) record of consent of the Aadhaar
number holder for authentication, but
shall not, in any event, retain the
PID information.”161. The residents’ information in CIDR are also
permitted to be updated as per provisions of the
Aadhaar (Enrolment and Update) Regulations, 2016. An
over view of the entire scheme of functions under the
Aadhaar Act and Regulations made thereunder indicate
that after enrolment of resident, his informations
145including biometric information are retained in CIDR
though in encrypted form. The major function of the
authority under Aadhaar Act is authentication of
identity of Aadhaar number holder as and when
requests are made by requesting agency, retention of
authentication data of requesting agencies are
retained for limited period as noted above. There are
ample safeguards for security and data privacy in the
mechanism which is at place as on date as noted above.
162. Shri Shyam Divan, learned senior counsel
appearing for the petitioners has passionately
submitted that entire process of authentication as is
clear from actual working of the Aadhaar programme
reveals that Aadhaar Act enables the State to put the
entire population of the country in an electronic
leash and they are tracked 24 hours and 7 days. He
submits that putting the entire population under
surveillance is nothing but converting the State into
a totalitarian State. Elaborating his submission,
Shri Divan submits that process of authentication
creates authentication records of (1) time of
146authentication, (2) identity of the requesting entity.
Both requesting entity and UIDAI have authentication
transactions data which record the technical details
of transactions. The devices which are used by the
requesting entities have IP address which enables
knowledge about geographical information of Aadhaar
number holder with knowledge of his location, details
of transaction, every person can be tracked and by
aggregating the relevant data the entire population is
put on constant surveillance. Aadhaar programme
endeavours all time mass surveillance by the State
which is undemocratic and violates the fundamental
rights of individual.
163. The meta data regarding authentication
transactions which are stored with the authority are
potent enough to note each and every transaction of
resident and to track his activities is nothing but
surveillance. Regulation 26 of Authentication
Regulations, 2016 provides storage of meta data
related to the transaction. Regulation 26 which is
relevant is as follows:
147
“26. Storage and Maintenance of
Authentication Transaction Data. — (1) The
Authority shall store and maintain
authentication transaction data, which shall
contain the following information:—(a) authentication request data
received including PID block;(b) authentication response data
sent;(c) meta data related to the
transaction;(d) any authentication server side
configurations as necessary Provided
that the Authority shall not, in any
case, store the purpose of
authentication.”164. We may first notice as to what is meta data which
is referred to in Regulation 26 above. The UIDAI
receives the requests for authentication of ANH. The
request for authentication received by requesting
agency does not contain any information as to the
purpose of authentication neither requesting agency
nor UIDAI has any record pertaining to purpose for
which authentication has been sought by Aadhaar number
holder. The meta data referred to in Regulation 26(c)
is only limited technical meta data.
148
165. Shri Kapil Sibal had submitted that CIDR holds
the entire Aadhaar database retained by CIDR. It has
become a soft target for internal/external/ indigenous
/foreign attacks and single point of failure. Shri
Sibal has referred to a RBI report which states:
“Thanks to Aadhaar, for the first time in the
history of India, there is now a readily
available single target for cyber criminals
as well as India’s external enemies. In a few
years, attacking UIDAI data can potentially
cripple Indian businesses and administration
in ways that were inconceivable a few years
ago. The loss to the economy and citizens in
case of such an attack is bound to be
incalculable.”166. He has further submitted that a digital world is
far more susceptible to manipulation than the physical
world. No legislation can or should allow an
individual’s personal data to be put at risk, in the
absence of a technologically assured and safe
environment. Such level of assurance is impossible to
obtain in the digital space. Biometric, core biometric
and demographic information of an individual, once
part of the digital world is irretrievable: a genie
out of the bottle that cannot be put back. The digital
world is a vehicle to benefit the information economy.
149A move from an information economy to creating an
architecture for an information polity has far
reaching consequences impacting the most personal
rights, protected by the right to privacy. The
technology acquired by the UIDAI has also been
criticised by the Opaque Foreign Technologies.
167. The above submissions have been strongly refuted
by learned Attorney General and learned counsel
appearing for the UIDAI. It is submitted by the
respondents that the above submissions regarding mass
surveillance have been made on misconception regarding
actual operation of the entire process.
168. The meta data which is aggregation of
authentication transactions does not contain any
detail of actual transaction done by ANH. In the
event, in a period of 30 days, 30 requesting agencies,
may be one or different, have requested for
authentication the UIDAI has only the recipient of
demographic/biometric of ANH authentication without
any information regarding purposes of authentication.
150Thus, even if authentication details are aggregated,
there is no information with the UIDAI regarding
purpose of authentication nor authentication leaves
for any trail so as to keep any track by UiDAI to know
the nature of transaction or to keep any kind of
surveillance as alleged. Section 32 subsection (3) of
the Aadhaar Act specifically prohibits the authority
from collecting or maintaining either directly or
indirectly any information for the purpose of
authentication.
169. Proviso to Regulation 26 is also to the same
effect i.e. provided that the authority shall not, in
any case, store the purpose of authentication.
170. Elaborating on CIDR, Shri Dwivedi submits that
CIDR is a centralised database which contains all
Aadhaar numbers issued with corresponding demographic
and biometric information. It is a “Protected System”
notified under Section 70 of Information Technology
Act, 2000. The storage involves end to end encryption,
logical partitioning, fire walling and anonymisation
151of decrypted biometric data. The encryption system
follows a private key/public model and the private key
is available only with UIDAI at the processing
location. Hence even if data packets are lost or
stolen the biometric information regarding the same
cannot be accessed. At the CIDR there is multilayer
technological security to afford protection from
hacking, and there is also deployment of armed forces
to prevent unauthorised physical access into the CIDR
Area. Additionally entry is electronically controlled.
There are CIDR at two location already and some other
locations are likely to be set up to ensure that data
is not lost even in the remote eventuality of a
disaster. The CIDR is centrally managed. The templates
of finger prints and iris data are generated in ISO
format and the same along with demographic data and
photo are stored securely in the authentication server
database. This database is used for authentication in
the manner provided in Aadhaar (Authentication)
Regulation 2016.
152
171. In view of above, the apprehension raised by
Shri Kapil Sibal that CIDR is a soft target is
misplaced.
172. To support his submission, Shri Shyam Divan,
learned counsel for the petitioner has placed reliance
on judgment of the United States Supreme Court in
United States vs. Antoine Jones, 132 S.Ct. 945 (2012).
173. A large number of foreign judgments touching
various aspects of accumulation of data, retention of
data, surveillance, has been cited by both the parties
to support their respective stand. It is necessary to
have an over view of the opinion expressed by various
Courts in other countries of the world. The present
age being the age of technology and information, the
issues pertaining to storage and retention of personal
data in different contexts have come up before several
Courts of different countries which also need to be
noted.
174. The petitioners have relied on European Court,
Human Rights in S. and Marper vs. The United Kingdom,
1532008 (48)EHRR 50. The applicants, S and Marper had
submitted two applications against the United Kingdom,
Great Britain and Northern Ireland under Article 34 of
the Convention for the Protection of Human Rights and
Fundamental Freedoms (the Convention). The applicants
complained that the authorities had continued to
retain their fingerprints and cellular samples and DNA
profiles after the criminal proceedings against them
had ended with an acquittal or had been discontinued.
The applicants had applied for judicial review of the
police decisions not to destroy the fingerprints and
samples which application was rejected. The Court of
appeal upheld the decision of the Administrative
Court. The House of Lords had also dismissed the
appeal on 22nd July, 2004. The House of Lords had taken
the view that the mere retention of fingerprints and
DNA samples did not constitute an interference with
the right to respect for private life but stated that,
if he were wrong in that view, he regarded any
interference as very modest indeed.
154
175. BARONESS HALE disagreed with the majority
considering that the retention of both fingerprint and
DNA data constituted an interference by the State in a
person’s right to respect for his private life and
thus required justification under the Convention. The
application of the applicant was taken by European
Court of Human Rights (Strasbourg Court). The
Strasbourg Court noticed that majority of the Council
of Europe member States allow the compulsory taking of
fingerprints and cellular samples in the context of
criminal proceedings. The United Kingdom is the only
member State expressly to permit the systematic and
indefinite retention of DNA profiles and cellur
samples of persons who have been acquitted or in
respect of whom criminal proceedings have been
discontinued.
176. Strasbourg Court held that the mere storing of
data relating to the private life of an individual
amounts to an interference within the meaning of
Article 8. It was further held that in determining
whether the personal information retained by the
155authorities involves any of the privatelife aspects
mentioned above, the Court will have due regard to the
specific context in which the information at issue has
been recorded and retained. In paragraph 67 following
has been laid down:
“67....However, in determining whether
the personal information retained by the
authorities involves any of the privatelife
aspects mentioned above, the Court will have
due regard to the specific context in which
the information at issue has been recorded
and retained, the nature of the records, the
way in which these records are used and
processed and the results that may be
obtained (see, mutatis mutandis, Friedl,
cited above, 4951, and Peck v. The United
Kingdom, cited above, 59).”177. Following was laid down in paragraph 73 77:
“73. Given the nature and the amount of
personal information contained in cellular
samples, their retention per se must be
regarded as interfering with the right to
respect for the private lives of the
individuals concerned. That only a limited
part of this information is actually
extracted or used by the authorities through
DNA profiling and that no immediate detriment
is caused in a particular case does not
change this conclusion (see Aman cited above,69).
77. In view of the foregoing, the Court
concludes that the retention of both cellular
samples and DNA profiles discloses an
156interference with the applicants’ right to
respect for their private lives, within the
meaning of Article 8(1) of the Convention.”178. The Court also considered the issue of retention
of fingerprints, and held that retention of
fingerprints may also give rise to important private
life concerns. The Court also held that the domestic
law must afford appropriate safeguards to prevent any
such use of personal data as may be inconsistent with
the guarantees of Article 8. Following was held in
paragraph 103:
“103. The protection of personal data is
of fundamental importance to a person’s
enjoyment of his or her right to respect for
private and family life, as guaranteed by
Article 8 of the Convention. The domestic law
must afford appropriate safeguards to prevent
any such use of personal data as may be
inconsistent with the guarantees of this
Article (see mutatis mutandis, Z., cited
above, 95). The need for such safeguards is
all the greater where the protection of
personal data undergoing automatic processing
is concerned, not least when such data are
used for police purposes. The domestic law
should notably ensure that such data are
relevant and not excessive in relation to the
purposes for which they are stored; and
preserved in a form which permits
identification of the data subjects for no
157longer than is required for the purpose for
which those data are stored.”179. United Kingdom Supreme Court had occasion to
consider the issue of retention of data in Regina
(Catt) v. Association of Chief Police Officers of
England, Wales and Northern Ireland and another,(2015)
2 WLR 664 – (2015) UKSC 9. The UK Supreme Court in the
above case also noticed the judgment of Strasbourg in
S. and Marper v. The United Kingdom. The appeal before
UK Supreme Court was concerned with the systematic
collection retention by police authorities of
electronic data about individuals and whether it is
contrary to Article 8 of the European Convention. The
appellant before the Court had accepted that it was
lawful for the police to make a record of the events
in question as they occurred, but contends that the
police interfered with their rights under Article 8 of
the Convention by thereafter retaining the information
on a searchable database. After noticing the
jurisprudence of the European Court of Human Rights
Lord Sumption stated following in paragraph 33:
158“33. Although the jurisprudence of the
European Court of Human Rights is exacting in
treating the systematic storage of personal
data as engaging article 8 and requiring
justification, it has consistently recognised
that (subject always to proportionality)
public safety and the prevention and
detection of crime will justify it provided
that sufficient safeguards exist to ensure
that personal information is not retained for
longer than is required for the purpose of
maintaining public order and preventing or
detecting crime, and that disclosure to third
parties is properly restricted: see
Bouchacourt v France, given 17 December 2009,
paras 6869, and Brunet v. France
(Application No.21010/10) (unreported) given
18 September 2014, para 36. In my opinion,
both of these requirements are satisfied in
this case. Like any complex system dependent
on administrative supervision, the present
system is not proof against mistakes. At
least in hindsight, it is implicit in the
2012 report of HMIC and the scale on which
the database was weeded out over the next two
years that the police may have been retaining
more records than the Code of Practice and
the MOPI guidelines really required. But the
judicial and administrative procedures for
addressing this are effective, as the facts
disclosed on this appeal suggest.”180. The preponderance of authorities on the subject
of retention of data is that retention of personal
data effecting personal life of an individual may
interfere in his right of privacy and the State can
justify its retention subject to proportionality and
159subject to there being sufficient safeguards to
personal information is not retained for longer than
it required.
181. Reverting back to the Aadhaar Act, it is clear
that requesting entity as well as authority are
required to retain authentication data for a
particular period and thereafter it will be archived
for five years and thereafter authentication data
transaction shall be deleted except such data which is
required by the Court in connection with any pending
dispute. We had already noticed that data which is
retained by the entity and authority for certain
period is minimal information pertaining to identity
authentication only no other personal data is
retained. Thus, provisions of Aadhaar Act and
Regulations made thereunder fulfill three fold test as
laid down in Puttaswamy case (supra), hence, we
conclude that storage and retention of data does not
violate fundamental right of privacy.
160
182. Now, we come to issue of surveillance, which has
been very strongly raised by petitioners. Shri Shyam
Divan, learned counsel for the petitioners has relied
on judgment of U.S. Supreme Court in United States Vs.
Antoine Jones, 132 S.Ct. 945 (2012). Antoine Jones,
owner and operator of a nightclub was under suspicion
of trafficking in narcotics. A warrant was issued
authorising installation of an electronic tracking
device on the jeep registered in the name of John's
wife. Agents installed a GPS tracking device in the
jeep when it was parked in a public parking. On the
basis of data obtained from the device, the Government
charged Jones for several offences. In trial, Jones
found a locational data obtained form the GPS device.
A verdict of guilt was returned, which on appeal was
reversed by United States, Appeal for District
Columbia.
183. Matter was taken to the U.S. Supreme Court.
Fourth Amendment provides “the right of the people to
be secured in their persons, houses, papers, and
effects, against unreasonable searches and seizures,
161shall not be violated.” Justice Scalia, delivering the
opinion of the Court affirmed the judgment of Court of
Appeal. Justice Sotomayor concurring wrote:
“I join the Court's opinion because I agree
that a search within the meaning of the
Fourth Amendment occurs, at a minimum,
“[w]here, as here, the Government obtains
information by physically intruding on a
constitutionally protected area.” Ante, at
950, n. 3. In this case, the Government
installed a Global Positioning System (GPS)
tracking device on respondent Antoine Jones'
Jeep without a valid warrant and without
Jones' consent, then used that device to
monitor the Jeep's movements over the course
of four weeks. The Government usurped Jones'
property for the purpose of conducting
surveillance on him, thereby invading
privacy interests long afforded, and
undoubtedly entitled to, Fourth Amendment
protection. See, e.g., Silverman v. United
States, 365 U. S. 505, 511512 S1 S.Ct. 679,
5 L.Ed.2d 734 (1961). ”184. The above case was a case where tracking device,
i.e., GPS was installed in the vehicle with purpose
and motive of surveillance and obtaining data to be
used against Jones. Present is not a case where it
can be said that Aadhaar infrastructure is designed in
a manner as to put a surveillance on Aadhaar number
holder (ANH).
162
185. Another judgment which is relied by Shri Shyam
Divan is judgment of European Court of Human Rights in
Strasbourg Court in Roman Zakharov Vs. Russia decided
on 04.12.2015. In the above case, the applicant
alleged that the system of secret interception of
mobile telephone communications in Russia violated his
right to respect for his private life and
correspondence and that he did not have any effective
remedy in that respect. In Para 148 of the judgment,
the case of the applicant was noted in the following
words:
“148. The applicant complained that the
system of covert interception of mobile
telephone communications in Russia did not
comply with the requirements of Article 8 of
the Convention, which reads as follows:“1. Everyone has the right to
respect for his private and family
life, his home and his
correspondence.2. There shall be no interference by
a public authority with the exercise
of this right except such as is in
accordance with the law and is
necessary in a democratic society in
the interests of national security,
public safety or the economic well
being of the country, for the
prevention of disorder or crime, for
the protection of health or morals,
163or for the protection of the rights
and freedoms of others.”186. The Court came to the following conclusion:
"175. The Court notes that the contested
legislation institutes a system of secret
surveillance under which any person using
mobile telephone services of Russia providers
can have his or her mobile telephone
communications intercepted, without ever being
notified of the surveillance. To that extent,
the legislation in question directly affects
all users of these mobile telephone services.”
187. The Strasbourg Court held that there had been
violation of Article 8 of the Convention. The above
case also does not help the petitioners in reference
to Aadhaar structure. Above case was a clear case of
surveillance by interception of mobile
telecommunication.
188. Another judgment relied by Shri Shyam Divan is
Digital Rights Ireland Ltd. Vs. Minister for
Communications, Marine and Natural Resources decided
on 08.04.2014. Para 1 of the judgment notice:
"These requests for a preliminary ruling
concern the validity of Directive 2006/24/EC
of the European Parliament and of the Council
of 15 March 2006 on the retention of data
164generated or processed in connection with the
provision of publicly available electronic
communications services or of public
communications networks and amending
Directive 2002/58/EC(OJ 2006 L 105, p. 54).”
189. Directive 2006/24 laid down the obligation on
the providers of publicly available electronic
communications services or of public communications
networks to retain certain data which are generated or
processed by them. Noticing various articles of the
Directives, the Court in Paragraph 27 noted:
“27. Those data, taken as a whole, may allow
very precise conclusions to be drawn
concerning the private lives of the persons
whose data has been retained, such as the
habits of everyday life, permanent or
temporary places of residence, daily or other
movements, the activities carried out, the
social relationships of those persons and the
social environments frequented by them.”190. The directives were held to be violating the
principles of proportionality. The above case was
also a case of retaining data pertaining to
communications by service providers. The retention of
communication data is a clear case of intrusion in
privacy. The above is also a case which in no manner
165help the petitioners when contrasted with the Aadhaar
architecture.
191. At this juncture, we may also notice one
submission raised by the petitioners that Aadhaar Act
could have devised a less intrusive measure/means. It
was suggested that for identity purpose, the
Government could have devised issuance of a smart
card, which may have contained a biometric information
and retain it in the card itself, which would not have
begged the question of sharing or transfer of the
data. We have to examine the Aadhaar Act as it
exists. It is not the Court's arena to enter into the
issue as to debate on any alternative mechanism, which
according to the petitioners would have been better.
Framing a legislative policy and providing a mechanism
for implementing the legislative policy is the
legislative domain in which Court seldom trench.
192. We may refer to a judgment of U.K. Supreme Court
AB Vs. Her Majesty's Advocate, [2017] UKSC 25, where
U.K. Supreme Court has not approved the arguments
166based on less intrusive means. Court held that
whether the Parliament would have used a less
intrusive means does not involve the Court in
identifying an alternative measure, which is least
intrusive. In Para 37, following has been laid down:
“37. I am not persuaded. It is important to
recall that the question of whether the
Parliament could have used a less intrusive
measure does not involve the court in
identifying the alternative measure which is
least intrusive. The court allows the
legislature a margin of discretion and asks
whether the limitation on the article 8 right
is one which it was reasonable for the
Parliament to propose: Bank Mellat v HM
Treasury (No 2) [2013] UKSC 38, [2014] AC
700, para 75 per Lord Reed; Animal Defenders
International v United Kingdom (2013) 57 EHRR
21, para 110. Had the 2009 Act provided that
the reasonable belief defence would not be
available if on an earlier occasion the
accused had been charged with an offence
which itself objectively entailed a warning
of the illegality of consensual sexual
activity with older children, the fact that
there were other options, which were less
intrusive, to restrict the availability of
that defence would not cause an infringement
of the individual's article 8 right. The
problem for the Lord Advocate in this appeal
is where to find such a warning. ”193. We may profitably note the judgment of Privy
Council arising from a decision of Supreme Court of
167Mauritius – Madhewoo Vs. State of Mauritius. The
case relates to a national identity card, which was
brought in effect by an Act namely, the National
Identity Card Act, 1985 providing for adult citizens
of Mauritius to carry identity cards. The Act was
amended in 2013 by which Government introduced a new
smart identity card, which incorporates on a chip on
the citizen's fingerprints and other biometric
information relating to his/her characteristics. A
citizen of the Republic of Mauritius did not apply for
National Identity Card and he challenged the validity
of the 2013 Act. The Supreme Court of Mauritius held
that the provisions of 1985 Act, which enforce the
compulsory taking and recording of fingerprints of a
citizen disclosed an interference with the appellant’s
rights guaranteed under Section 9(1) of the
Constitution. The Section 9(1) provided “except with
his own consent, no person shall be subject to the
search of his person or his private or the entry by
others in his premises.” Supreme Court had rejected
the challenge to the other provisions of the
168Constitution. Matter was taken to the Privy Council.
The challenge made before the Privy Council was
noticed in Para 7 of the judgment, which is to the
following effect:
“7. In this appeal the appellant challenges
the constitutionality of (a) the obligation
to provide fingerprints and other biometric
information under section 4, (b) the storage
of that material on the identity card under
section 5, (c) the compulsory production of
an identity card to a policeman under section
7(1A) in response to a request under section
7(1)(b), and (d) the gravity of the potential
penalties under section 9(3) for non
compliance. He claims, first, that the
implementation of the new biometric identity
card is in breach of sections 1, 2, 3, 4, 5,
7, 9, 15, 16 and 45 of the Constitution
coupled with article 22 of the Civil Code
(which provides that everyone has the right
to respect for his private life and empowers
courts with competent jurisdiction to prevent
or end a violation of privacy) and, secondly,
that the collection and permanent storage of
personal biometric data, including
fingerprints, on the identity card are in
breach of those sections of the Constitution
and that article of the Civil Code. ”194. The Privy Council agreed with the decision of
the Supreme Court that compulsory taking of
fingerprints and the extraction of minutiae involved
an interference with the appellant’s Section 9 rights
169which required to be justified under Section 9(2).
The challenge raised before the Privy Council has been
noticed in Para 25, which challenges were repelled.
Paras 25 and 26 are as follows:
“25. The appellant challenges the Supreme
Court’s evaluation because, he submits, the
creation of a reliable identity card system
does not justify the interference with his
fundamental rights. He submits that the
obligation to provide his fingerprints
interferes with his right to be presumed
innocent and also that an innocuous failure
to comply with section 4(2)(c) could give
rise to draconian penalties under section
9(3) of the Act (para 6 above). He also
points out that in India a proposal for a
biometric identity card was held to be
unconstitutional, and, in the United Kingdom,
libertarian political opposition resulted in
the repeal of legislation to introduce
biometric identity cards. The interference,
he submits, is disproportionate.26. In the Board’s view, these challenges do
not undermine the Supreme Court’s assessment.
First, the requirement to provide
fingerprints for an identity card does not
give rise to any inference of criminality as
it is a requirement imposed on all adult
citizens. It is true that, if circumstances
arose in which a police officer was empowered
to require the appellant to produce his
identity card and the government had issued
card readers, the authorities would have
access to his fingerprint minutiae which they
could use for the purposes of identification
in a criminal investigation. But that does
not alter the presumption of innocence.170
Secondly, the penalties in section 9(3) are
maxima for offences, including those in
section 9(1), which cover serious offences
such as forgery and fraudulent behaviour in
relation to identity cards. The subsection
does not mandate the imposition of the
maximum sentence for any behaviour. Thirdly,
while judicial rulings on international
instruments and the constitutions of other
countries can often provide assistance to a
court in interpreting the provisions
protecting fundamental rights and freedoms in
its own constitution, the degree of such
assistance will depend on the extent to which
the documents are similarly worded. ”195. As noticed above, learned counsel for the
petitioners has raised various issues pertaining to
security and safety of data and CIDR. Apprehensions
raised by the petitioners does not furnish any ground
to struck down the enactment or a legislative policy.
This Court in G. Sundarrajan Vs. Union of India and
Others. (2013) 6 SCC 620, had occasion to consider
India's National Policy and challenge to a Nuclear
Project, which was launched by the Government
upholding the legislative policy, the Court laid down
following in Paras 15 and 15.1:
“15. India's National Policy has been clearly
and unequivocally expressed by the
legislature in the Atomic Energy Act.171
National and International policy of the
country is to develop control and use of
atomic energy for the welfare of the people
and for other peaceful purposes. NPP has been
set up at Kudankulam as part of the national
policy which is discernible from the Preamble
of the Act and the provisions contained
therein. It is not for Courts to determine
whether a particular policy or a particular
decision taken in fulfillment of a policy, is
fair. Reason is obvious, it is not the
province of a court to scan the wisdom or
reasonableness of the policy behind the
Statute.15.1. Lord MacNaughten in Vacher Sons Ltd.
v. London Society of Compositors (1913) AC
107 HL has stated:“......Some people may think the
policy of the Act unwise and even
dangerous to the community......But a
Judicial tribunal has nothing to do
with the policy of any Act which it
may be called upon to interpret. That
may be a matter for private judgment.The duty of the Court, and its only
duty, is to expound the language of
the Act in accordance with the
settled rules of construction.”196. This Court also held that a project cannot be
stopped merely on the ground of apprehension. In the
present case, also lot of apprehensions of
possibilities of insecurity of data has been raised.
In India, there is no specific data protection laws
172like law in place in United Kingdom. In Privacy
judgment – Puttaswamy (supra), this Court has noticed
that Shri Krishna Commission is already examining the
issue regarding data protection and as has been stated
by learned Attorney General before us, after the
report is received, the Government will proceed with
taking steps for bringing a specific law on data
protection. We need not say anything more on the
above subject. After we have reserved the judgment,
Srikrishna Commission has submitted its report
containing a draft Personal Data Protection Bill, 2018
in July 2018. The report having been submitted, we
hope that law pertaining to Personal Data Protection
shall be in place very soon taking care of several
apprehensions expressed by petitioners.
197. The Aadhaar architecture is to be examined in
light of the statutory regime as in place. We have
noticed the regulations framed under Aadhaar Act,
which clearly indicate that regulations brings in
place statutory provisions for data protection,
restriction on data sharing and other aspects of the
173matter. Several provisions of penalty on data breach
and violation of the provisions of the Act and
regulations have been provided.
198. We have no reason to doubt that the project will
be implemented in accordance with the Act and the
Regulations and there is no reason to imagine that
there will be statutory breaches, which may affect the
data security, data protection etc. In view of
foregoing discussions, we are of the considered
opinion that Statutory regime as delineated by the
Aadhaar Act and the Regulations fulfills the three
fold test as laid down in Puttaswamy (supra) and the
law, i.e. Aadhaar Act gives ample justification for
legitimate aim of the Government and the law being
proportional to the object envisaged. The petitioners
during their submissions have also attacked various
provisions of Enrolment and Update Regulations,
Authentication Regulations, Data Security Regulations
and Sharing of Information Regulations. All the above
regulations have been framed in exercise of power
under Section 54 of the Act on the matters covered by
174the Act. We having held that by collection of data,
its retention, storage, use and sharing, no Privacy
Right is breached, we are of the view that related
regulations also pass the muster of threefold tests
as laid down in K.Puttaswamy case. The provisions of
Act in the above regard having passed the muster of
threefold tests, the related regulations also cannot
be held to breach Right of Privacy. Thus, challenge to
regulations relating to collection, storage, use,
retention and sharing fails and it is held that they
do not violate Constitutional Rights of Privacy. In
result, we answer the Issue Nos. 3, 4 and 5 in
following manner:
Ans. 3, 4, 5:
(i) Collection of data, its storage and use
does not violate fundamental Right of
Privacy.
(ii) Aadhaar Act does not create an architecture
for pervasive surveillance.
(iii) Aadhaar Act and Regulations provides
protection and safety of the data received
175from individuals.
Whether Section 7 OF Aadhaar Act is
Issue Nos. unconstitutional?6 and 7
Whether right to food, shelter etc.
envisaged under Article 21 shall take
precedence on the right to privacy of the
beneficiaries?199. Shri Pandit Jawahar Lal Nehru while concluding
debate on “Aims and Objects Resolution” on 22.01.1947
in the Constituent Assembly of India stated:
“The first task of this Assembly is to
free India through a new constitution to feed
the starving people and cloth the naked
masses and to give every Indian fullest
opportunity to develop himself according to
his capacity. This is certainly a great
task.”200. After attaining the freedom the country proceeded
to realise the dream and vision which founding fathers
of our democratic system envisaged. The Constitution
of India apart from enumerating various Fundamental
Rights including right to life has provided for
Directive Principles of State Policy under Chapter IV
of the Constitution which was to find objectives in
176governess of the country. Article 38 provided that
State shall strive to promote the welfare of the
people by securing and protecting as effectively as it
may a social order in which justice, social, economic
and political, shall inform all the institutions of
the national life. It further provided that the State
shall, in particular, strive to minimise the
inequalities in income, and endeavour to eliminate
inequalities in status, facilities and opportunities,
not only amongst individuals but also amongst groups
of people residing in different areas or engaged in
different vocations.
201. After enforcement of the Constitution almost all
the Governments worked towards the object of
elimination of poverty and to empower marginal/poor
section of the society. The endeavour of the
Government was always to frame policies keeping in
view the “little Indian” who is in the centre of all
policies and governance.
202. Section 7 of the Aadhaar Act is the most
important provision of the Aadhaar Act around which
177entire architecture of Aadhaar Act has been built.
Section 7 is to the following effect:
“7. The Central Government or, as the case
may be, the State Government may, for the
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 Aadhaar number or in the case
of an individual to whom no Aadhaar number
has been assigned, such individual makes an
application for enrolment: Provided that if
an Aadhaar 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.”203. The objects and reasons of the Act as noticed
above as well as the Preamble of the Act focus on
targeted delivery of financial and other subsidies,
benefits and services which are envisaged in Section
7. The petitioners challenge the constitutionality of
Section 7. They submit that Section 7 seeks to render
the constitutional and statutory obligations of the
State to provide benefits, subsidies and services,
conditional upon an individual parting with his or her
178biometric and demographic information. An individual’s
rights and entitlements cannot be made dependent upon
an invasion of his or her bodily integrity and his or
her private information which the individual may not
be willing to share with the State. The bargain
underlying Section 7 is an unconscionable,
unconstitutional bargain. An individual has
constitutional right to receive benefits, subsidies
and services which is fundamental right and it is
State’s obligation to provide for fulfillment of that
fundamental right. He submitted that there is no
rationale in enactment of Section 7 neither there was
any legitimate state interest nor the provision is
proportionate. The petitioners submit that provision
of requiring every person to undergo authentication to
avail benefits/services/ entitlements, falls foul of
Article 14. Since, firstly such mandatory
authentication has caused, and continues to cause,
exclusion of the most marginalised section of society;
and secondly this exclusion is not simply a question
of poor implementation that can be administratively
179resolved, but stems from the very design of the Act.
Learned counsel for the petitioners have referred to
and relied on several materials in support of their
submissions that working of Section 7 has caused
exclusion. Since a large number of persons who are
entitled to receive benefits, subsidies and services
are unable to get it due to not being able to
authenticate due to various reasons like old age,
change of biometric and other reasons. The petitioners
have referred to affidavits filed by several
individuals and NGOs who after field verification
brought materials before this Court to support their
submission regarding large scale exclusion. It is
further contended that State’s contention that
Circular dated 24.10.2017 has resolved implementation
issued cannot be accepted. The authentication system
in the Aadhaar Act is probabilistic. Biometric
technology does not guarantee 100% accuracy and it is
fallible, refers UIDAI’s own Report on “Role of
Biometric Technology in Aadhaar Entrolment” (2012) has
been made where Report stated that biometric accuracy
180after accounting for the biometric failure to enrol
rate, false positive identification rate, and false
negative identification rate, was 99.768% accuracy.
For a population over 119.22 crore enrolled in
Aadhaar, it is a shocking admission of the fact that
there are 27.65 lakh people who are excluded from
benefits linked to Aadhaar. It is contended that
validity of an act is to be judged not by its object
or form, but by its effect on fundamental rights.
Mandatory authentication at the point of use violates
Article 21. It is contended that the Government has
failed to discharge its burden of proof under Article
21. The State has also failed to satisfy the test of
proportionality which makes Section 7
unconstitutional.
204. The petitioners further submit that the claim of
the Government that by Aadhaar authentication the
State has been able to save 11 billion per annum is
incorrect and without any basis. It is further
submitted that massive savings under Mahatma Gandhi
National Rural Employment Guarantee Scheme under
181Financial Benefits Accrued on account for DBT/Aadhaar
since 2014 claims of substantial savings upto 201516
the amount of reported savings is shown as Rs.3000
crores and upto 201617 it is shown as Rs.11,741
crores. Referring to the claim of the Government that
he submitted facts of job cards could be only 67,637
were found to be job cards linked to more than one
Aadhaar number. Thus, maximum saving for this period
would be 127.88 crores compared to the inflated figure
of Rs.3000 crores. The Financial Benefits claimed
under PAHAL scheme was Rs.14,672 crores which is not
correct. Referring to Comptroller and Auditor General
Report, it is pointed out that with respect to 2014
15, the real outcome of savings is only 1.33 crores.
He submits that major saving was on account of
decrease in offtake of domestic subsidised cylinders
of consumer and decrease in fuel prices. On Public
Distribution System referring to answer to a question
in Lok Sabha on 26.07.2016 it is submitted that the
Minister of Consumer Affairs, Food and Public
182Distribution has stated only that approximately 2.33
crores ration cards were deleted during 20132016.
205. Learned Attorney General has referred to material
on record to justify the legitimate state aim which
led to enactment of Section 7. Learned Attorney
General refers to Report No.3 of 2000 of the
Comptroller and Auditor General of India which has
been brought on record as Annexure RI to the common
additional affidavit on behalf of respondents. He
submits that the Comptroller and Auditor General in
his Report states that 1.93 crore bogus ration cards
were found to be in circulation in 13 States. Report
further states that a signification portion of the
subsidised foodgrains and other essential commodities
did not reach the beneficiaries due to their
diversion in the open market. The Performance Report
of the Planning Commission of India titled
“Performance Evaluation Report of Targeted Public
Distribution System (TPDS)” dated March, 2005 which
has been brought on record as AnnexureR6 to the
183common additional affidavit on behalf of respondents
notes following:
i. Statewise figure of excess Ration Cards
in various states and the existence of
over 1.52 crore excess Ration Cards
issued [Page 362 of CAA]ii. Exercise of fictitious households and
identification errors leading to
exclusion of genuine beneficiaries.iii. Leakage through ghost BPL Ration Cards
found to be prevalent in almost all the
states under study.[Pg. 369 of CAA)iv. The Leakage of food grains through ghost
cards has been tabulated and the
percentage of such leakage on an All
India basis has been estimated at
16.67% [Pg.370 of CAA].v. It is concluded that a large part of the
subsidised food grains were not reaching
the target group.206. Similar reports regarding few subsidies have
been referred and relied.
207. Learned Attorney General has also relied on the
184report submitted by V.V. Giri National Labour
Institute and sponsored by the Department of Rural
Development, Ministry of Rural Development, Government
of India which examined various aspects of National
Rural Employment Guarantee Scheme while studying the
schedule of rates for National Rural Employment
Guarantee Scheme. In paragraph 12.8 (Annesure R4) to
the common additional affidavit on behalf of
respondents following has been stated:
2. “There was great fraud in making fake
cards, muster rolls were not maintained
properly, and work was not provided to job
seekers sometimes. In many cases, it was
found that workers performed one day’s
job, but their attendance was put for 33
days. The workers got money for one day
while wages for 32 days were
misappropriated by the people associated
with the functioning of NREGS.”208. Another report dated 09.11.2012 of National
Institute of Public Finance and Policy’s “A Cost
benefit analysis of Aadhaar” estimated that a leakage
of approximately 12 percent is being caused to the
Government on account of ghost workers and manipulated
muster rolls. Thirteenth Finance Commission Report for
18520102015 dated December, 2000 in Chapter 12 states:
“creation of a biometricbased unique
identity for all residents in the country has
the potential to address need of the
government to ensure that only eligible
persons are provided subsidies and benefits
and that all eligible persons are covered.”209. Various other reports have been referred to and
relied by Learned Attorney General to substantiate his
case that there was large leakage and pilferation of
subsidies which were allocated by the Government under
different schemes.
210. This Court had occasion to consider public
distribution system in PUCL vs. Union of India, (2011)
14 SCC 331, the Court noticed the report of High
Powered Committee headed by Justice D.P. Wadhwa,
retired Judge of this Court who had submitted report
on the Public Distribution System. One of the actions
suggested by the Committee was noticed in paragraphs 2
and 12 , Component II:
“2. In order to implement this system across
the country, the following actions are
suggested by the Committee:… … …
186Component II: Electronic authentication
of delivery and payments at the fair price
shop level. In order to ensure that each
cardholder is getting his due entitlement,
computerisation has to reach literally every
doorstep and this could take long. Moreover,
several States have already started
implementing smart cards, food coupons, etc.
which have not been entirely successful.
Reengineering these legacy systems and
replacing it with the online Aadhaar
authentication at the time of foodgrain
delivery will take time. This is therefore
proposed as Component II.12. As far as possible, the State Governments
should be directed to link the process of
computerisation of Component 2 with Aadhaar
registration. This will help in streamlining
the process of biometric collection as well
as authentication. The States/UTs may be
encouraged to include the PDs related KYR+
field in the data collection exercise being
undertaken by various Registrars across the
country as part of the UID (Aadhaar)
enrolment.”211. This Court again in the same proceeding passed
another judgment on 16.03.2012 PUCL vs. Union of
India, (2013) 14 SCC 368 in which following was stated
in paragraphs 2 and 4:
“2. There seems to be a general consensus
that computerisation is going to help the
public distribution system in the country in
a big way. In the affidavit it is stated that
the Department of Food and Public
Distribution has been pursuing the States to
187undertake special drive to eliminate
bogus/duplicate ration cards and as a result,
209.55 lakh ration cards have been eliminated
since 2006 and the annual saving of foodgrain
subsidy has worked out to about Rs 8200
crores per annum. It is further mentioned in
the affidavit that endtoend computerisation
of public distribution system comprises
creation and management of digitised
beneficiary database including biometric
identification of the beneficiaries, supply
chain management of TPDS commodities till
fair price shops.4. In the affidavit it is further mentioned
that the Government of India has set up a
task force under the Chairmanship of Mr
Nandan Nilekani, Chairman, UIDAI, to
recommend, amongst others, an IT strategy for
the public distribution system. We request Mr
Nandan Nilekani to suggest us ways and means
by which computerisation process of the
public distribution system can be expedited.
Let a brief report/affidavit be filed by Mr
Nandan Nilekani within four weeks from
today.”212. As noted above the figures as claimed by the
respondents regarding benefits after implementation of
Aadhaar scheme in the MGNREGA and PDS etc. are refuted
by the petitioners. Petitioners’ case is that amounts
of savings which are claimed are not correct and at
best there was only meager benefit of savings from the
implementation of the scheme. We need not to enter
188into the issue regarding respective claims in the
above regard. The reasons which led to enactment of
Section 7 that benefits and subsidies are
substantially diverted and are not able to reach have
been made out even if saving were not substantial but
meager.
213. The report and material which have been brought
on record by the Government fully demonstrate the
legitimate aim of the State in enacting Section 7.
This Court in Francis Coralie Mullin vs.
Administrator, Union Territory of Delhi and others,
1981 (1) SCC 608, while elaborating on right of life
under Article 21, held that the right to life includes
the right to live with dignity and all that goes along
with it namely the bar necessaries of life such as
adequate nutrition, clothing and shelter.
214. The United Nation under Universal Declaration of
Human Rights also acknowledges everyone has a right to
standard of living which includes food, clothing,
housing and medical care. Article 25 of the
Declaration which was made in 1948 is as follows:
189“25.1 Everyone has the right to a standard
of living adequate for the health and well
being of himself and of his family, including
food, clothing, housing and medical
care and
necessary social services, and the right to
security in the event of unemployment,
sickness, disability, widowhood, old age or
other lack of livelihood in circumstances
beyond his control.”215. The English author, JOHN BERGER said:
“The poverty of our century is unlike that of
any other. It is not, as poverty was before,
the result of natural scarcity, but of a set
of priorities imposed upon the rest of the
world by the rich. Consequently, the modern
poor are not pitied...but written off as
trash.”216. The identification of the poor, as was referred
by John Berger is the first step to realise the UN
Declaration of Human Rights as well as the Fundamental
Rights guaranteed under the Constitution of India. The
Aadhaar Act brings into existence a process of
identification which is more accurate as compared to
other identity proofs.
190
217. At this stage, we need to notice one more
submission which was raised by the learned Attorney
General. It has been submitted by the learned Attorney
General that subsidies and benefits under Section 7 of
the Aadhaar Act are traceable to Article 21. It is
submitted that if the rights which are sought to be
realised by means of Section 7 are juxtaposed against
the right of privacy, the former will prevail over the
latter. The issue is as to whether the State by
enlivening right to food and shelter envisaged under
Article 21 encroach upon the right of privacy ? There
cannot be a denial that there may be inter se conflict
between fundamental rights recognised by the
Constitution in reference to a particular person. The
Court has to strive a balance to leave enough space
for exercise of both the fundamental rights.
218. It cannot be accepted that while balancing the
fundamental rights one right has to be given
preference. We may notice that privacy judgment i.e.
Puttaswamy case has noticed and already rejected
191this argument raised by the learned Attorney General
in paragraph 266 in the following words:
“266. The Attorney General argued before us
that the right to privacy must be forsaken in
the interest of welfare entitlements provided
by the State. In our view, the submission
that the right to privacy is an elitist
construct which stands apart from the needs
and aspirations of the large majority
constituting the rest of society, is
unsustainable. This submission betrays a
misunderstanding of the constitutional
position. Our Constitution places the
individual at the forefront of its focus,
guaranteeing civil and political rights in
Part III and embodying an aspiration for
achieving socioeconomic rights in Part IV.
The refrain that the poor need no civil and
political rights and are concerned only with
economic wellbeing has been utilised through
history to wreak the most egregious
violations of human rights....”219. One of the submissions which has been raised
by the petitioners targeting the Aadhaar
authentication is that biometric system under the
Aadhaar architecture is probabilistic. Biometric
technology does not guarantee 100% accuracy and it is
fallible, with inevitable false positives and false
negatives that are design flaws of such a
probabilistic system. We have noted above the reliance
192on UIDAI’s Report of the year 2012 where UIDAI itself
has claimed that biometric accuracy was 99.768%. The
petitioner is still criticising that since .232%
failures are there which comes to 27.65 lakh people
who are excluded from benefits linked to Aadhaar. The
above submission of the petitioner ignores one aspect
of the matter as has been contended by the respondents
that in case where there is biometric mismatch of a
person even possession of an Aadhaar number is treated
sufficient for delivery of subsidies and benefits.
Thus, physical possession of Aadhaar card itself may
mitigate biometric mismatch. However, in case of mis
match instruments are there to accept other proof of
identity, the respondents have referred to Circular
dated 24.10.2017 issued by UIDAI. The Circular dated
24.10.2017 has been criticised by the petitioners
stating that violation of right cannot be left to
vagaries of administration. There cannot be any
dispute to the above propositions. It is the
obligation of the State to ensure that there is no
violation of fundamental rights of a person. Section 7
193is an enabling provision which empowers the State
Government to require that such individual undergo
authentication for receipt of a subsidy, benefit or
service but neither Section 7 nor orders issued by the
Central Government and State Government can be read
that in the event authentication of a person or
beneficiary fails, he is not to be provided the
subsidies and benefits or services. The provision is
couched as an enabling provision but it cannot be read
as a provision to negate giving subsidies, benefits or
services in the event of failure of authentication. We
are of the view that Circular dated 24.10.2017 which
fills a gap and is a direction facilitating delivery
of benefits and subsidies does not breach by
provisions of the Act.
220. Now, we come to arguments of exclusion as
advanced by the petitioners in support of their
submission that exclusion makes Section 7 arbitrary
and violative of Articles 14 and 21. From the material
brought on record by the parties, we have no reason to
doubt that there has been denial to few persons due to
194failure of authentication. There is ample material on
record to indicate that prior to enforcement of
Aadhaar Scheme there had been large number of denial
of benefits and subsidies to real beneficiaries due to
several reasons as noted above. Functioning of scheme
formulated by the Government for delivery of benefits
and subsidies to deserving persons is a large scale
scheme running into every nook and corner of the
country. When such scheme of Government is
implemented, it is not uncommon that there may be
shortcomings and some denial. There is no material on
record to indicate that as compared to nonreceipt of
eligible beneficiaries prior to enforcement of the
Act, there is increase of failure after the
implementation of the Act. It cannot be accepted that
few cases of exclusion as pointed out by the
petitioners makes Section 7 itself arbitrary and
violative of Articles 14 and 21. Pitfalls and
shortcomings are to remove from every system and it
has been fairly submitted by the learned Attorney
General as well as learned counsel for the UIDAI that
195as and when difficulties in implementation and cases
of denial are brought into the notice, remedial
measures are taken. The respondents are still ready to
take such remedial measures to ensure that there is no
denial of subsidies to deserving persons. We, however,
are of the view that denial of delivery of benefits
and subsidies to deserving persons is a serious
concern and violation of the rights of the persons
concerned. It has to be tackled at all level and the
administration has to gear up itself and
implementation authority has to gear up itself to
ensure that rightful beneficiaries are not denied the
constitutional benefits which have been recognised and
which are being implemented by the different schemes
of the Government. Both the Government and UIDAI are
fully empowered to make Rules and Regulations under
Sections 53 and 54 of the Aadhaar Act respectively and
exclusions have to be taken care by exercising the
power under Section 53 by the Central Government and
under Section 54 by the UIDAI to remedy such
shortcomings and denial. We are sure that both the
196Central Government and UIDAI shall advert to the
exclusionary factors.
221. We may also notice a judgment of the US Supreme
Court in Otis R. Bowen, Secretary of Health and Human
Services, et al. vs. Stephen J. Roy et al., 476 US 693
(1986). The US Supreme Court held that statutory
requirement that a state agency utilise Social
Security numbers in administering the programs in
question does not violate the Free Exercise Clause.
The appellants applied and received benefits under
the Aid to Families with Dependent Children program
and the Food Stamp program. They, however, refused to
comply, with the requirement that participants in
these programs furnish their state welfare agencies
with the Social Security numbers of the members of
their household as a condition of receiving benefits.
Appellants had contended that obtaining a Social
Security number for their 2yearold daughter, would
violate their Native American religious beliefs. On
refusal to give Social Number, benefits payable to the
appellants were terminated. The claim of the
197appellants was dismissed. The challenge raised by the
appellants was noticed in the following words:
“Appellees raise a constitutional challenge
to two features of the statutory scheme
here.4 They object to Congress' requirement
that a state AFDC plan "must . . . provide
(A) that, as a condition of eligibility under
the plan, each applicant for or recipient of
aid shall furnish to the State agency his
social security account number." 42 U.S.C. §
602(a)(25) (emphasis added). They also object
to Congress' requirement that "such State
agency shall utilize such account numbers . .
. in the administration of such plan." Ibid.
(emphasis added).5 We analyze each of these
contentions, turning to the latter contention
first.”222. The U.S. Supreme Court upheld the requirement of
providing of Social Security number. Following has
been observed:
“The general governmental interests involved
here buttress this conclusion. Governments
today grant a broad range of benefits;inescapably at the same time the
administration of complex programs requires
certain conditions and restrictions. Although
in some situations a mechanism for individual
consideration will be created, a policy
decision by a government that it wishes to
treat all applicants alike and that it does
not wish to become involved in casebycase
inquiries into the genuineness of each
religious objection to such condition or
restrictions is entitled to substantial
198deference. Moreover, legitimate interests are
implicated in the need to avoid any
appearance of favoring religious over
nonreligious applicants.The test applied in cases like Wisconsin v.
Yoder, U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15
(1972), is not appropriate in this setting.
In the enforcement of a facially neutral and
uniformly applicable requirement for the
administration of welfare programs reaching
many millions of people, the Government is
entitled to wide latitude. The Government
should not be put to the strict test applied
by the District Court; that standard required
the Government to justify enforcement of the
use of Social Security number requirement as
the least restrictive means of accomplishing
a compelling state interest.17 Absent proof
of an intent to discriminate against
particular religious beliefs or against
religion in general, the Government meets its
burden when it demonstrates that a challenged
requirement for governmental benefits,
neutral and uniform in its application, is a
reasonable means of promoting a legitimate
public interest.”223. Another case of the Appellate Division of the
Supreme Court of the State of New York which needs to
be noticed is in the matter of Buchanan v. Wing, 664
N.Y. 2d 865. In the above case petitioners were
recipients of Aid to Families with Dependent Children,
the facts of the case have been noticed in the
following words:
199
“Petitioners and their four minor children
are recipients of Aid to Families with
Department Children (hereinafter ADC) (Social
Services Law 343 et seq.) and food stamps
from the Broome County Department of Social
Services (hereinafter the Department). In
February 1996, petitioners received notice
from the Department that they were to
participate in an identity verification
procedure known as the automated finger
imaging system (hereinafter AFIS) as a
condition of eligibility for benefits
required by 18 NYCRR 351.2(a)(245 A.D. 2d635). Petitioners responded that they would
not participate because of their religious
convictions. Respondent Commissioner of the
Department thereafter discontinued their ADC
and food stamp entitlements for failure to
comply.”224. The petitioners refused to participate in an
identify verification by procedure known as automated
finger imaging system which was a condition of
eligibility for benefits. Upholding the process of
verification by finger imaging following was laid
down:
“We have examined petitioners’ constitutional
claims and find them to be without merit. In
our view, petitioners’ failure to articulate
a viable claim that they are being required
to participate in an invasive procedure that
is prohibited by their religious beliefs is
dispositive of their arguments claiming a
violation of their freedom to exercise their
religion pursuant to the Federal and State
200Constitutions (US Const 1st Amend; NY Const,
art I, 3). We are also unpersuaded by
petitioners’ contention that the Department
violated NY Constitution, article XVII, 1
(which provides that aid and care of the
needy are public concerns and shall be
provided by the State) by discontinuing their
public assistance benefits. Since petitioners
cannot be classified as needy until such time
as they are finger imaged to determine
whether they are receiving duplicate
benefits, no violation of this constitutional
provision has been stated. Moreover, contrary
to petitioners’ arguments, the discontinuance
of public assistance to their entire family
unit (see, 18 NYCRR 352.30)(245 A.D. 2d 637)
does not infringe the constitutional rights
of their children (who are not named
petitioners in light of valid legislation
premising the eligibility of the children
within the family unit upon the eligibility
of the entire household (see, Matter of
Jessup v D’Elia, 69 N.Y. 2d 1030).”225. Another judgment which has been relied by the
respondents is Doris McElrath v. Joseph A. Califano,
Jr., Secretary of Health, Education and Welfare, 615
F.2d 434. Under Social Security Act, 1935, a public
assistance program of federal and state cooperation
providing financial aid to needy dependent children
and the parents or relatives with whom they reside,
one of the conditions which was added so that as a
condition of eligibility under the plan, each
201applicant for or recipient of aid shall furnish to the
State agency his social security account number. The
contention of the appellant was noticed in paragraph
11 which is to the following effect:
“[11] The appellants' principal contention on
appeal is that the federal and state
regulations requiring dependent children to
acquire and submit social security account
numbers as a condition of eligibility for
AFDC benefits are statutorily invalid as
being inconsistent with and not authorized by
the Social Security Act. We find the
arguments advanced in support of this
contention to be without merit and hold that
the challenged regulations constitute a
legitimate condition of eligibility mandated
by the Congress under the Social Security
Act. Accord, Chambers v. Klein, 419 F. Supp.
569 (D.N.J. 1976), aff'd mem., 564 F.2d 89
(3d Cir. 1977); Green v. Philbrook, 576 F.2d
440 (2d Cir. 1978); Arthur v. Department of
Social and Health Services, 19 Wn. App. 542,
576 P.2d 921 (1978). We therefore conclude
that the district court properly dismissed
the appellants' statutory invalidity
allegations for failure to state a claim upon
which relief could be granted.”226. The appellant had also contended that disclosure
of social security account number violates their
constitutional rights to privacy. Said argument was
202rejected. While rejecting the argument following was
stated in paragraph 20:
“[20] Finally, the appellants maintain that
the social security account number disclosure
requirement violates their constitutional
rights to privacy and to equal protection of
the law. We disagree. The constitutional
guarantee of the right to privacy embodies
only those personal rights that can be deemed
"fundamental" or "implicit in the concept of
ordered liberty." Roe v. Wade, : 410 U.S.113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147
(1973). It is equally wellsettled that
"[w]elfare benefits are not a fundamental
right . . . ." Lavine v. Milne, 424 U.S. 577,
584, n. 9, 96 S.Ct. 1010, 1015, 47 L.Ed.2d
249 (1976). Accordingly, we regard the
decision of Mrs. McElrath whether or not to
obtain social security account numbers for
her two minor children in order to receive
welfare benefits as involving neither a
fundamental right nor a right implicit in the
concept of ordered liberty. Chambers v.Klein, 419 F. Supp. 569, 583 (D.N.J. 1976),
aff'd mem. 564 F.2d 89 (3d Cir. 1977). This
case is not concerned with a decision
impacting the privacy of the appellants on
the magnitude of criminal sanctions or an
absolute prohibition on the appellants'
conduct. See, e. g., Griswold v. Connecticut,
: 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.652d
510 (1965); Eisenstadt v. Baird,: 405 U.S.
438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).
Rather, it is concerned with a condition of
AFDC eligibility and the only sanction for
not complying is to forego certain
governmental benefits. Simply stated, the
claim of the appellants to receive welfare
benefits on their own informational terms
does not rise to the level of a
203constitutional guarantee. Moreover, the
contention that disclosure of one's social
security account number violates the right to
privacy has been consistently rejected in
other related contexts. See, e.g., Cantor v.
Supreme Court of Pennsylvania, 353 F. Supp.
1307, 132122 (E.D.Pa. 1973); Conant v. Hill,
326 F. Supp. 25, 26 (E.D.Va. 1971).”227. The trends of judgments as noted above do
indicate that condition for identification or
disclosing particular identity number for receiving a
benefit from State does not violate any of the
Constitutional rights. We, thus, find that Section 7
fulfills the three fold tests as laid down in
Puttaswamy case.
228. Shri Gopal Subramanium relying on Article 243G
and Eleventh Schedule of the Constitution submits that
Aadhaar Scheme and its authentication for benefits,
subsidies and services militate against the above
Constitution provision and hence are ultra vires to
the Constitution. Article 243G deals with powers,
authority and responsibilities of Panchayats, which is
to the following effect:
204243G. Powers, authority and responsibilities
of Panchayats: Subject to the provisions of
this Constitution the Legislature of a State
may, by law, endow the Panchayats with such
powers and authority and may be necessary to
enable them to function as institutions of
selfgovernment and such law may contain
provisions for the devolution of powers and
responsibilities upon Panchayats, at the
appropriate level, subject to such conditions
as may be specified therein, with respect
to(a) the preparation of plans for economic
development and social justice;(b) the implementation of schemes for
economic development and social justice as
may be entrusted to them including those in
relation to the matters listed in the
Eleventh Schedule.229. Article 243G(b) refers to Eleventh Schedule to the
Constitution. Eleventh Schedule contains list of several
matters. Shri Subramanium relies on Item No. 11, 12, 16,
17, 23, 25 and 28, which are as under:
11. Drinking Water.
12. Fuel and Fodder.
16. Poverty alleviation programme.
17. Education, including primary and secondary
schools.
205
23. Health and Sanitation, including hospitals,
primary health centres and dispensaries.
25. Women and child development.
28. Public distribution system.
230. Article 243G is an enabling provision, which enable
the State Legislature, by law, to endow the Panchayats
with such powers and authorities as may be necessary to
enable them to function as institutions of self
government. The Items on which State, by law, can endow
Panchayats in Eleventh Schedule are items to deal with
subjects enumerated therein. For example, Item No. 16
deals with Poverty alleviation programme and Item No. 28
deals with Public Distribution System. State is fully
competent to make laws to authorise the Panchayats to
take over all the matters enumerated in Eleventh
Schedule. The question to be considered is as to whether
the Aadhaar Act in any manner militate with
Constitutional provisions of Article 243G. The Aadhaar
Act is an Act enacted by Parliament, which is referable
to Entry 97 of List I. The Aadhaar Act has been enacted
206to provide for efficient, transparent, and targeted
delivery of subsidies, benefits and services, the
expenditure for which is incurred from the Consolidated
Fund of India, to individuals residing in India through
assigning of unique identity numbers to such individuals
and for matters connected therewith. The Act, thus, has
been enacted to regulate the expenditure, which is
incurred from the Consolidated Fund of India. No
conflict between the Aadhaar Act and any law, which may
be enacted by State under List II is seen. Even if any
conflict is supposed, the Doctrine of Pith and Substance
has to be applied to find out nature of two legislations.
In Pith and Substance, the Aadhaar Act cannot be said to
be entrenching upon any law, which may be made by the
State under Item No.5 of List II. In this context,
reference is made to judgment of this Court in State of
Uttar Pradesh and Another Vs. Zila Parishad, Ghaziabad
and Another, (2013) 11 SCC 783. In the above case,
provisions of Article 243G came to be considered in
reference to public distribution orders issued by the
State Government in exercise of delegated powers under
207Essential Commodities Act, 1955. The Central Government
in exercise of power under Section 3 of the Essential
Commodities Act, the Government of U.P. issued an order
dated 10.8.1999, conferring the power to allot and cancel
the fair price shops in rural areas, with certain
guidelines, on the Gram Panchayats. Subsequently, the
State Government withdrew that order and reinforced the
earlier policy dated 03.07.1990 under which the power was
vested with the District Magistrate or an authority
designated by him to allot or cancel the licenses for
Fair Price Shops. The Central Government, in exercise of
power under Section 3 of the Essential Commodities Act,
issued an order dated 31.8.2001, wherein its powers were
delegated to State Government. State Government, in
pursuance thereof, issued an order designating the
officers of the District level, viz., District
Magistrate, SubDivisional Magistrate, District Supply
Officer to ensure the proper supply and distribution of
such commodities. Zila Parishad, Ghaziabad filed a Writ
Petition in the High Court challenging the Order dated
13.01.2000 by which the power was withdrawn from the Gram
208Panchayats. The Writ Petition was allowed by the High
Court against which State of Uttar Pradesh filed an
appeal. The submission was raised before this Court on
behalf of the writ petitioner that denuding the power
from Panchayats will be against the constitutional
provision of Article 243G. Such argument on behalf of
petitioner has been noticed in Paragraph 14. This Court
after considering the provisions of Article 243G and
other relevant provisions has laid down in Paras 23 and
24:
“23. The High Court has considered the nature
of the aforesaid constitutional provision and
held as under: (Zila Panchayat case1, AWC pp.
398182, para 16)“16. In our opinion, this provision
is only an enabling provision. It
enables the Legislature of a State
to endow the Panchayats with certain
powers. … Hence, the Legislature of
a State is not bound to endow the
Panchayats with the powers referred
to Article 243G, and it is in its
discretion to do so or not. At any
event there is no mention of the
public distribution system in
Article 243G of the Constitution.”Thus, it is evident that the High Court has
taken a view that the provision of Article
243G is merely an enabling provision, and it
209is not a source of legislation. This view
seems to be in consonance with the law laid
down by this Court in U.P. Gram Panchayat
Adhikari Sangh v. Daya Ram Saroj4 wherein an
observation has been made that Article 243G
is an enabling provision as it enables the
Panchayats to function as institutions of
selfgovernment. Further, this Court noted
that such law may contain provisions for the
devolution of powers and responsibilities
upon Panchayats, subject to such conditions
as may be specified therein, with respect to
the implementation of schemes for economic
development and social justice as may be
entrusted to them, including those in
relations to the matters listed in the
Eleventh Schedule. The enabling provisions
are further subject to the conditions as may
be specified. Therefore, it is for the State
Legislature to consider conditions and to
make laws accordingly. It is also open to the
State to eliminate or modify the same.24. Therefore, it is apparent that Article
243G read with the Eleventh Schedule is not
a source of legislative power, and it is only
an enabling provision that empowers a State
to endow functions and devolve powers and
responsibilities to local bodies by enacting
relevant laws. The local bodies can only
implement the schemes entrusted to them by
the State.”231. This Court in the above case has reiterated that
Article 243G read with Eleventh Schedule is not a source
of legislative power, and it is only an enabling
provision that empowers a State to endow functions and
210devolve powers and responsibilities to local bodies by
enacting relevant laws. We, thus, are unable to accept
the submission of Shri Gopal Subramanium that Aadhaar Act
is ultra vires to Article 243G and Eleventh Schedule to
the Constitution.
232. One more submission of the petitioners which needs
to be considered is regarding probabilistic nature of
biometric solution. We proceed on premise that Aadhaar
structure is probabilistic, the petitioners themselves
have referred to UIDAI Report where biometric accuracy
has been stated to be 99.768%. Stephen Hawkin in his
book: “God Created The Integers” states:
“Over the centuries, the efforts of these
mathematicians have helped the human race to
achieve great insight into nature, such as
the realisation that the earth is round, that
the same force that causes an apple to fall
here on earth is also responsible for the
motions of the heavenly bodies, that space is
finite and not eternal, that time and space
are intertwined and warped by matter and
energy, and that the future can only be
determined probabilistically. Such
revolutions in the way we perceive the world
have always gone hand in hand with
revolutions in mathematical thought. Isaac
Newton could never have formulated his laws
without the analytic geometry of Rene
Descartes and Newton’s own invention of
211calculus. It is hard to imagine the
development of either electrodynamics or
quantum theory without the methods of Jean
Baptiste Joseph Fourier or the work on
calculus and the theory of complex functions
pioneered by Carl Friedrich Gauss and
Augustin Louis Cauchy and it was Henri
Lebesgue’s work on the theory of measure that
enabled John von Neumann to formulate the
rigorous understanding of quantum theory that
we have today. Albert Einstein could not have
completed his general theory of relativity
had it not been for the geometric ideas of
Bernhard Riemann. And practically all of
modern science would be far less potent (if
it existed at all) without the concepts of
probability and statistics pioneered by
PierreSimon Laplace.”233. The science and technology keeps on changing with
pace of time. A scientific invention or module which
is invented or launched keeps on improving with time.
The ready example is improvement in quality and
programmes of mobile phone which has seen steep
development in the last one decade. Even if
authentication under Aadhaar scheme is probabilistic
as on date, we have no doubt that the steps will be
taken to minimise the misnatch and to attain more
accuracy in the result. In view of the foregoing
discussion we are of the view that the State has given
212sufficient justification to uphold the
constitutionality of Section 7. We, thus, answer
Question Nos.6 and 7 in the following manner:
Ans.6: Section 7 of the Aadhaar is
constitutional. The provision does not
deserve to be struck down on account of
denial in some cases of right to claim on
account of failure of authentication.
Ans.7: The State while enlivening right to food,
right to shelter etc. envisaged under
Article 21 cannot encroach upon the right
of privacy of beneficiaries nor former
can be given precedence over the latter.
Issue No.8 Whether Section 29 of the Aadhaar Act is
liable to be struck down?234. The ground to challenge Section 29 is that it
permits sharing of identity information. It is
submitted that sharing of identity information is
breach of Right of Privacy. Section 29 is a
213provision, which contains restrictions on sharing
information as is clear from the heading of the
section. Section 29 subsection (1) contains
prohibition on sharing of any core biometric
information collected or created under this Act.
Section 29 for ready reference is extracted as below:
29. Restriction on sharing information. (1)
No core biometric information, collected or
created under this Act, shall be—(a) shared with anyone for any reason
whatsoever; or(b) used for any purpose other than
generation of Aadhaar numbers and
authentication under this Act.(2) The identity information, other than core
biometric information, collected or created
under this Act may be shared only in
accordance with the provisions of this Act
and in such manner as may be specified by
regulations.(3) No identity information available with a
requesting entity shall be—(a) used for any purpose, other than
that specified to the individual at
the time of submitting any identity
information for authentication; or(b) disclosed further, except with
the prior consent of the individual
to whom such information relates.214
(4) No Aadhaar number or core biometric
information collected or created under this
Act in respect of an Aadhaar number holder
shall be published, displayed or posted
publicly, except for the purposes as may be
specified by regulations.235. Subsection (2) permits sharing of identity
information, other than core biometric information,
only in accordance with the provisions of this Act and
in such manner as may be specified by regulations.
Further subsection (3) prohibits requesting entity to
use identity information for any purpose other than
that specified to the individual or to disclose any
information without the consent of individual. Sub
section (4) provides that no Aadhaar number or core
biometric information shall be published, displayed or
posted publicly, except for the purposes as may be
specified by regulations. The attack on Section 29
that it permits sharing of information is thus wholly
misconceived. The objective of the Act is to protect
the information and privacy of an individual and so
the Section is not liable to be struck down on the
specious ground that it permits sharing of the
215information. Further subsection (3) engraft a
provision of sharing identity information by
requesting entity with consent of the individual.
When a person consents about sharing of his identity
information, he cannot complain breach of Privacy
Right. Petitioners take exception of provision of sub
section(2), which permits identity information other
than core biometric information to be shared in
accordance with the provisions of this Act and in such
manner as may be specified by the regulations. When
an Act or Regulation regulates and controls sharing of
the information, the provision is regulatory and has
been engrafted to protect individual's Privacy Right.
The Aadhaar (Sharing of Information) Regulations, 2016
again contains in Chapter II Restrictions on sharing
of identity information. Regulation 3 is restriction
on Authority. Regulation 4 is restriction on
requesting entity. Regulation 5 fixes responsibility
of any agency or entity other than requesting entity
with respect to Aadhaar number. Regulation 6 provides
restriction on sharing, circulating or publishing of
216Aadhaar number.
236. We, thus, conclude that the provision of Section
29 and the Sharing Regulations contains a restriction
and cannot be in any manner be held to violate any of
the constitutional rights of a person. Objective of
the Act is to put restrictions on the sharing
information, which also is a legitimate State aim.
The provision under Section 29 which permits sharing
of identity information except core biometric
information in accordance with the Act and Regulations
cannot be said to be disproportionate nor
unreasonable. Legislature can very well enumerates
circumstances and conditions where sharing of
information becomes necessary. One of the
circumstances where sharing of the information is
specifically engrafted in subsection(2) of Section
33, which provides that nothing contained in sub
section (3) of Section 29 shall apply in respect of
any disclosure of information, including identity
information or authentication records, made in the
interest of national security in pursuance of a
217direction of an officer not below the rank of Joint
Secretary to the Government of India. Thus, the
circumstances which can contemplate for sharing
information is reasonable and proportionate. We,
thus, held that provisions of Section 29 is
constitutional and does not deserves to be struck
down. Issue No. 8 is answered in the following
manner:
Ans.8: Provisions of Section 29 is constitutional
and does not deserves to be struck down.
Issue No.9 Whether Section 33 is Constitutional ?
237. Section 33 of the Aadhaar Act, 2016 is as
follows:“33. Disclosure of information in certain
cases.(1) Nothing contained in subsection
(2) or subsection (5) of section 28 or sub
section (2) of section 29 shall apply in
respect of any disclosure of information,
including identity information or
authentication records, made pursuant to an
order of a court not inferior to that of a
District Judge:Provided that no order by the court under
this subsection shall be made without giving
an opportunity of hearing to the Authority.218
(2) Nothing contained in subsection (2) or
subsection (5) of section 28 and clause (b)
of subsection (1), subsection (2) or sub
section (3) of section 29 shall apply in
respect of any disclosure of information,
including identity information records, made
in the interest of national security in
pursuance of a direction of an officer not
below the rank of Joint Secretary to the
Government of India specially authorised in
this behalf by an order of the Central
Government:Provided that every direction issued
under this subsection, shall be reviewed by
an Oversight Committee consisting of the
Cabinet Secretary and the Secretaries to the
Government of India in the Department of
Legal Affairs and the Department of
Electronics and Information Technology,
before it takes effect:Provided further that any direction
issued under this subsection shall be valid
for a period of three months from the date of
its issue, which may be extended for a
further period of three months after the
review by the Oversight Committee.”238. The first limb of argument of the petitioner is
that Section 33 is unconstitutional since it provides
for the use of the Aadhaar data base for Police
verification which violates the protection against
selfincrimination as enshrined under Article 20(3) of
the Constitution of India.
219
239. Subsection (1) of Section 33 contains an ample
restriction in respect of any disclosure information
which can be done only in pursuance of an order of the
court not inferior to that of a District Judge. The
restriction in disclosure of information is reasonable
and has valid justification. The authority whose duty
is to safeguard the entire data has to be heard before
passing an order by the court which amply protects the
interest of a person whose data is to be disclosed. An
order of the court not inferior to that of a District
Judge for disclosure of information itself is an ample
protection to that, for no unreasonable purpose data
shall be disclosed. Attacking on subsection (2) of
Section 33, it is contended that although
(i)disclosure of information has been permitted in the
interest of the national security but there is no
definition of national security, (ii) there is no
independent oversight disclosure of such data on the
ground of security, (iii)the provision is neither fair
nor reasonable. Section (2) of Section 33 is
disproportionate and unconstitutional.
220
240. Section 33 subsection (2) contains two
safeguards. Firstly, disclosure of information is to
be made in the interest of national security and
secondly, in pursuance of a direction of an officer
not below the rank of Joint Secretary to the
Government, who is specially authorised in this behalf
by an order of the Central Government. National
security, thus, has to be determined by a higher
officer who is specifically authorised in this behalf.
This Court in Ex. Armymen's Protection Services P.
Ltd. Vs. Union of India (UOI) and Ors., 2014 (5) SCC
409, has held that what is in the interest of national
security is not a question of law but that it is
matter of a policy. Following was held in paragraphs
16 and 17:
“16. What is in the interest of national
security is not a question of law. It is a
matter of policy. It is not for the court to
decide whether something is in the interest
of State or not. It should be left to the
Executive. To quote Lord Hoffman in Secretary
of State for the Home Department v. Rehman
(2003) 1 AC 153:...in the matter of national
security is not a question of law. It is a
matter of judgment and policy. Under the
Constitution of the United Kingdom and most
other countries, decisions as to whether
221something is or is not in the interest of
national security are not a matter for
judicial decision. They are entrusted to the
executive.17. Thus, in a situation of national
security, a party cannot insist for the
strict observance of the principles of
natural justice. In such cases it is the duty
of the Court to read into and provide for
statutory exclusion, if not expressly
provided in the rules governing the field.
Depending on the facts of the particular
case, it will however be open to the court to
satisfy itself whether there were justifiable
facts, and in that regard, the court is
entitled to call for the files and see
whether it is a case where the interest of
national security is involved. Once the State
is of the stand that the issue involves
national security, the court shall not
disclose the reasons to the affected party.”241. The International Courts have also dealt the
issue. In a case, namely, Census Act(BverfGE 65, 1),
judgment of Federal Constitution Court of Germany,
judgment dated 11.10.2013, the Court had occasion to
consider the case in the context of data processing
and protection of individual information against self
incrimination and use of their personal data. Dealing
with right of information and selfdetermination the
Court held that individuals have no right in the sense
of absolute, unrestricted control over their data.
222Following was held by the Court:
“The guarantee of this right to informational
selfdetermination” is not entirely
unrestricted. Individuals have no right in
the sense of absolute, unrestricted control
over their data; they are after all human
persons who develop within the social
Community and are dependent upon
communication. Information, even if related
to individual persons, represents a
reflection of societal reality that cannot be
exclusively assigned solely to the parties
affected. The Basic Law, as has been
emphasized several times in the case law of
the Federal Constitutional Court, embodies in
negotiating the tension between the
individual and the Community a decision in
favour of civic participation and civic
responsibility(see BverfGE 4, 7 [15] ; 8, 274
[329]; 27, 344 [351 and 352]; 33, 303 [334];
50, 290 [353]; 56, 37 [49]).Individuals must therefore in principle
accept restriction on their right to
informational selfdetermination in the
overriding general public interest.”242. Another judgment of European Commission of Human
Rights in M.S. against Sweden was a case that
applicant has complained that copies of her medical
records containing information on treatment have been
forwarded by the clinic without her information to the
Insurance Co. The case of the applicant was noticed in
paragraph 39 which is to the following effect:
223“39. The applicant submits that the women’s
clinic’s submission of copies of her medical
records to the Social Insurance Office
without her knowledge or consent interfered
with her right to respect for her private
life. She maintains that the information
contained in these records were of a highly
sensitive and private nature. Allegedly, she
could not anticipate, when she claimed
compensation from the Office, that
information on the abortion performed several
years after alleged back injury would be
forwarded to the Office. She further refers
to the fact that the information in question
is not protected by the same level of
confidentiality at the Office as at the
clinic.”243. The Commission held that information was rightly
submitted to the Insurance Co. in accordance with law.
It is also relevant to refer the judgment of this
Court in People’s Union for Civil Liberties(PUCL) v.
Union of India, 1997 (1) SCC 301, where the writ
petition was filed under Article 32 alleging serious
invasion of an individual’s privacy on the account of
Telephonetapping. The Court adverted to the Indian
Telegraph Act, 1885 and the Rules framed thereunder.
The Court has noticed that Section 5(2) of the
Telegraph Act permits the interception of messages in
accordance with the said section, “Occurrence of any
224public emergency” or “in the interest of public
safety”. In paragraph 28 following was held:
“28. Section 5(2) of the Act permits the
interception of messages in accordance with
the provisions of the said Section."Occurrence of any public emergency" or "in
the interest of public safety" are the sine
qua non. for the application of the
provisions of Section 5(2) of the Apt. Unless
a public emergency has occurred or the
interest of public safety demands, the
authorities have no jurisdiction to exercise
the powers under the said Section. Public
emergency would mean the prevailing of a
sudden condition or state of affairs
affecting the people at large calling for
immediate action.”244. This Court issued various directions providing
for certain safeguards regarding an order for
Telephone tapping. Thus, on fulfillment of statutory
conditions when telephonic conversation can be
intercepted no exception can be taken for disclosure
of information in the interest of national security.
245. The power given under Section 33 to disclose
information cannot be said to be disproportionate. The
disclosure of information in the circumstances
225mentioned in Section 33 is reasonable and in the
public interest.
246. We are satisfied that the provision fulfills
three fold test as laid down in Puttaswamy case. There
are no grounds to declare Section 33 as
unconstitutional.
247. We also need to advert to one of the submissions
of the petitioner that permitting disclosure of
information for police investigation violates the
protection against selfincrimination as provided
under Article 20 subclause (3). It is true that under
Section 33 the Court may order for disclosure of
information even for a police investigation. But
information so received in no manner can be said to
violate the protection given under Article 20 sub
clause (3). The basic information which are with the
UIDAI are demographic and biometric information. In
this context, reference is made to 11Judge
Constitution Bench judgment of this Court in State of
Bombay vs. Kathi KALU Oghad, AIR 1961 SC 1808. The
226Constitution Bench had occasion to consider subclause
(3) of Article 20 of the Constitution. In the above
case from the accused who was charged under Section
302/34 IPC during the investigation prosecution has
obtained three specimen of handwriting which were
compared by his handwriting which was part of the
evidence. A question was raised as to the
admissibility of the specimen of handwriting, it was
contended that use of specimen of handwriting
violated protection under Article 20(3). This Court in
paragraph 16 laid down following:
(16) In view of these considerations, we
have come to the following conclusions :
(1) An accused person cannot be said
to have been compelled to be a
witness against himself simply
because he made a statement while in
police custody, without anything
more. In other words, the mere fact
of being in police custody at the
time when the statement in question
was made would not, by itself, as a
proposition of law, lend itself to
the inference that the accused was
compelled to make the statement,
though that fact, in conjunction with
other circumstances disclosed in
evidence in a particular case, would
be a relevant consideration in an
enquiry whether or not the accused
227person had been compelled to make the
impugned statement.(2) The mere questioning of an
accused person by a police officer,
resulting in a voluntary statement,
which may ultimately turn out to be
incriminatory, is not 'compulsion'.(3) 'To be a witness' is not
equivalent to 'furnishing evidence'
in its widest significance; that is
to say, as including not merely
making of oral or written Dagduas but
also production of documents or
giving materials which may be
relevant at a trial to determine the
guilt innocence of the accused.(4) Giving thumb impressions or
impressions of foot or palm or
fingers or specimen writings or
showing parts of the body by way of
identification are not included in
the expression 'to be a witness'.(5) 'To be a witness' means imparting
knowledge in respect of relevant
facts by an oral statement or a
statement in writing, made or given
in Court or otherwise.(6) 'To be a witness' in its ordinary
grammatical sense means giving oral
testimony in Court. Case law has gone
beyond this strict literal
interpretation of the expression
which may now bear a wider meaning,
namely, bearing testimony in Court or
out of Court by a person accused of
an offence, orally or in writing.(7) To bring the statement in
question within the prohibition of
228Article 20(3), the person accused
must have stood in the character of
an accused person at the time he made
the statement. It is not enough that
he should become an accused, any time
after the statement has been made.”248. From what has been held in the above case, it is
clear that ‘to be a witness' is not equivalent to
'furnishing evidence' in its widest significance. The
use of information retained by the UIDAI given by the
order of the Court under Section 33 cannot be said to
be violating the protection as contained under Article
20(3). Thus, Article 20(3) is not violated by
disclosure of information under Section 33. In view of
the foregoing discussion, we hold that Section 33 is
constitutional.
249. One of the decisions on which Shri K.V.
Viswanathan has placed reliance in support of his
submission regarding violation of Article 20(3) as
well as Article 21 of the Constitution is Selvi and
others vs. State of Karnataka, 2010(7) SCC 263. In the
above case this Court had considered as to whether
certain scientific techniques, namely, narcoanalysis,
229polygraph examination and the Brain Electrical
Activation Profile (BEAP)test for the purpose of
improving investigation efforts in criminal cases
violate subclause (3) of Article 20 as well as
Article 21. The legal issues and questions of law have
been noted in paragraphs 2 and 11 to the following
effect:
“2. The legal questions in this batch of
criminal appeals relate to the involuntary
administration of certain scientific
techniques, namely narcoanalysis, polygraph
examination and the Brain Electrical
Activation Profile (BEAP) test for the
purpose of improving investigation efforts in
criminal cases. This issue has received
considerable attention since it involves
tensions between the desirability of
efficient investigation and the preservation
of individual liberties. Ordinarily the
judicial task is that of evaluating the rival
contentions in order to arrive at a sound
conclusion. However, the present case is not
an ordinary dispute between private parties.
It raises pertinent questions about the
meaning and scope of fundamental rights which
are available to all citizens. Therefore, we
must examine the implications of permitting
the use of the impugned techniques in a
variety of settings.11. At this stage, it will be useful to
frame the questions of law and outline the
relevant subquestions in the following
manner:230
I.Whether the involuntary
administration of the impugned
techniques violates the `right
against selfincrimination'
enumerated in Article 20(3) of the
Constitution?IA. Whether the investigative
use of the impugned techniques
creates a likelihood of
incrimination for the subject?IB. Whether the results
derived from the impugned techniques
amount to `testimonial compulsion'
thereby attracting the bar of
Article 20(3)?II.Whether the involuntary
administration of the impugned
techniques is a reasonable
restriction on `personal liberty' as
understood in the context of Article
21 of the Constitution? ”250. After considering large number of cases of this
Court as well as judgments rendered by Foreign Courts,
a conclusion was recorded that those tests, since they
are a means for imparting personal knowledge about
relevant facts, hence, they come within the scope of
testimonial compulsion thereby attracting the
protective shield of Article 20(3). In paragraph 189
following was held:
“189. In light of the preceding
231discussion, we are of the view that the
results obtained from tests such as polygraph
examination and the BEAP test should also be
treated as `personal testimony', since they
are a means for `imparting personal knowledge
about relevant facts'. Hence, our conclusion
is that the results obtained through the
involuntary administration of either of the
impugned tests (i.e. the narcoanalysis
technique, polygraph examination and the BEAP
test) come within the scope of `testimonial
compulsion', thereby attracting the
protective shield of Article 20(3). ”251. In so far as question of violation of Article 21
is concerned, this Court, in paragraphs 225 and 226
has held:
“225. So far, the judicial understanding
of privacy in our country has mostly stressed
on the protection of the body and physical
spaces from intrusive actions by the State.
While the scheme of criminal procedure as
well as evidence law mandates interference
with physical privacy through statutory
provisions that enable arrest, detention,
search and seizure among others, the same
cannot be the basis for compelling a person
`to impart personal knowledge about a
relevant fact'. The theory of
interrelationship of rights mandates that the
right against selfincrimination should also
be read as a component of `personal liberty'
under Article 21. Hence, our understanding of
the `right to privacy' should account for its
intersection with Article 20(3). Furthermore,
the `rule against involuntary confessions' as
embodied in Sections 24, 25, 26 and 27 of the
Evidence Act, 1872 seeks to serve both the
232objectives of reliability as well as
voluntariness of testimony given in a
custodial setting. A conjunctive reading of
Articles 20(3) and 21 of the Constitution
along with the principles of evidence law
leads us to a clear answer. We must recognise
the importance of personal autonomy in
aspects such as the choice between remaining
silent and speaking. An individual's decision
to make a statement is the product of a
private choice and there should be no scope
for any other individual to interfere with
such autonomy, especially in circumstances
where the person faces exposure to criminal
charges or penalties.226. Therefore, it is our considered
opinion that subjecting a person to the
impugned techniques in an involuntary manner
violates the prescribed boundaries of
privacy. Forcible interference with a
person's mental processes is not provided for
under any statute and it most certainly comes
into conflict with the `right against self
incrimination'. However, this determination
does not account for circumstances where a
person could be subjected to any of the
impugned tests but not exposed to criminal
charges and the possibility of conviction. In
such cases, he/she could still face adverse
consequences such as custodial abuse,
surveillance, undue harassment and social
stigma among others. In order to address such
circumstances, it is important to examine
some other dimensions of Article 21. ”252. The nature of tests which were under consideration
in the aforesaid case, were elaborately noticed by
this Court and the tests were found to be in nature of
233substantial intrusion in the body and mind of an
individual, hence, it was held that they violate
Article 20(3) as well as Article 21. It is, however,
relevant to notice that this Court in Selvi judgment
itself has noticed the distinction in so far as use of
fingerprints were concerned. This Court had noticed
earlier judgment of State of Bombay v. Kathi Kalu
Oghad, AIR 1961 SC 1808 with approval. The biometric
information that is fingerprints and iris scan can not
be equated to the tests which came for consideration
in Selvi's case. Hence, the judgment of this Court in
Selvi does not in any manner support the case of the
petitioners. Answer to question No.3 is in following
Manner:
Ans.9: Section 33 cannot be said to be
unconstitutional as it provides for the
use of Aadhaar data base for police
investigation nor it can be said to
violate protection granted under Article
20(3).
234
Issue No.10 Whether Section 47 of the Aadhaar Act is
Unconstitutional?253. The Petitioner submits that Section 47 of the
Aadhaar Act is unconstitutional since it does not
allow an individual who is victim of violation of
Aadhaar Act to initiate a criminal process. It is
submitted that the person who is victim of an offence
under the Aadhaar Act has no remedy to file a
complaint and Section 47 of the Act restrict the
filing of complaint only by Authorities or Officers or
persons authorised by it.
254. The above submission is refuted by the respondent
that Section 47 has a rationale. The offences and
penalties under Chapter VII of the Aadhaar Act are all
intended to maintain the purity and integrity of CIDR
and the entire enrolment storage in CIDR and
authentication exercise can only be efficiently and
effectively handled by UIDAI. Thus, jurisdiction to
submit a complaint has been conferred to UIDAI which
is the most entrusted entity for maintaining the
235purity of Aadhaar Scheme and is also affected by
offences committed under the Aadhaar Act. Section 47
provides as follows:
“47. Cognizance of Offence (1) No court
shall take cognizance of any offence
punishable under this Act, save on a
complaint made by the Authority or any
officer or person authorised by it.
(2) No court inferior to that of a Chief
Metropolitan Magistrate or a Chief Judicial
Magistrate shall try any offence punishable
under this Act.”255. Provisions akin to Section 47 are found in most
of Statutes which Statutes defines offences under the
Statute and provide penalty and punishment thereunder.
Following are some of the Statues which contains a
provision akin to Section 47 of Aadhaar Act:
“1)Section 22 of Mines and
Minerals(Development Regulation) Act, 1957
– No Court shall take cognizance of any
offence punishable under this Act or any
rules made thereunder except upon complaint
in writing made by a person authorised in
this behalf by the Central Government or the
State Government.2) Section 34 of the Bureau of Indian
Standards Act, 1986 No Court shall take
cognizance of an offence punishable under
this Act, save on a complaint made by or
under the authority of the Government or
236Bureau or by any officer empowered in this
behalf by the Government or the Bureau, or
any consumer or any association recognized in
this behalf by the Central or State
Government.3) Section 26(1) of SEBI Act, 1992 – No Court
shall take cognizance of any offence
punishable under this Act or any rules or
regulations made thereunder, save on a
complaint made by the Board.4) Section 34 of Telecom Regulatory Authority
of India Act, 1997 – No Court shall take
cognizance of any offence punishable under
this Act or the rules or regulations made
thereunder, save on a complaint made by the
Authority.5) Section 57(1) of Petroleum and Natural gas
Regulatory Board Act, 2007 – No Court shall
take cognizance of any offence punishable
under Chapter IX save on a complaint made by
the Board or by any investigating agency
directed by the Central Government.6) Section 47 of Banking Regulation Act, 1949
– No court shall take a cognizance of any
offence punishable under subsection (5) of
Section 36AA or Section 46 except upon
complaint in writing made by an officer of
the Reserve Bank or, as the case may be, the
National Bank generally or specially
authorised in writing in this behalf by the
Reserve Bank, or as the case may be, the
National Bank and no court other than that of
a Metropolitan Magistrate or a Judicial
Magistrate of the first class or any court
superior thereto shall try any such offence.7) Section 19 of Environment (Protection)
Act, 1986 – No court shall take cognizance of
237any offence under this Act except on a
complaint made by – (a) the Central
Government or any authority or officer
authorised in this behalf by that Government,
or (b) any person who has given notice of not
less than sixty days, in the manner
prescribed, of the alleged offence and of his
intention to make a complaint, to the Central
Government or the authority or officer
authorised as aforesaid.8) Section 43 of The Air (Prevention and
Control of Pollution) Act, 1981 – (1) No
Court shall take cognizance of any offence
under this Act except on a complaint made by
– (a) a Board or any officer authorised in
this behalf by it; or (b) any person who has
given notice of not less than sixty days, in
the manner prescribed, of the alleged offence
and of his intention to make a complaint to
the Board or officer authorised as aforesaid,
and no court inferior to that of a
Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any
offence punishable under this Act.”256. Large number of Special Acts which defines
offences under the Act and their penalty contains
provision akin to Section 34 of the Aadhaar Act.
Special Acts are enacted for serving special objects
towards offences under the Act. The initiation and
prosecution of offences under the Special Act are kept
by the specified authority to keep the initiation and
prosecution in the hands of the authorities under the
238Special Act which acts as deterrent and prosecutions
are brought to its logical end. Further, objective of
such provisions is to discourage frivolous and
vexatious complaints.
257. This Court in Rajkumar Gupta versus Lt.Governor,
Delhi and Others, (1997) 1 SCC 556, had occasion to
consider Section 34(1) of the Industrial Disputes Act,
1947 and objective behind putting such restriction.
Section 34 of Industrial Disputes Act provided that no
Court shall take cognizance of any offence punishable
under this Act or of the abetment of any such offence,
save on complaint made by or under the authority of
the appropriate Government. Section 34 of Industrial
Disputes Act is pari materia with Section 47 of the
Aadhaar Act. This Court noticing the objective of
Section 34 laid down following in the paragraph 16.
The Court held that Section 34 is in the nature of
limitation on the entitlement of workman or trade
union or an employer to complain of offences under the
Act. Following was laid down in paragraph 16:
“ 16. At the same time, the provisions of
239Section 34 are in the nature of a limitation
on the entitlement of a workman or a trade
union or an employer to complain of offences
under the said Act. They should not, in the
public interest, be permitted to make
frivolous, vexatious or otherwise patently
untenable complaints, and to this end Section
34 requires that no complaint shall be taken
cognizance of unless it is made with the
authorization of the appropriate Government.”258. In so far as the submission that there is no
forum for a person victim of an offence under Aadhaar
Act, suffice to say that Section 47 can be invoked by
the authority on its own motion or when it receives a
complaint from a victim. The authority i.e. UIDAI has
varied powers and functions as enumerated in Section
23 of the Act. It is the authority who is most
entrusted in ensuring that the provisions of the Act
are implemented in accordance with the Act and
offenders should be punished. In so far as remedy of
victim is concerned, there are few facts which need to
be kept in mind.
259. The Information Technology Act, 2000 defines
electronic record in Section 2(t) which is to the
following effect:
240“Section 2(t) “electronic record” means
data, record or data generated, image or
sound stored, received or sent in an
electronic form or micro film or computer
generated micro fiche;”260. The demographic and biometric information which
is collected for enrolment of the resident in
electronic data as defined in Section 2(t) of
Information Technology Act and expressly stated in
Section 30 of Aadhaar Act. Chapter 11 of the
Information Technology Act defines offences. Section
66C, Section 66D and Section 72 of the Information
Technology Act defines offences and provides for
penalty, which is to the following effect:
“66C. Punishment for identity theft Whoever,
fraudulently or dishonestly make use of the
electronic signature, password or any other
unique identification feature of any other
person, shall be punished with imprisonment
of either description for a term which may
extend to three years and shall also be
liable to fine which may extend to rupees one
lakh.66D. Punishment for cheating by personation
by using computer resource Whoever, by means
for any communication device or computer
resource cheats by personating, shall be
punished with imprisonment of either
description for a term which may extend to
three years and shall also be liable to fine
241which may extend to one lakh rupees.
72. Penalty for breach of confidentiality and
privacy – Save as otherwise provided in this
Act or any other law for the time being in
force, if any person who, in pursuance of any
of the powers conferred under this Act, rules
or regulations made thereunder, has secured
access to any electronic record, book,
register, correspondence, information,
document or other material without the
consent of the person concerned discloses
such electronic record, book, register,
correspondence, information, document or
other material to any other person shall be
punished with imprisonment for a term which
may extend to two years, or with fine which
may extend to one lakh rupees, or with both.”261. With regard to an offence which falls within the
definition of 'offences' a victim can always file
complaint or lodge an F.I.R.. Section 46 of the
Aadhaar Act clearly provides that the penalties under
the Aadhaar Act shall not interfere with other
punishments. Section 46 is as follows:
“46. Penalties not to interfere with other
punishments. No penalty imposed under this
Act shall prevent the imposition of any other
penalty or punishment under any other law for
the time being in force.”262. This Court in State (NCT of Delhi) versus
Sanjay, (2014) 9 SCC 772, had occasion to consider the
242provisions of Section 22 of the Mines and Minerals
(Development Regulations) Act, 1957 which provision
is similar to Section 47 of the Aadhaar Act. The
question arose that whether in case the complaint has
not been filed by the authority under Section 22,
whether cognizance can be taken of the offence if it
falls within definition of any of the offences under
the Indian Penal Code. There was divergence of
opinions between the different High Courts. This Court
after noticing earlier judgments of this Court, laid
down following in paragraphs 17 and 73.
“17. Since conflicting views have been taken
by the Gujarat High Court, the Delhi High
Court, the Kerala High Court, the Calcutta
High Court, the Madras High Court and the
Jharkhand High Court, and they are in
different tones, it is necessary to settle
the question involved in these appeals.73. After giving our thoughtful consideration
in the matter, in the light of relevant
provisions of the Act visàvis the Code of
Criminal Procedure and the Penal Code, we are
of the definite opinion that the ingredients
constituting the offence under the MMDR Act
and the ingredients of dishonestly removing
sand and gravel from the riverbeds without
consent, which is the property of the State,
is a distinct offence under IPC. Hence, for
the commission of offence Under Section 378
IPC, on receipt of the police report, the
243Magistrate having jurisdiction can take
cognizance of the said offence without
awaiting the receipt of complaint that may be
filed by the authorized officer for taking
cognizance in respect of violation of various
provisions of the MMDR Act. Consequently the
contrary view taken by the different High
Courts cannot be sustained in law and,
therefore, overruled. Consequently, these
criminal appeals are disposed of with a
direction to the Magistrates concerned to
proceed accordingly. ”263. The limitation as contained in Section 47 in
permitting taking cognizance of any offence punishable
under Aadhaar Act only on a complaint made by the
authority or any officer or person authorised by it,
has legislative purpose and objective, as noticed
above. We thus do not find any unconstitutionality in
Section 47 of the Aadhaar Act. In view of the
foregoing discussions, the answer to Issue No.10 is in
following manner:
Ans.10: Section 47 of the Aadhaar Act cannot be held
to be unconstitutional on the ground that
it does not allow an individual who finds
that there is a violation of Aadhaar Act to
initiate any criminal process.
244Issue No. 11 Whether Section 57 of Aadhaar Act is
unconstitutional?264. Section 57 of the Act, which contains a heading
“Act not to prevent use of Aadhaar Number for other
purposes under law” provides:
“57. Act to prevent use of Aadhaar number for
other purposes under law. Nothing contained
in this Act shall prevent the use of Aadhaar
number for establishing the identity of an
individual for any purpose, whether by the
State or any body corporate or person,
pursuant to any law, for the time being in
force, or any contract to this effect:Provided that the use of Aadhaar number
under this section shall be subject to the
procedure and obligations under section 8 and
Chapter VI.”265. Attacking the provision of Section 57, petitioners
contends that broad and unlimited scope of activities
covered under Section 57 and kinds of private entities
permitted to use Aadhaar is entirely disproportionate
beyond the means and objectives of the Act and without
any compelling State interests. There are no
procedural safeguards governing the actions of private
entities and no remedy for undertaking's failure or
service denial. The individual, who wish to be
245enrolled have given their consent only for Aadhaar
subsidies, benefits and services, which cannot be
assumed for other purposes. Section 57 has to be
struck down on the ground of excessive delegation.
“Any purpose” indicates absence of guidelines. Any
purpose does not mean all purposes and several aspects
of human existence. Section 57 violates all principles
of proportionality.
266. Refuting the above submission of the petitioners,
the respondents submits that, Section 57 is not an
enabling provision, it merely provides as it states
that the provisions of the Act would not prevent the
use of Aadhaar for other purposes. In fact, Section
57 employs limitation on such user for other purposes,
which is engrafted in Proviso to Section 59. The use
of Aadhaar having been made subject to procedure and
obligations under Section 8 and Chapter VI, the
contract must provide for authentication under Section
8 and protection and formulation under Chapter VI also
obviously entail the operation of Chapter VII
(Offences and Penalties). Section 57 does not have
246any relation to other laws, which may be made by
Parliament, the other laws made by Parliament would
have to be tested on their own merits. Section 57 is
not a provision enabling the making of a law or
rather it is actually a limitation or restriction to
law, which may be made with respect to use of Aadhaar
number. The apprehension expressed by the petitioners
is about the wide extension of use of Aadhaar in
private spheres is completely misplaced.
267. One of the grounds of attack of the petitioners
to Section 57 is that it is disproportionate and does
not satisfy the proportionality test as laid down in
Privacy Judgment – Puttaswamy case. Before proceeding
further, it becomes necessary to look into the
proportionality test, its content and parameters.
268. Patanjali Shastri, Chief Justice, as he then was
speaking for a Constitution Bench in State of Madras
Vs. V.G. Row, AIR 1952 SC 196, while elaborating the
expression reasonable restrictions on the exercise of
right as occurring in Clause (5) of Article 19 of the
247Constitution laid down that reasonable restriction
should not be disproportionate. Following was observed
in Paragraph 15:
“15........It is important in this context to
bear in mind that the test of reasonableness,
wherever prescribed, should be applied to
each individual statute impugned, and no
abstract standard or general pattern, of
reasonableness can be laid down as applicable
to all cases. The nature of the right alleged
to have been infringed, the underlying
purpose of the restrictions imposed, the
extent and urgency of the evil sought to be
remedied thereby, the disproportion of the
imposition, the prevailing conditions at the
time, should all enter into the judicial
verdict. In evaluating such elusive factors
and forming their own conception of what is
reasonable, in all the circumstances of a
given case, it is inevitable that the social
philosophy and the scale of values of the
Judges participating in the decision should
play an important part, and the limit to
their interference with legislative judgment
in such cases can only be dictated by their
sense of responsibility and selfrestraint
and the sobering reflection that the
Constitution is meant not only for people of
their way of thinking but for all, and that
the majority of the elected representatives
of the people have, in authorising the
imposition of the restrictions, considered
them to be reasonable.”269. A Two Judge Bench of this Court in Om Kumar and
Others Vs. Union of India, (2001) 2 SCC 386
248elaborately considered the concept of proportionality
in reference to legislative action. This Court held
that ever since the principle of proportionality as
noted above applied in India, Jagannadha Rao, J. had
referred to judgments of Canadian Supreme Court in R
v. Oakes (1986) 26 DLR 2001 and has noticed the three
important components of the proportionality test.
First, the measures adopted must be carefully designed
to achieve the objective in question. They must not be
arbitrary, unfair or based on irrational
considerations. In short, they must be rationally
connected to the objective. Secondly, the means, must
not only be rationally connected to the objective in
the first sense, but should impair as little as
possible the right to freedom in question. Thirdly,
there must be 'proportionality' between the effects of
the measures and the objective.
270. Again, in Teri Oat Estates (P) Ltd. Vs. U.T.
Chandigarh and Others, (2004) 2 SCC 130, Sinha, J. had
elaborately reviewed the principle of proportionality.
In Paragraph 46, following has been held:
249“46. By proportionality, it is meant that the
question whether while regulating exercise of
fundamental rights, the appropriate or least
restrictive choice of measures has been made
by the legislature or the administrator so as
to achieve the object of the legislation or
the purpose of the administrative order, as
the case may be. Under the principle, the
court will see that the legislature and the
administrative authority
“maintain a proper balance between
the adverse effects which the
legislation or the administrative
order may have on the rights,
liberties or interests of persons
keeping in mind the purpose which
they were intended to serve”.271. The most elaborate consideration of the Doctrine
of Proportionality was made in Modern Dental College
and Research Centre and Others Vs. State of Madhya
Pradesh and Others, (2016) 7 SCC 353. The validity of
legislation passed by State of Madhya Pradesh
Legislature came for consideration. The Court
(speaking through Dr. Justice A.K. Sikri, one of us)
held that exercise that is required to be undertaken
is the balancing of fundamental right and
restrictions imposed, which is known as Doctrine of
Proportionality. In Paragraph 60, following has been
250stated:
“60. …......... Thus, while examining as to
whether the impugned provisions of the
statute and rules amount to reasonable
restrictions and are brought out in the
interest of the general public, the exercise
that is required to be undertaken is the
balancing of fundamental right to carry on
occupation on the one hand and the
restrictions imposed on the other hand. This
is what is known as “doctrine of
proportionality”. Jurisprudentially,
“proportionality” can be defined as the set
of rules determining the necessary and
sufficient conditions for limitation of a
constitutionally protected right by a law to
be constitutionally permissible. According to
Aharon Barak (former Chief Justice, Supreme
Court of Israel), there are four sub
components of proportionality which need to
be satisfied, a limitation of a
constitutional right will be constitutionally
permissible if:(i) it is designated for a proper
purpose;(ii) the measures undertaken to
effectuate such a limitation are
rationally connected to the
fulfilment of that purpose;(iii) the measures undertaken are
necessary in that there are no
alternative measures that may
similarly achieve that same purpose
with a lesser degree of limitation;and finally
(iv) there needs to be a proper
relation (“proportionality stricto
251sensu” or “balancing”) between the
importance of achieving the proper
purpose and the social importance of
preventing the limitation on the
constitutional right.”272. Elaborating the constitutional principles, it was
laid down that the Constitution permit constitutional
rights to be limited to protect public interests or
the rights of others. The conflict between two
fundamental aspects, i.e. rights on the one hand and
its limitation on the other hand is to be resolved
by balancing the two so that they harmoniously co
exist with each other. This balancing is to be done
keeping in mind the relative social values of each
competitive aspects when considered in proper context.
What criteria is to be adopted in for a proper
balancing has been explained in Paragraphs 63 and 64:
“63. In this direction, the next question
that arises is as to what criteria is to be
adopted for a proper balance between the two
facets viz. the rights and limitations
imposed upon it by a statute. Here comes the
concept of “proportionality”, which is a
proper criterion. To put it pithily, when a
law limits a constitutional right, such a
limitation is constitutional if it is
proportional. The law imposing restrictions
will be treated as proportional if it is
252meant to achieve a proper purpose, and if the
measures taken to achieve such a purpose are
rationally connected to the purpose, and such
measures are necessary. This essence of
doctrine of proportionality is beautifully
captured by Dickson, C.J. of Canada in R. v.Oakees, (1986) 1 SCR 103 (Can SC), in the
following words (at p. 138):“To establish that a limit is
reasonable and demonstrably justified
in a free and democratic society, two
central criteria must be satisfied.First, the objective, which the
measures, responsible for a limit on
a Charter right or freedom are
designed to serve, must be “of”
sufficient importance to warrant
overriding a constitutional protected
right or freedom … Second … the party
invoking Section 1 must show that the
means chosen are reasonable and
demonstrably justified. This involves
“a form of proportionality test…”
Although the nature of the
proportionality test will vary
depending on the circumstances, in
each case courts will be required to
balance the interests of society with
those of individuals and groups.There are, in my view, three
important components of a
proportionality test. First, the
measures adopted must be … rationally
connected to the objective. Second,
the means … should impair “as little
as possible” the right or freedom in
question … Third, there must be a
proportionality between the effects
of the measures which are responsible
for limiting the Charter right or
freedom, and the objective which has
253been identified as of “sufficient
importance”. The more severe the
deleterious effects of a measure, the
more important the objective must be
if the measure is to be reasonable
and demonstrably justified in a free
and democratic society.”64. The exercise which, therefore, is to be
taken is to find out as to whether the
limitation of constitutional rights is for a
purpose that is reasonable and necessary in a
democratic society and such an exercise
involves the weighing up of competitive
values, and ultimately an assessment based on
proportionality i.e. balancing of different
interests.”273. The application of Doctrine of Proportionality,
while examining validity of the Statute has been
accepted in other countries as well. Judgments of the
U.S. Supreme Court as well as of United Kingdom,
Canadian Supreme Court and Australian Court shows that
they have applied proportionality principle while
judging a Statute. European Court of Human Rights and
other international bodies have recognised the said
principle. Privacy judgment in Puttaswamy case has
also accepted the proportionality doctrine for judging
validity of a Statute. In the threefold test evolved
in Privacy Judgment, proportionality is the third
254component. Dr. D.Y. Chandrachud, J. in Paragraph 310
has stated following in respect of proportionality:
“310. While it intervenes to protect
legitimate State interests, the State must
nevertheless put into place a robust regime
that ensures the fulfilment of a threefold
requirement. These three requirements apply
to all restraints on privacy (not just
informational privacy). They emanate from the
procedural and contentbased mandate of
Article 21. The first requirement that there
must be a law in existence to justify an
encroachment on privacy is an express
requirement of Article 21. For, no person can
be deprived of his life or personal liberty
except in accordance with the procedure
established by law. The existence of law is
an essential requirement. Second, the
requirement of a need, in terms of a
legitimate State aim, ensures that the nature
and content of the law which imposes the
restriction falls within the zone of
reasonableness mandated by Article 14, which
is a guarantee against arbitrary State
action. The pursuit of a legitimate State aim
ensures that the law does not suffer from
manifest arbitrariness. Legitimacy, as a
postulate, involves a value judgment.Judicial review does not reappreciate or
second guess the value judgment of the
legislature but is for deciding whether the
aim which is sought to be pursued suffers
from palpable or manifest arbitrariness. The
third requirement ensures that the means
which are adopted by the legislature are
proportional to the object and needs sought
to be fulfilled by the law. Proportionality
is an essential facet of the guarantee
against arbitrary State action because it
ensures that the nature and quality of the
255encroachment on the right is not
disproportionate to the purpose of the law.
Hence, the threefold requirement for a valid
law arises out of the mutual interdependence
between the fundamental guarantees against
arbitrariness on the one hand and the
protection of life and personal liberty, on
the other. The right to privacy, which is an
intrinsic part of the right to life and
liberty, and the freedoms embodied in Part
III is subject to the same restraints which
apply to those freedoms.”274. The third requirement ensures that the means
which are adopted by the legislature are proportional
to the object and needs sought to be fulfilled by the
law. Proportionality is an essential facet of the
guarantee against arbitrary state action because it
ensures that the nature and quality of the
encroachment on the right is not disproportionate to
the purpose of the law.
275. European Court of Justice in Michael Schwarz Vs.
Stadt Bochum in its judgment dated 17.10.2013, while
considering a directive of the European Parliament and
on the protection of individuals with regard to the
processing of personal data and on the free movement
of such data, has applied the proportionality
256principle. Following was laid down in Paragraph 40:
“40. Fourth, the Court must establish
whether the limitations placed on those
rights are proportionate to the aims pursued
by Regulation No. 2252/2004 and, by
extension, to the objective of preventing
illegal entry into the European Union. It
must therefore be ascertained whether the
measures implemented by that regulation are
appropriate for attaining those aims and do
not go beyond what is necessary to achieve
them (see Volker and Markus Schedule and
Eifert, paragraph 74).”276. Court of Justice of the European Union in Digital
Rights Ireland Ltd. Vs. Minister for Communications
[2015] QBECJ 127 had occasion to consider the validity
of Parliament and Council Directive 2006/24/EC on the
retention of data generated or processed by them in
connection with the provision of publicly available
electronic communications services or of public
communications networks. Applying the principle of
proportionality, it was held that principle of
proportionality requires that acts of the EU
institutions be appropriate for attaining the
legitimate objectives pursued by the legislation at
issue and do not exceed the limits of what is
257appropriate and necessary in order to achieve those
objectives. Following was laid down in Paragraph 46:
“46. In summary, Directive 2006/24 is
characterised by its functional duality. It
is, on the one hand, an entirely traditional
Directive which seeks to harmonise national
laws that are disparate (recital (5) in the
Preamble to Directive 2006/24 states that
national laws ”vary considerably”) or likely
to become so, and was adopted in the
interests of the functioning of the internal
market and precisely calibrated for that
purpose, as the court ruled in Ireland v
European Parliament. However, it is also, on
the other hand, a Directive which, even in
its harmonising function, seeks to establish
where appropriate, obligations in particular
data retention obligations which constitute,
as I shall show later, serious interference
with the enjoyment of the fundamental rights
guaranteed to European citizens by the
Charter, in particular the right to privacy
and the right to the protection of personal
data.”277. Another judgment by Court of the Justice of
European Union (Grand Chamber) is Tele2 Sverige AB Vs.
Postoch telesyrelsen. A directive of European
Parliament and of the Council concerning the
processing of personal data and the protection of
privacy in the electronic communications sector came
for consideration. In Paras 95, 96 and 116 following
258was laid down:
“95. With respect to that last issue, the
first sentence of Article 15(1) of Directive
2002/58 provides that Member States may adopt
a measure that derogates from the principle
of confidentiality of communications and
related traffic data where it is a
‘necessary, appropriate and proportionate
measure within a democratic society’, in view
of the objectives laid down in that
provision. As regards recital 11 of that
directive, it states that a measure of that
kind must be ‘strictly’ proportionate to the
intended purpose. In relation to, in
particular, the retention of data, the
requirement laid down in the second sentence
of Article 15(1) of that directive is that
data should be retained ‘for a limited
period’ and be ‘justified’ by reference to
one of the objectives stated in the first
sentence of Article 15(1) of that directive.96. Due regard to the principle of
proportionality also derives from the Court’s
settled caselaw to the effect that the
protection of the fundamental right to
respect for private life at EU level requires
that derogations from and limitations on the
protection of personal data should apply only
in so far as is strictly necessary (judgments
of 16 December 2008, Satakunnan
Markkinapörssi and Satamedia, C
73/07,EU:C:2008:727,paragraph 56; of 9
November 2010, Volker und Markus Schecke and
Eifert, C92/09 and C93/09, EU:C:2010:662,
paragraph 77; the Digital Rights judgment,
paragraph 52, and of 6 October 2015, Schrems,
C362/14, EU:C:2015:650, paragraph 92).116 As regards compatibility with the
259principle of proportionality, national
legislation governing the conditions under
which the providers of electronic
communications services must grant the
competent national authorities access to the
retained data must ensure, in accordance with
what was stated in paragraphs 95 and 96 of
this judgment, that such access does not
exceed the limits of what is strictly
necessary.”278. The U.S. Supreme Court while considering the said
test has repeatedly refused to apply the least
intrusive test. Vernonia School District Vs. Wayne
Acton, 515 US 646, 132 L.Ed. 2D 564, was a case where
a Student Athlete Drug Policy was adopted by the
School District, which authorised random urine
analysis drug testing of students participating in the
District School Athletic Programme. A student was
denied participation in Football game since he and his
parents had refused to sign the testing consent forms.
The Actons filed suit, seeking for a declaratory and
injunctive relief from enforcement of the Policy. One
of the submissions raised was that Policy is
disproportionate since it asks all the athletes to
undergo urine analysis, the test is not least
intrusive test. Repelling the least intrusive test,
260following was held:
“As to the efficacy of this means for
addressing the problem: It seems to us self
evident that a drug problem largely fueled by
the "role model" effect of athletes' drug
use, and of particular danger to athletes, is
effectively addressed by making sure that
athletes do not use drugs. Respondents argue
that a "less intrusive means to the same end"
was available, namely, "drug testing on
suspicion of drug use." Brief for Respondents
4546. We have repeatedly refused to declare
that only the "least intrusive" search
practicable can be reasonable under the
Fourth Amendment. Skinner, supra, at 629,
n.9, 103 l Ed 2d 639, 109 S Ct. 1402
(collecting cases).279. To the same effect is another judgment of U.S.
Supreme Court in Board of Education of Independent
School District Vs. Lindsay Earls, 536 US 822153
L.Ed.2d. 735.
280. The submission of the respondents that least
intrusive test cannot be applied to judge the
proportionality of Aadhaar Act has been refuted by
petitioners. Petitioners submit that least intrusive
test is a test, which was applied in large number of
cases and i.e. the test which may ensure that there is
a minimal invasion of privacy. It is submitted that
261the respondents could have switched to a smart card,
which itself contain the biometric information of a
person. Respondents submitted that least intrusive
test has not been approved either in the Modern Dental
(supra) or in the Puttaswamy case. We are also of the
view that there are several reasons due to which least
intrusive test cannot be insisted. For applying the
least intrusive test, the Court has to enter
comparative analysis of all methods of identification
available, which need to be examined with their
details and compared. Court has to arrive at finding
as to which mode of identity is a least intrusive. We
are of the view that comparison of several modes of
identity and to come to a decision, which is least
intrusive is a matter, which may be better left to the
experts to examine. Further, there are no proper
pleadings and material with regard to other modes of
identification, which could have been adopted by the
State, to come to a definite conclusion by this Court.
281. After noticing the parameters of proportionality,
we now need to apply proportionality and other tests
262to find out as to whether Section 57 satisfies the
proportionality and other tests. Section 57 begins
with the phrase “nothing contained in this Act shall
prevent the use of Aadhaar number.....” for
establishing the identity of an individual for any
purpose. Section 57 reveals following concepts and
ides, which can be para phrased in following manner:
(a) Nothing contained in this Act shall
prevent the use of Aadhaar number for
identifying the identity of an individual
for any purpose.
(b) Whether by the State or body corporate or
private person.
(c) Pursuant to any law, for the time being
in force or any contract to this effect.
282. The basic theme of the Aadhaar Act to implement
the Aadhaar programme was for purposes of disbursement
of subsidies, benefits or services to individuals
entitled for the same. By various notifications
issued under Section 7, the Government has made
applicable Aadhaar authentication for large number of
263schemes namely 133 in number. The idea behind Section
57 is that Aadhaar is liberated from the four corners
of the Act and it may not be confined to use under
Section 7 alone. The Act does not prohibit the use of
Aadhaar for any other purpose. Section 57 is thus in
a way clarificatory in nature, which enable the use of
Aadhaar for any other purposes. The petitioners have
two basic objections. Firstly, they submitted that
use of word “any purpose” is unguided and uncontrolled
and secondly it can be used by body corporate or
persons, pursuant to any law, for the time being in
force or any contract to this effect. Puttaswamy
judgment has already laid down that any infringement
of Privacy right should pass threefold test as
noticed above. The first test, which needs to be
satisfied for nonintrusion in privacy right is that
it should be backed by law. Section 57 cannot be
treated as a law, which permit use of Aadhaar number
for any purpose. The law providing for use of Aadhaar
for any purpose should be rational and proportional.
There has to be some object to be achieved by use of
264Aadhaar, in a particular case, the legislature has
ample power to provide for legislative scheme by an
enactment making use of Aadhaar and use of Aadhaar has
to be backed by a valid law. In event, it is accepted
on the strength of Section 57 that a State or body
corporate or person, on the basis of any contract to
this effect, are permitted to use Aadhaar it shall be
wholly unguided and uncontrolled, which is prone to
violate the right of privacy. Section 57 makes use of
Aadhaar on two basis. Firstly, “pursuant to any law,
for the time being in force” and secondly “any
contract to this effect”. When the legislature uses
the phrase “pursuant to any law, for the time being in
force”, obviously the word law used in Section 57 is a
law other than Section 57 of Aadhaar Act, 2016 and the
Regulations framed thereunder. When any law permits
user of Aadhaar, its validity is to be tested on the
anvil of threefold test as laid down in Puttaswamy
case, but permitting use of Aadhaar on any contract to
this effect, is clearly in violation of Right of
Privacy. A contract entered between two parties, even
265if one party is a State, cannot be said to be a law.
283. We thus, are of the view that Section 57 in so
far as it permits use of Aadhaar on “any contract to
this effect” is clearly unconstitutional and deserves
to be struck down. We may again clarify that Section
57 has to be read only to mean that it clarifies that
nothing contained in Aadhaar Act shall prevent the use
of Aadhaar for establishing the identity of an
individual for any purpose, in pursuant to any law.
Section 57 itself is not a law, which may permit use
of Aadhaar for any purpose. There has to be a valid
law in existence, which should also pass the three
fold test as laid down in Puttaswamy case for making
provision for use of Aadhaar.
284. In view of the foregoing discussions, we held
that Section 57, to the extent, which permits use of
Aadhaar by the State or any body corporate or person,
in pursuant to any contract to this effect is
unconstitutional and void. Thus, the last phrase in
main provision of Section 57, i.e. “or any contract to
266this effect” is struck down. Issue No. 11 is answered
in the following manner:
Ans.11: Section 57, to the extent, which permits use
of Aadhaar by the State or any body
corporate or person, in pursuant to any
contract to this effect is unconstitutional
and void. Thus, the last phrase in main
provision of Section 57, i.e. “or any
contract to this effect” is struck down.
Issue No.12 Whether Section 59 is void or
unconstitutional?
285. Learned counsel for the petitioners have
submitted that prior to enactment of Aadhaar Act there
was no law and all actions undertaken in pursuance of
the executive order dated 28.01.2009 including taking
of demographic and biometric information of an
individual was not backed by any law violated
fundamental right of privacy. Violation of fundamental
right of privacy cannot be cured by any subsequent
legislation. It is well settled that Executive
267actions, which breach fundamental right of a person
must have the authority of law to support it. A post
constitutional law or executive act that violates
fundamental rights is still born and void ab initio.
Further there was no consent, let alone informed
consent obtained from individuals at the time of
enrolment under the said notification. A validating
law must remove the cause of invalidity of previous
acts. The cause of invalidity in the present case was
the absence of a law governing privacy infringements.
However, Section 59 does not create such a legal
fiction where the Aadhaar Act is deemed to have been
in existence since 2009. It only declares a legal
consequence of acts done by Union since 2009, which it
cannot do. No procedural safeguards existed pre2016
and thus, even assuming that Section 59 is validly
enacted, it has to be declared unconstitutional for
violating Articles 14 and 21.
286. Replying the above submissions, respondents
submit that Section 59 is retrospective, saving
provision which provides a retrospective effect to the
268notification dated 28.01.2009 and anything done or
action taken by the Central Government under the said
Resolution.
287. The expression ‘anything done or any action under
the Resolution’ is wide enough to cover all the
actions including memorandum of undertaken which UIDAI
executed as Department of Central Government.
Section 59 seeks to save and continue under the said
Act what was done under the executive scheme. The
submission that breach of fundamental right cannot be
retrospectively cured is incorrect. The last phrase of
Section 59 uses the expression “shall be deemed”, this
expression clearly indicates creation of fiction with
the object of providing legislative support to the
action taken before the Act. That seeks to continue
the entire architecture of Aadhaar which established
under the Government Resolution dated 28.01.2009. As a
result of deeming provision all the actions under the
aforesaid scheme shall be deemed to have been done
under the Act and not under the aforesaid
notification. We may have a look on Section 59 of the
269Act which provides:
“59. Anything done or any action taken by the
Central Government under the Resolution of
the Government of India, Planning Commission
bearing notification number A43011/02/2009
Admin. I, dated the 28th January, 2009, or by
the Department of Electronics and Information
Technology under the Cabinet Secretariat
Notification bearing notification number S.O.
2492(E), dated the 12th September, 2015, as
the case may be, shall be deemed to have been
validly done or taken under this Act.”288. Justice G.P. Singh in Principles of Statutory
Interpretation, 14th Edition, while explaining the
legal fiction sum up the Principle in the following
words:
“The Legislature is quite competent to create
a legal fiction, in other words, to enact a
deeming provision for the purpose of assuming
existence of a fact which does not really
exist provided the declaration of non
existent facts as existing does not offend
the constitution. Although the word ‘deemed’
is usually used, a legal fiction may be
enacted without using that word. For
instance, the words ‘as if’ can also be used
to create a legal fiction.In interpreting a provision creating a
legal fiction, the court is to ascertain for
what purpose the fiction is created, and
after ascertaining this, the Court is to
assume all those facts and consequences which
are incidental or inevitable corollaries to
the giving effect to the fiction. But in so
270construing the fiction it is not to be
extended beyond the purpose for which it is
created, or beyond the language of the
section by which it is created.”289. A Constitution Bench judgment of this Court in
M/s. West Ramnad Electric Distribution Co. Ltd. vs.
The State of Madras and another, AIR 1962 SC 1753, has
been heavily relied by the respondents. The Madras
Legislature had passed an Act, the Madras Electricity
Supply Undertakings (Acquisition) Act, 1949 for supply
of electricity in the province of Madras. By an order
dated 17.05.1951 appellant undertaking was acquired
and possession was directed to be taken. There was
challenge to 1949 Act which challenge was upheld by
this Court in Rajahmundry Electric Supply Corporation
Ltd. v. State of Andhra Pradesh, AIR 1954 SC 251, on
the ground that Act was beyond the legislative
competence of the Madras Legislature. The Madras
Legislature passed another Act, the Madras Electricity
Supply Undertakings (Acquisition) Act, 1949, which
also received the Presidential assent. The Act
purported to validate the action taken under the 1949
271Act. A writ petition was filed in Madras High Court
challenging the action taken under 1949 Act to
continue the possession. The writ petition was
dismissed and the matter was taken to this Court. The
contention which was raised before this Court has been
noticed in paragraph 8 in the following words:
“8....Mr. Nambiar further contends that this
notification was invalid for two reasons; it
was invalid because it has been issued under
the Provisions of an Act which was void as
being beyond the legislative competence of
the Madras Legislature, and it was void for
the additional reason that before it was
issued, the Constitution of India had come
into force and it offended against the
provisions of Art. 31 of the Constitution,
and so, Art. 13(2) applied. Section 24 of the
Act, no doubt, purported or attempted to
validate this notification, but the said
attempt has failed because the Act being
prospective, s. 24 cannot have retrospective
operation. That, in substance, is the first
contention raised before us.”290. Section 24 of the 1949 Act which created a
deeming fiction validating the actions taken under the
earlier Act has been noticed in paragraph 11 which is
to the following effect:
“11. Let us then construe section 24 and
decide whether it serves to validate the
272impugned notification issued by the
respondent on the 21st September, 1951.Section 24 reads thus :
"Orders made, decisions or
directions given, notifications
issued, proceedings taken and acts
of things done, in relation to any
undertaking taken ever, if they
would have been validly made, given,
issued, taken or done, had the
Madras Electricity Supply
Undertakings (Acquisition) Act, 1949
(Madras Act XLIII of 1949), and the
rules made thereunder been in force
on the date on which the said
orders, decisions or directions,
notifications, proceeding, acts or
things, were made, given, issued,
taken or done are hereby declared to
have been validly made, given,
issued, taken or done, as the case
may be, except to the extent to
which the said orders, decisions,
directions, notifications,
proceedings, acts or things are
repugnant to the provisions of this
Acts."”291. Repelling the submission of counsel for the
appellant it was held that Section 24 had been enacted
for the purpose of retrospectively validating action
taken under the provisions of the earlier Act.
Following was held in paragraph 13:
273
“13....If the Act is retrospective in
operation and s. 24 has been enacted for the
purpose of retrospectively validating actions
taken under the provisions of the earlier
Act, it must follow by the very retrospective
operation of the relevant provisions that at
the time when the impugned notification was
issued, these provisions were in existence.
That is the plain and obvious effect of the
retrospective operation of the statute.
Therefore in considering whether Art. 31(1)
has been complied with or not, we must assume
that before the notification was issued, the
relevant provisions of the Act were in
existence and so, Art. 31(1) must be held to
have been complied with in that sense.”292. The submission was made that notification issued
under the earlier Act contravenes Article 31 which is
a fundamental right and cannot be cured by the
subsequent law. The contention has been noted in
paragraph 15:
15. That takes us to the larger issue raised
by Mr. Nambiar in the present appeals. He
contends that the power of the legislature to
make laws retrospective cannot validly be
exercised so as to care the contravention of
fundamental rights retrospectively. His
contention is that the earlier Act of 1949
being dead and nonexistent, the impugned
notification contravened Art. 31(1) and this
contravention of a fundamental right cannot
be cured by the legislature by passing a
subsequent law and making it retrospective.
In support of this argument, he has relied on
274the decision of this Court in Deep Chand v.
The State of Uttar Pradesh (1959) Supp. 2
S.C.R. 8.(AIR 1959 SC 648)....”293. It was held by the Constitution Bench that the
Legislature can effectively exercise power of
validating action taken under the law which was void
for the reason that it contravened fundamental right.
In paragraph 16 following has been held:
“16....If a law is invalid for the reason
that it has been passed by a legislature
without legislative competence, and action is
taken under its provisions, the said action
can be validated by a subsequent law passed
by the same legislature after it is clothed
with the necessary legislative power. This
position is not disputed. If the legislature
can by retrospective legislation cure the
invalidity in actions taken in pursuance of
laws which were void for want of legislative
competence and can validate such action by
appropriate provisions, it is difficult to
see why the same power cannot be equally
effectively exercised by the legislature in
validating actions taken under law which are
void for the reason that they contravened
fundamental rights. As has been pointed out
by the majority decision in Deep Chand's
case, the infirmity proceeding from lack of
legislative competence as well as the
infirmity proceeding from the contravention
of fundamental rights lead to the same result
and that is that the offending legislation is
void and honest. That being so, if the
legislature can validate actions taken under
275one class of void legislation, there is no
reason why it cannot exercise its legislative
power to validate actions taken under the
other class of void legislation. We are,
therefore, not prepared to accept Mr.
Nambiar's contention that where the
contravention of fundamental rights is
concerned, the legislature cannot pass a law
retrospectively validate actions taken under
a law which was void because it contravened
fundamental rights.”294. Shri Shyam Divan submits that the above judgment
of this Court in M/s. West Ramnad Electric
Distribution Co.Ltd. is not applicable. He submits
that unlike Section 59 of Aadhaar Act, the provisions
in West Ramnad case had no limiting words such as
‘action taken by the Central Government’. Further even
under the West Ramnad case principle, the action can
be saved would have to be proper under the previous
regime. West Ramnad actions were under an earlier
statute that was declared ultra vires, which cannot be
saved under Section 59 of the Aadhaar Act. The
collection of biometrics from individuals right upto
2016 cannot be described as lawful and intra vires the
2009 notification. If it were ultra vires the 2009
276notification, Section 59 of the Aadhaar Act cannot
validate the action.
295. We have already noticed the ratio of the judgment
as stated in paragraph 16 in the judgment in West
Ramnad case that even if earlier action which is
sought to be validated was ultra vires and violates
constitutional right, it could have been very well
validated by retrospective statute creating a deeming
fiction. We are of the view that ratio laid down in
West Ramnad case is fully applicable in the present
case.
296. Another Constitution Bench in Bishambhar Nath
Kohli and others v. State of Uttar Pradesh and others,
AIR 1966 SC 573, had occasion to consider the deeming
fiction as contained under Act 31 of 1950. Section
58(3) of Act 31 of 1950 as deeming provision that
anything done or action taken in exercise of the power
conferred under Ordinance 27 of 1949 is to be deemed
to have been done or taken in exercise of the power
277conferred by or under Act 31 of 1950. In paragraphs 7
and 8 of the judgment following has been laid down:
“7. By Ordinance 27 of 1949 a proceeding
commenced under Ordinance 12 of 1949 or
anything done or action taken in the exercise
of the powers conferred under that Ordinance
was to be deemed a proceeding commenced,
thing done and action taken under the former
Ordinance as if that Ordinance were in force
on the date on which the proceeding was
commenced, thing was done or action was
taken. Section 58(3) of Act 31 of 1950
contained a similar deeming provision that
anything done or action taken in exercise of
the power conferred under Ordinance 27 of
1949 is to be deemed to have been done or
taken in exercise of the power conferred by
or under Act 31 of 1950, as if the Act were
in force on the day on which such thing was
done or action was taken.8. By this chain of fictions, things done and
actions taken under Ordinance 12 of 1949 are
to be deemed to have been done or taken in
exercise of the powers conferred under Act 31
of 1950, as if that Act we re in force on the
day on which such thing was done or action
taken. The order passed by the Deputy
Custodian under s. 6 of Ordinance 12 of 1949
was, therefore, for the purpose of this
proceeding, to be deemed an order made in
exercise of the power conferred by Act 31 of
1950 as if that Act were in force on the day
on which the order was passed.”297. The ratio of judgment in West Ramnad(supra) has
been repeatedly applied by this Court in several
278judgments. Reference is made to Hari Singh and others
vs. The Military Estate Officer and another, 1972 (2)
SCC 239, which was a case rendered by a sevenJudge
Constitution Bench. In paragraph 16 following has been
held:
“16. The ruling of this Court in West Ramnad
Electric Distribution Co. Ltd.(1) case
establishes competence of the legislature to
make laws retrospective in operation for the
purpose of validation of action done under an
earlier Act which has been declared by a
decision of the court to be invalid. It is to
be appreciated that the validation is by
virtue of the provisions of the subsequent
piece of legislation.”
298. Justice Krishna Iyer, J. in Krishna Chandra
Gangopadhyaya and others vs. The Union of India and
others, 1975 (2) SCC 302, while considering validation
of Act held that the Legislature can retrospectively
validate what otherwise was inoperative law or action.
In paragraph 25 following has been held:
“25. The ratio of West Ramnad (supra) is
clear. The Legislature can retrospectively
validate what otherwise was inoperative law
or action. Unhappy wording, infelicitous
expression or imperfect or inartistic
drafting may not necessarily defeat, for that
reason alone, the obvious object of the
279validating law and its retrospective
content.”299. This Court again in ITW Signode India Ltd. vs.
Collector of Central Excise, 2004 (3) SCC 48, held
that curative statutes by their very nature are
intended to operate upon and affect past transaction.
In paragraph 61 following has been held:
“61. A statute, it is trite, must be read as
a whole. The plenary power of legislation of
the Parliament or the State Legislature in
relation to the legislative fields specified
under Seventh Schedule of the Constitution of
India is not disputed. A statutory act may be
enacted prospectively or retrospectively. A
retrospective effect indisputably can be
given in case of curative and validating
statute. In fact curative statutes by their
very nature are intended to operate upon and
affect past transaction having regard to the
fact that they operate on conditions already
existing. However, the scope of the
validating act may vary from case to case.”300. The argument that an action or provision hit by
Article 14 can never be validated was specifically
rejected by this Court in The State of Mysore and
another vs. d. Achiah Chetty, Etc., (1969) 1 SCC 248,
in paragraph 15 following has been held:
280
“15. Mr. S. T. Desai, however, contends that
an acquisition hit by Article 14 or anything
done previously cannot ever be validated,
unless the vice of unreasonable
classification is removed and the Validating
Act is ineffective for that reason. This
argument leads to the logical conclusion that
a discrimination arising from selection of
one law for action rather than the other,
when two procedures are available, can never
be righted by removing retrospectively one of
the competing laws from the field. This is a
wrong assumption....”301. A statute creates a legal fiction to achieve a
legislative purpose. We may refer to the celebrated
judgment of Lord Asquith in East End Dwelling Co.Ltd.
And Finsury Borough Council, 1952 AC 109, following is
the enunciation of Lord Asquith:
“If you are bidden to treat an imaginary
state of affairs as real, you must surely,
unless prohibited from doing so, also imagine
as real the consequences and incidents which,
if the putative state of affairs had in fact
existed, must inevitably have flowed from or
accompanied it... The statute says that you
must imagine a certain state of affairs; it
does not say that having done so, you must
cause or permit your imagination to boggle
when it comes to the inevitable corollaries
of that state of affairs.”302. Legislature has often created legal fiction to
save several actions which had happened prior to
281enactment. Reference is made to judgment of this Court
in Nar Bahadur Bhandari and another vs. State of
sikkim and others, (1998) 5 SCC 39. In the above case
deeming fiction was created by Section 30 of
Prevention of Corruption Act, 1988. Section 30
provides that any action taken or purported to have
been done or taken under or in pursuance of the Acts
so repeated shall be deemed to have been done or taken
under 1988 Act. Following was stated in paragraph 10:
“10....In the present case, the Act of 1988
is the repealing Act. Subsec. (2) of Section
30 reads as follows:"30(2) Notwithstanding such repeal,
but without prejudice to the
application of section 6 of the
General Clauses Act 1897 (10 of
1897), anything done or any action
taken or purported to have been done
or taken under or in pursuance of
the Acts so repealed shall, in so
far as it is not inconsistent with
the provisions of this Act, be
deemed to have been done or taken
under or in pursuance of the
corresponding provision of this
Act."12. The said Subsection while on the one
hand ensures that the application of Section
6 of the General Clauses Act is not
prejudiced, on the other it expresses a
different intention as contemplated by the
said Section 6. The last part of the above
282Subsection introduces a legal fiction
whereby anything done or action taken under
or in pursuance of the Act of 1947 shall be
deemed to have been done or taken under or in
pursuance of corresponding provisions of the
Act of 1988. That is, the fiction is to the
effect that the Act of 1988 had come into
force when such thing was done or action was
taken.”303. An elaborate consideration on deeming fiction was
made by threeJudge Bench of this Court in State of
Karnataka vs. State of Tamil Nadu and others, (2017) 3
SCC 362, one of us, Justice Dipak Misra, as he then
was, speaking for the Court in paragraphs 72 to 74:
“72. The second limb of submission of Mr.
Rohatgi as regards the maintainability
pertains to the language employed Under
Section 6(2) of the 1956 Act, which reads as
follows:“6(2) The decision of the Tribunal,
after its publication in the Official
Gazette by the Central Government
under Subsection (1), shall have the
same force as an order or decree of
the Supreme Court.”73. Relying on Section 6(2), which was
introduced by way of Amendment Act 2002 (Act
No. 14 of 2002) that came into force from
6.8.2002, it is submitted by Mr. Rohatgi that
the jurisdiction of this Court is ousted as
it cannot sit over in appeal on its own
decree. The said submission is seriously
resisted by Mr. Nariman and Mr. Naphade,
283learned senior Counsel contending that the
said provision, if it is to be interpreted to
exclude the jurisdiction of the Supreme Court
of India, it has to be supported by a
constitutional amendment adding at the end of
Article 136(2) the words "or to any
determination of any tribunal constituted
under the law made by Parliament Under
Article 262(2)" and, in such a situation, in
all possibility such an amendment to the
Constitution may be ultra vires affecting the
power of judicial review which is a part of
basic feature of the Constitution. Learned
senior Counsel for the Respondent has drawn a
distinction between the conferment and the
exclusion of the power of the Supreme Court
of India by the original Constitution and any
exclusion by the constitutional amendment. Be
that as it may, the said aspect need not be
adverted to, as we are only required to
interpret Section 6(2) as it exists today on
the statute book. The said provision has been
inserted to provide teeth to the decision of
the tribunal after its publication in the
official gazette by the Central Government
and this has been done keeping in view the
Sarkaria Commission's Report on CentreState
relations (1980). The relevant extract of the
Sarkaria Commission's Report reads as
follows:17.4.19 The Act was amended in 1980
and Section 6A was inserted. This
Section provides for framing a scheme
for giving effect to a Tribunal's
award. The scheme, inter alia
provides for the establishment of the
authority, its term of office and
other condition of service, etc. but
the mere creation of such an agency
will not be able to ensure
implementation of a Tribunal's award.Any agency set up Under Section 6A
284cannot really function without the
cooperation of the States concerned.Further, to make a Tribunal's award
binding and effectively enforceable,
it should have the same force and
sanction behind it as an order or
decree of the Supreme Court. We
recommend that the Act should be
suitably amended for this purpose.17.6.05 The InterState Water
Disputes Act, 1956 should be amended
so that a Tribunal's Award has the
same force and sanction behind it as
an order or decree of the Supreme
Court to make a Tribunal's award
really binding.74....Parliament has intentionally used the
words from which it can be construed that a
legal fiction is meant to serve the purpose
for which the fiction has been created and
not intended to travel beyond it. The purpose
is to have the binding effect of the
tribunal's award and the effectiveness of
enforceability. Thus, it has to be narrowly
construed regard being had to the purpose it
is meant to serve.304. In paragraphs 75, 76 and 77 following has been
laid down:
“75. In this context, we may usefully refer
to the Principles of Statutory
Interpretation, 14th Edition by G.P. Singh.
The learned author has expressed thus:“In interpreting a provision creating
a legal fiction, the court is to
ascertain for what purpose the
285fiction is created1, and after
ascertaining this, the Court is to
assume all those facts and
consequences which are incidental or
inevitable corollaries to the giving
effect to the fiction. But in so
construing the fiction it is not be
extended beyond the purpose for which
is created, or beyond the language of
the Section by which it is created4.It cannot also be extended by
importing another fiction5. The
principles stated above are 'well
settled'. A legal fiction may also be
interpreted narrowly to make the
statute workable.”76. In Aneeta Hada v. Godfather Travels and
Tours, (2012) 5 SCC 661, a threeJudge Bench
has ruled thus:“37. In State of T.N. v. Arooran
Sugars Ltd., (1997) 1 SCC 326 the
Constitution Bench, while dealing
with the deeming provision in a
statute, ruled that the role of a
provision in a statute creating legal
fiction is well settled. Reference
was made to Chief Inspector of Mines
v. Karam Chand Thapar, AIR 1961 SC
838, J.K. Cotton Spg. and Wvg. Mills
Ltd. v. Union of India, 1987 Supp.SCC 350, M. Venugopal v. LIC, (1994)
2 SCC 323 and Harish Tandon v. ADM,
Allahabad, (1995) 1 SCC 537 and
eventually, it was held that when a
statute creates a legal fiction
saying that something shall be deemed
to have been done which in fact and
truth has not been done, the Court
has to examine and ascertain as to
for what purpose and between which
persons such a statutory fiction is
286to be resorted to and thereafter, the
courts have to give full effect to
such a statutory fiction and it has
to be carried to its logical
conclusion.”38. From the aforesaid
pronouncements, the principle that
can be culled out is that it is the
bounden duty of the court to
ascertain for what purpose the legal
fiction has been created. It is also
the duty of the court to imagine the
fiction with all real consequences
and instances unless prohibited from
doing so. That apart, the use of the
term "deemed" has to be read in its
context and further, the fullest
logical purpose and import are to be
understood. It is because in modern
legislation, the term "deemed" has
been used for manifold purposes. The
object of the legislature has to be
kept in mind.”77. In Hari Ram, the Court has held that
in interpreting the provision creating a
legal fiction, the court is to ascertain
for what purpose the fiction is created
and after ascertaining the same, the court
is to assume all those facts and
consequences which are incidental or
inevitable corollaries for giving effect
to the fiction.”305. Applying the ratio of this Court as noticed
above, it is clear that Parliamentary legislative
intent of Section 59 is to save all actions taken by
Central Government under the notification dated
28728.01.2009 and notification dated 12.09.2015 deeming
the same to have been validly done under the Aadhaar
Act by creating a legal fiction. The intention to save
all actions taken under the aforesaid two
notifications and treat them to have done under that
Act is clear, it is the purpose and object of Section
59. Section 59 has to be interpreted to give meaning
to the legislative intent to hold otherwise shall
defeat the purpose of Section 59. As observed,
Legislature by legislative device can cover actions
taken earlier while creating any legal fiction which
has actually been done by Section 59.
306. There is one more submission of the petitioners
to be considered. Petitioner’s case is that there was
no consent or informed consent obtained from
individuals for enrolment made consequent to
notification dated 28.01.2009, the notification dated
28.01.2009 and the scheme thereafter does not clearly
indicate that the enrolment for Aadhaar was voluntary.
This Court has issued an interim order directing the
enrolment be treated as voluntary, hence, it cannot be
288accepted that those got enrolled after 28.01.2009 did
not give consent. The individual provided demographic
information and gave biometric information and also
signed the enrolment form. The residents after the
enrolment were required to confirm that information
contained were provided by them and are of his own
true and correct. On sign slip, he was required to
sign or put his thumb impression themselves. It is on
the record that more than 100 crores enrolment were
completed prior to enforcement of Aadhaar Act 2016.
On the basis of Aadhaar Act large number of persons
must have received benefits of subsidies and services,
thus, the enrolments prior to enforcement of Act, 2016
cannot be declared illegal and void. In view of the
aforementioned discussion, we answer the Issue No.12
in the following manner;
Ans.12: Section 59 has validated all actions taken by
the Central Government under the
notifications dated 28.01.2009 and
28912.09.2009 and all actions shall be deemed to
have been taken under the Aadhaar Act.
Issue No. 13 Whether Collecting the identity
information of children between 5 to 18
years is unconstitutional?307. Section 5 of the Act provides that the Authority
shall take special measures to issue Aadhaar number to
women, children, senior citizens, persons with
disability, unskilled and unorganised workers, nomadic
tribes or to such other persons who do not have any
permanent dwelling house and such other categories of
individuals as may be specified by regulations.
Section 5 contemplates special measures for issuance
of Aadhaar number to children. The Aadhaar (Enrolment
and Update) Regulations, 2016 contains some special
measures. One of the special measures is Regulation
5, which provides for information required for
enrolment of children below five years of age.
Regulation 5 is as follows:
5. Information required for enrolment of
290children below five years of age. — (1) For
children below the five years of age, the
following demographic and biometric
information shall be collected:(a) Name
(b) Date of Birth
(c) Gender
(d) Enrolment ID or Aadhaar number of
any one parent, preferably that of
the mother in the event both parents
are alive, or guardian. The Aadhaar
number or EID of such parent or
guardian is mandatory, and a field
for relationship will also be
recorded.(e) The address of such child which
is the same as that of the linked
parent / guardian.(f) Facial image of the child shall
be captured. The biometric
information of any one parent /
guardian shall be captured or
authenticated during the enrolment.(2) The Proof of Relationship (PoR) document
as listed in schedule II for establishing the
relationship between the linked
parent/guardian and the child shall be
collected at the time of enrolment. Only
those children can be enrolled based on the
relationship document (PoR), whose names are
recorded in the relationship document.
308. For children below five, no core biometric
291informations are captured and only biometric
information of any one parent/guardian is captured.
The objection raised by petitioners is with regard to
children between 5 to 18 years on the ground that they
being minors, parental consent is not taken. We have
noted above that for Aadhaar enrolment, for
verification of information consent is obtained from
the person submitting for enrolment. Thus, the
enrolment for Aadhaar number is on consent basis.
Although, it is different matter that for the purpose
of obtaining any benefit or service, a person is
obliged to enrol for Aadhaar. The petitioners are
right in their submissions that for enrolment of a
children between 5 and 18 years, there has to be
consent of their parents or guardian because they
themselves are unable to give any valid consent for
enrolment. We, thus, have to read parental consent in
Regulation 4 in so far as children of 5 to 18 years
are concerned so that the provision in reference to
children between 5 to 18 years may not become
unconstitutional. We thus answer Question No. 13 in
292following manner:
Ans.13: Parental consent for providing biometric
information under Regulation 3 demographic
information under Regulation 4 has to be read
for enrolment of children between 5 to 18
years to upheld the constitutionality of
Regulations 3 4 of Aadhaar (Enrolment and
Update) Regulations, 2016.
Issue No.14 Whether Rule 9 as amended by the
Prevention of MoneyLaundering (Second
Amendment) Rules, 2017 is
unconstitutional?309. For answering the above issue we need to advert
to the objects and scheme of the Prevention of Money
Laundering Act, 2002(PMLA, 2002). The scheme as
delineated by the Prevention of MoneyLaundering
(Maintenance of Records) Rules, 2005 also need to be
looked into before coming to the Second Amendment
Rules, 2017. The PMLA, 2002 has been enacted to
prevent moneylaundering and to provide for
confiscation of property derived from, or involved in,
293moneylaundering and for matters connected therewith
or incidental thereto. The Act has long Preamble
entire of which needs to be noted, which is as
follows:
“An Act to prevent moneylaundering and to
provide for confiscation of property derived
from, or involved in, moneylaundering and
for matters connected therewith or incidental
thereto.WHEREAS the Political Declaration and
Global Programme of Action, annexed to the
resolution S17/2 was adopted by the General
Assembly of the United Nations at its
seventeenth special session on the twenty
third day of February, 1990;AND WHEREAS the Political Declaration
adopted by the Special Session of the United
Nations General Assembly held on 8th to 10th
June, 1998 calls upon the Member States to
adopt national moneylaundering legislation
and programme; AND
WHEREAS it is considered necessary to
implement the aforesaid resolution and the
Declaration;310. Two international declarations have been
specifically mentioned in the Preamble which pave the
way for the enactment. The resolution adopted by the
General Assembly of the United Nations on
23rd February, 1990 contained the recommendations on
294moneylaundering of the Financial Action Task Force
aforesaid. The Political Declaration and Action Plan
against moneylaundering by the United Nations General
Assembly held on 10.06.1998 which called upon the
States Members of the United Nations to adopt its
declaration to the following effect:
“Political Declaration and Action Plan
against Money Laundering
adopted at the Twentieth Special Session of
the United Nations General Assembly devoted
to “countering the world drug problem
together”
New Your, 10 June 1998(excerpts)
“We, the States Members of the United
Nations,
… … … …15. Undertake to make special efforts
against the laundering of money linked to
drug trafficking and, in that context,
emphasize the importance of strengthening
international, regional and subregional
cooperation, and recommend that States that
have not yet done so adopt by the year 2003
national moneylaundering legislation and
programmes in accordance with relevant
provisions of the United Nations Convention
against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances of 1988, as well as
the measures for countering moneylaundering,
adopted at the present session;… … … …
“COUNTERING MONEYLAUNDERING”
295The General Assembly,
… … … …Emphasizing the enormous efforts of a number
of States to draw up and apply domestic
legislation that identifies the activity of
moneylaundering as a criminal offence,
Realizing the importance of progress being
made by all States in conforming to the
relevant recommendations and the need for
States to participate actively in
international and regional initiatives
designed to promote and strengthen the
implementation of effective measures against
moneylaundering,1. Strongly condemns the laundering of money
derived from illicit drug trafficking and
other serious crimes, as well as the use of
the financial systems of States for that
purpose;2. Urges all States to implement the
provisions against moneylaundering that are
contained in the United Nations Convention
against Illicit Trafficking in Narcotic Drugs
and Psychotropic Substances of 1988 and the
other relevant international instruments on
moneylaundering, in accordance with
fundamental constitutional principles, by
applying the following principles:(a) Establishment of a legislative framework
to criminalize the laundering of money
derived from serious crimes in order to
provide for the prevention, detection,
investigation and prosecution of the crime of
moneylaundering through, inter alia:(i) Identification, freezing, seizure and
confiscation of the proceeds of crime;296
(ii) International cooperation; and mutual
legal assistance in cases involving money
laundering;(iii) Inclusion of the crime of money
laundering in mutual legal assistance
agreements for the purpose of ensuring
judicial assistance in investigations, court
cases or judicial proceedings relating to
that crime;(b) Establishment of an effective financial
and regulatory regime to deny criminals and
their illicit funds access to national and
international financial systems, thus
preserving the integrity of financial systems
worldwide and ensuring compliance with laws
and other regulations against money
laundering through:(i) Customer identification and verification
requirements applying the principle of "know
your customer", in order to have available
for competent authorities the necessary
information on the identity of clients and
the financial movements that they carry out;(ii) Financial recordkeeping;
(iii) Mandatory reporting of suspicious
activity;(iv) Removal of bank secrecy impediments to
efforts directed at preventing, investigating
and punishing moneylaundering;(v) Other relevant measures;
(c) Implementation of law enforcement
measures to provide tools for, inter alia:(i) Effective detection, investigation,
prosecution and conviction of criminals
engaging in moneylaundering activity;(ii) Extradition procedures;
297
(iii) Informationsharing mechanisms;”
311. The modern world is more focused on economic
growth. Every nation tries to march forward in
achieving the rapid economic growth. Economics is
factor which not only plays a major role in the future
of nation but also in all human organisations. Most of
the individuals also aspire for their financial well
being but for the financial system and working of
economic, road blocks are felt both by the nations and
human organisations. The siphoning away of huge
volumes of money from normal economic growth poses a
real danger to the economics and affects the stability
of the global market which also empowers corruption
organised crime. Proceeds of moneylaundering are
disguised to acquire properties and other assets or to
make investments. At some stage moneylaundering
involves conversion process with the objective to give
the appearance that the money has a legitimate source.
The banking and financial secrecy is another
bottleneck for countries who genuinely want to counter
moneylaundering. It is inherent in the activity of
298moneylaundering to keep the entire process secret.
The Parliament with the objectives outlined in the
international declaration enacted the PMLA Act. Para 1
of the Statement of Objects and Reasons of Act is
stated as follows:
“STATEMENT OF OBJECTS AND REASONS
It is being realised, world over, that
moneylaundering poses a serious threat not
only to the financial systems of countries,
but also to their integrity and sovereignty.
Some of the initiatives taken by the
international community to obviate such
threat are outlined below:—(a) the United Nations Convention Against
Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, to which India is a
party, calls for prevention of laundering of
proceeds of drug crimes and other connected
activities and confiscation of proceeds
derived from such offence.(b) the Basle Statement of Principles,
enunciated in 1989, outlined basic policies
and procedures that banks should follow in
order to assist the law enforcement agencies
in tackling the problem of moneylaundering.(c) the Financial Action Task Force
established at the summit of seven major
industrial nations, held in Paris from 14th
to 16th July, 1989, to examine the problem of
moneylaundering has made forty
recommendations, which provide the foundation
material for comprehensive legislation to
combat the problem of moneylaundering. The
299recommendations were classified under various
heads. Some of the important heads are—(i) declaration of laundering of
monies carried through serious crimes
a criminal offence;(ii) to work out modalities of
disclosure by financial institutions
regarding reportable transactions;(iii) confiscation of the proceeds of
crime;(iv) declaring moneylaundering to be
an extraditable offence; and(v) promoting international co
operation in investigation of
moneylaundering.(d) the Political Declaration and Global
Programme of Action adopted by United Nations
General Assembly by its Resolution No. S17/2
of 23rd February, 1990, inter alia, calls
upon the member States to develop mechanism
to prevent financial institutions from being
used for laundering of drug related money and
enactment of legislation to prevent such
laundering.(e) the United Nations in the Special Session
on countering World Drug Problem Together
concluded on the 8th to the 10th June, 1998
has made another declaration regarding the
need to combat moneylaundering. India is a
signatory to this declaration.….................................”
312. Paragraph two of the Statement of Objects and
Reasons noticed the legislative process which was
300initiated by introducing the Prevention of Money
Laundering Bill, 1998 which was introduced in the Lok
Sabha. The Bill was referred to the Standing Committee
on Finance, which submitted its report on 04.03.1999
to the Lok Sabha. Various recommendations of the
Standing Committee were accepted by the Central
Government and made provisions of the said
recommendations in the Bill. Thereafter, the Bill was
presented in the Parliament which after receiving the
assent of the President published in the Gazette on
01.07.2005. Act, 2002 has been amended by various
Parliamentary Acts. By amendments made in the year
2013 by Act 2 of 2013, the Legislature has attempted
to keep the pace with the other countries of the world
by making more stringent provision to prevent money
laundering which is the root as well as the result of
the black money economy. Moneylaundering is defined
under Section 3 which is to the following effect:
“3. Offence of moneyLaundering.Whosoever
directly or indirectly attempts to indulge or
knowingly assists or knowingly is a party or
is actually involved in any process or
activity connected proceeds of crime
including its concealment, possession,
301acquisition or use and projecting or claiming
it as untainted property shall be guilty of
offence of moneylaundering.”
313. Section 2 (ha) defines client and Section 2(wa)
defines reporting entity which are as follows;
“2.(ha) "client" means a person who is
engaged in a financial transaction or
activity with a reporting entity and includes
a person on whose behalf the person who
engaged in the transaction or activity, is
acting;(wa) "reporting entity" means a banking
company, financial institution, intermediary
or a person carrying on a designated business
or profession;”314. Section 12 lays down various obligations on
reporting entity to maintain records. Section 12(1)(c)
reads:
“Section 12. Reporting entity to maintain
records.(l) Every reporting entity shall
… … … …(c) verify the identity of its
clients in such manner and subject to
such conditions, as may be
prescribed; “
302315. The Central Government in exercise of its rule
making power has made Rules, namely, the Prevention of
Moneylaundering (Maintenance of Records) Rules, 2005
(hereinafter referred to as “Rules, 2005). In the
present case challenge is to Rule 9 as amended by
Second Amendment Rules, 2017. We may thus notice the
amendments made in Rule 9 by Second Amendment Rules,
2017. By Second Amendment Rules, 2017, subRule (4)
to subRule (9) of Rule 9 were substituted in
following manner:
“(b) in rule 9, for subrule (4) to subrule
(9), the following subrules shall be
substituted, namely:—
“(4) Where the client is an individual, who
is eligible to be enrolled for an Aadhaar
number, he shall for the purpose of subrule
(1) submit to the reporting entity,—(a) the Aadhaar number issued by the
Unique Identification Authority of
India; and(b) the Permanent Account Number or
Form No. 60 as defined in Incometax
Rules, 1962,
and such other documents including in
respect of the nature of business and
financial status of the client as may
be required by the reporting entity:303
Provided that where an Aadhaar
number has not been assigned to a
client, the client shall furnish
proof of application of enrolment for
Aadhaar and in case the Permanent
Account Number is not submitted, one
certified copy of an 'officially
valid document' shall be submitted.Provided further that photograph
need not be submitted by a client
falling under clause (b) of subrule
(1).(4A) Where the client is an individual, who
is not eligible to be enrolled for an Aadhaar
number, he shall for the purpose of subrule
(1), submit to the reporting entity, the
Permanent Account Number or Form No. 60 as
defined in the Incometax Rules, 1962:Provided that if the client does not
submit the Permanent Account Number, he shall
submit one certified copy of an ‘officially
valid document' containing details of his
identity and address, one recent photograph
and such other documents including in respect
of the nature or business and financial
status of the client as may be required by
the reporting entity.(5) Notwithstanding anything contained in
subrules (4) and (4A), an individual who
desires to open a small account in a banking
company may be allowed to open such an
account on production of a selfattested
photograph and affixation of signature or
thumb print, as the case may be, on the form
for opening the account:Provided that
(i) the designated officer of the
banking company, while opening the
304small account, certifies under his
signature that the person opening the
account has affixed his signature or
thump print, as the case may be, in
his presence;(ii) the small account shall be
opened only at Core Banking Solution
linked banking company branches or in
a branch where it is possible to
manually monitor and ensure that
foreign remittances are not credited
to a small account and that the
stipulated limits on monthly and
annual aggregate of transactions and
balance in such accounts are not
breached, before a transaction is
allowed to take place;(iii) the small account shall remain
operational initially for a period of
twelve months, and thereafter for a
further period of twelve months if
the holder of such an account
provides evidence before the banking
company of having applied for any of
the officially valid documents within
twelve months of the opening of the
said account, with the entire
relaxation provisions to be reviewed
in respect of the said account after
twentyfour months;(iv) the small account shall be
monitored and when there is suspicion
of money laundering or financing of
terrorism or other high risk
scenarios, the identity of client
shall be established through the
production of officially valid
documents, as referred to in subrule
(4) and the Aadhaar number of the
client or where an Aadhaar number has
305not been assigned to the client,
through the production of proof of
application towards enrolment for
Aadhaar along with an officially
valid document;Provided further that if the
client is not eligible to be enrolled
for an Aadhaar number, the identity
of client shall be established
through the production of an
officially valid document;(v) the foreign remittance shall not
be allowed to be credited into the
small account unless the identity of
the client is fully established
through the production of officially
valid documents, as referred to in
sub rule (4) and the Aadhaar number
of the client or where an Aadhaar
number has not been assigned to the
client, through the production of
proof of application towards
enrolment for Aadhaar along with an
officially valid document:Provided that if the client is
not eligible to be enrolled for the
Aadhaar number, the identity of
client shall be established through
the production of an officially valid
document.(6) Where the client is a company, it shall
for the purposes of subrule (1), submit to
the reporting entity the certified copies of
the following documents:—(i) Certificate of incorporation;
(ii) Memorandum and Articles of
Association;306
(iii) A resolution from the Board of
Directors and power of attorney
granted to its managers, officers or
employees to transact on its behalf;(iv) (a) Aadhaar numbers; and
(b) Permanent Account Numbers or Form
60 as defined in the Incometax
Rules, 1962.issued to managers, officers or
employees holding an attorney to
transact on the company’s behalf or
where an Aadhaar number has not been
assigned, proof of application
towards enrolment for Aadhaar and in
case Permanent Account Number is not
submitted an officially valid
document shall be submitted:Provided that for the purpose of
this clause if the managers, officers
or employees holding an attorney to
transact on the company's behalf are
not eligible to be enrolled for
Aadhaar number and do not submit the
Permanent Account Number, certified
copy of an officially valid document
shall be submitted.(7) Where the client is a partnership firm,
it shall, for the purposes of subrule (1),
submit to the reporting entity the certified
copies of the following documents:—(i) registration certificate;
(ii) partnership deed; and
(iii) (a) Aadhaar number; and
(b) Permanent Account Number or Form
60 as defined in the Incometax
Rules, 1962.307
issued to the person holding an
attorney to transact on its behalf or
where an Aadhaar number has not been
assigned, proof of application
towards enrolment for Aadhaar and in
case Permanent Account Number is not
submitted an officially valid
document shall be submitted:Provided that for the purpose of
this clause, if the person holding an
attorney to transact on the company's
behalf is not eligible to be enrolled
for Aadhaar number and does not
submit the Permanent Account Number,
certified copy of an officially valid
document shall be submitted.(8) Where the client is a trust, it shall,
for the purposes of subrule (1) submit to
the reporting entity the certified copies of
the following documents:—(i) registration certificate;
(ii) trust deed; and
(iii) (a) Aadhaar number; and
(b) Permanent Account Number or Form
60 as defined in the Incometax
Rules, 1962,
issued to the person holding an
attorney to transact on its behalf or
where Aadhaar number has not been
assigned, proof of application
towards enrolment for Aadhaar and in
case Permanent Account Number is not
submitted an officially valid
document shall be submitted:Provided that for the purpose
of this clause if the person holding
an attorney to transact on the
308company's behalf is not eligible to
be enrolled for Aadhaar number and
does not submit the Permanent Account
Number, certified copy of an
officially valid document shall be
submitted.(9) Where the client is an unincorporated
association or a body of individuals, it
shall submit to the reporting entity the
certified copies of the following documents:—(i) resolution of the managing body
of such association or body of
individuals;(ii) power of attorney granted to him
to transact on its behalf;(iii) (a) the Aadhaar number; and
(b) Permanent Account Number or Form
60 as defined in the Incometax
Rules, 1962,
issued to the person holding an
attorney to transact on its behalf or
where Aadhaar number has not been
assigned, proof of application
towards enrolment for Aadhaar and in
case the Permanent Account Number is
not submitted an officially valid
document shall be submitted; and(iv) such information as may be
required by the reporting entity to
collectively establish the legal
existence of such an association or
body of individuals:Provided that for the purpose of
this clause if the person holding an
attorney to transact on the company’s
behalf is not eligible to be enrolled
for Aadhaar number and does not
309submit the Permanent Account Number,
certified copy of an officially valid
document shall be submitted.”(c) after subrule (14), the
following subrules shall be
inserted, namely,—
“(15) Any reporting entity, at the
time of receipt of the Aadhaar number
under provisions of this rule, shall
carry out authentication using either
eKYC authentication facility or
Yes/No authentication facility
provided by Unique Identification
Authority of India.(16) In case the client referred to
in subrules (4) to (9) of rule 9 is
not a resident or is a resident in
the States of Jammu and Kashmir,
Assam or Maghalaya and does not
submit the Permanent Account Number,
the client shall submit to the
reporting entity one certified copy
of officially valid document
containing details of his identity
and address, one recent photograph
and such other document including in
respect of the nature of business and
financial status of the client as may
be required by the reporting entity.(17) (a) In case the client, eligible
to be enrolled for Aadhaar and obtain
a Permanent Account Number, referred
to in subrules (4) to (9) of rule 9
does not submit the Aadhaar number or
the Permanent Account Number at the
time of commencement of an account
based relationship with a reporting
entity, the client shall submit the
same within a period of six months
310from the date of the commencement of
the account based relationship:Provided that the clients,
eligible to be enrolled for Aadhaar
and obtain the Permanent Account
Number, already having an account
based relationship with reporting
entities prior to date of this
notification, the client shall submit
the Aadhaar number and Permanent
Account Number by 31st December,
2017.(b) As per regulation 12 of the
Aadhaar (Enrolment and Update)
Regulations, 2016, the local
authorities in the State Governments
or Unionterritory Administrations
have become or are in the process of
becoming UIDAI Registrars for Aadhaar
enrolment and are organising special
Aadhaar enrolment camps at convenient
locations for providing enrolment
facilities in consultation with UIDAI
and any individual desirous of
commencing an account based
relationship as provided in this
rule, who does not possess the
Aadhaar number or has not yet
enrolled for Aadhaar, may also visit
such special Aadhaar enrolment camps
for Aadhaar enrolment or any of the
Aadhaar enrolment centres in the
vicinity with existing registrars of
UIDAI.(c) In case the client fails to
submit the Aadhaar number and
Permanent Account Number within the
aforesaid six months period, the said
account shall cease to be operational
till the time the Aadhaar number and
311Permanent Account Number is submitted
by the client:Provided that in case client
already having an account based
relationship with reporting entities
prior to date of this notification
fails to submit the Aadhaar number
and Permanent Account Number by 31st
December, 2017, the said account
shall cease to be operational till
the time the Aadhaar number and
Permanent Account Number is submitted
by the client.(18) In case the identity information
relating to the Aadhaar number or
Permanent Account Number submitted by
the client referred to in subrules
(4) to (9) of rule 9 does not have
current address of the client, the
client shall submit an officially
valid document to the reporting
entity.”316. The challenge to Second Amendment Rules, 2017 is
on the ground that it violate Articles 14, 19(1)(g),
21 and 300A of the Constitution of India; Sections 3,
7 and 51 of the Aadhaar Act and also ultra vires to
the provisions of PMLA Act, 2002.
317. Elaborating his submissions Shri Arvind P. Datar
learned senior counsel submits that Second Amendment
Rules violate Article 14 and 21 since persons choosing
312not to enrol for Aadhaar number cannot operate bank
account and valid explanation has to be given as to
why all banks have to be authenticated.
318. Violative of Article 19(1)(g) because the Rules
refer to companies, firms, trusts, etc. whereas
Aadhaar Act is only to establish identity of
individuals. Violative of Article 300A since even
temporary deprivation can only be done by primary
legislation. The Second Amendment Rules do not pass
proportionality test. No proper purpose has been
established. No explanation has been given that the
measures undertaken to such are rationale and
connected to the fulfillment of the purpose and there
are no alternative measures with a lesser degree of
legislation. When the banks have already verified all
accounts as per eKYC norms, it is completely
arbitrary to make permanent linking/seeding of all
Aadhaar numbers with the bank accounts. Second
Amendment Rules fail to satisfy the proportionality
test, are irrational, and manifestly arbitrary.
313319. Shri Tushar Mehta, learned Additional Solicitor
General refuting the submission, submits that Second
Amendment Rules carry on the object of 2002, Act. The
verification of bank account by way of Aadhaar is done
for the reason that often bank accounts are opened in
either fictitious names or in the name of wrong
persons on the basis of forged identity documents and
financial crimes are committed. It is seen that
accommodation entries are mostly provided through the
banking channels by bogus companies to convert black
money into white. Benami transactions routinely take
place through banking channels. All of the above, can
to a large extent be checked by verifying Aadhaar with
bank accounts to ensure that the account belongs to
the person who claims to be the account holder and
that he or she is a genuine person. Verification of
bank account with Aadhaar also ensures that the direct
benefit transfer of subsidies reach the Aadhaar
verified bank account and is not diverted to some
other account. Shell companies are often used to open
bank accounts to hold unaccounted money of other
314entities under fictitious identities which will also
be curbed once Aadhaar verification is initiated.
320. Now, we come to the respective submissions of
the parties. A perusal of the Second Amendment Rules,
2017 indicates that the State has sought to make the
provisions of PMLA more robust and ensure that the
ultimate object of the Act is achieved. Aadhaar Act,
2016 having been enacted with effect from 01.07.2016,
it was decided to get the accounts verified by
Aadhaar. Amended Rules help all concerned to detect
fictitious, ghost and benami accounts. The object of
the PMLA and the definition of beneficial owner Act
seeks to traverse behind the corporate veil of shell
companies and spurious Directors in order to ascertain
the real natural persons controlling the accounts in
the reporting entities. The Amendment Rules applicable
to reporting entities and the legitimate aim sought to
be achieved by the State that is conclusive
identification of a natural person or the beneficial
owner. The statutory rules cast an obligation on all
account holders to get their identity verified by
315Aadhaar mechanism and those who are already holding
account in the reporting entity they are required to
submit the Aadhaar number or proof of their applied
Aadhaar identity. When a statute puts obligation on
account holder to get identity verification in a
particular manner a person chose not to obtain Aadhaar
number cannot complain his disentitlement of
operating his account. The submission of the
petitioner that there is no valid explanation as to
why all bank accounts have to be authenticated also
cannot be accepted. Aadhaar provides a mechanism truly
identifies an account holder, which eliminates
fraudulent accounts existed of nonexisted persons and
in ghost names. The object of inserting the Rule is to
make it possible to weed out fake and duplicate PANs
and false bank accounts. The Second Amendment Rules
are step in direction to cure the menace of fake bank
accounts held by the shell companies in the name of
dummy directors, money laundering, terror financing
etc. It is relevant to notice that Aadhaar number is
required to be given at the time of opening of the
316account based relationship and not for every
transaction conducted by an account holder of the
bank. Those who have already existing accounts are
required to submit only once their Aadhaar number for
verification. The requirement of Aadhaar number being
given only for once is not any cumbersome or undue
burden on an account holder. The object of the Second
Amendment Rules is towards the legitimate aim of the
State and having nexus with the object sought to be
achieved by the enactment. The submission of Aadhaar
number only once by an account holder is a
proportionate measure. We have already referred to
judgments where doctrine of proportionality has been
expounded. While adjudging a statutory provision from
the angle of the proportionality the Court has to
examine as to whether statutory measure contained in
statutory provision is not excessive as against the
object which seeks to achieve. The legislature has
margin of discretion while providing for one or other
measures to achieve an object. Unless the measures
foully unreasonable and disproportionate, court does
317not normally substitutes its opinion. On the basis of
Rule 9(17)(c), petitioner contends that in the event
account holder fails to submit the Aadhaar number and
PAN within a period as mentioned in the aforesaid
Rules account shall cease to be operational till the
time Aadhaar number and PAN is submitted by the
client. Petitioner alleged violation of Article 300A.
The petitioner’s case is that account of a person is
his property to which he cannot be deprived, saved by
the authority of law. For nonsubmission of Aadhaar
number and PAN only consequence which is contemplated
by subrule (c) is that account shall cease to be
operational. We are of the view that the account
remains belonging to the account holder and the amount
in the account is only his amount and there is no
deprivation of the property of account holder. Under
the banking rules and procedures, there are several
circumstances where account becomes unoperational. A
nonoperational account also is an account which
belongs to the account holder and amount laying in the
nonoperational account is neither forfeited by the
318bank nor taken out from the said account. Further,
account is ceased operational only till the time
Aadhaar number and PAN is submitted. The consequences
provided is only to effectuate the purpose of the Act
and the Rules i.e. account be verified by Aadhaar
mechanism. It is not the intent to deprive the account
holder of the amount lying in the account. We, thus,
do not find any substance in the submission of the
petitioner that Rule 9(17)(c) violates right under
Article 300A. Aadhaar number providing for
verification of an account also cannot be held to be
violating right under Article 21. The reporting entity
i.e. banks and financial institutions under various
statutes are required to provide information of a bank
account to different authorities including income tax
authority, account verification by Aadhaar is not for
the purpose of keeping a track on the transaction done
by an individual. As noted above Aadhaar number has to
be given only once for opening of the account or for
verification of the account and transactions are not
319to be made on the basis of Aadhaar verification each
time.
321. One of the submissions which has been made by
the petitioner also is that Rules violate Article
19(1)(g). It is submitted that Rule refers to
companies, firms, trusts etc. whereas Aadhaar Act is
only to establish identity of individual. For example
subrule (6) of Rule 9 as amended by Second Amendment
Rules, 2017 provides that where client is a company,
it shall for the purposes of subrule (1), submit to
the reporting entity the certified copies of the
documents enumerated therein. Rule requiring Aadhaar
number and PAN or Form 60 as defined in Income Tax
Rules, 1962, issued to managers, officers or employees
holding an attorney to transact on the company’s
behalf, is for the purpose to find out the beneficial
owner behind the company. One of the objects of the
Act is to detect moneylaundering wherever it is
found. Inquiring details of the company to find out
shell companies and ghost companies and the real
beneficial owner cannot be said to be foreign to the
320object of the Act. Companies, partnership firms,
trusts or incorporated institutions or body of
individuals cannot complain any violation of rights
under Article 19(1)(g). There is no amount of
restriction in the right of aforesaid in carrying out
any profession, or any trade or business. Petitioners
have also contended that amended Rule 9 also violates
Section 3, 7 and 51 of the Aadhaar Act. Section 3
provides for enrolment under Aadhaar scheme. Section 7
provides for requirement of proof of Aadhaar number
for receipt of certain subsidies, benefits and
services, etc. Section 51 relates to delegation by the
authority to any Member, officer of the authority or
any other person such of the powers and functions
under the said Act except the power under Section 54.
Rules cannot be held in any manner violating Sections
3, 7 and 51. The rules provide for use of Aadhaar for
verification of bank account by law as contemplated by
Section 57 of the Aadhaar Act.
322. It is further submitted that Amendment Rules are
also ultra vires to the PMLA, 2002. Shri Arvind P
321Datar has also referred to judgment of the U.K.
Supreme Court in Bank Mellat v. Her Majesty’s
Treasury, (2013) UKSC 39. He has relied on principle
of proportionality as summed in paragraph 20 which is
to the following effect:
“20....The classic formulation of the test is
to be found in the advice of the Privy
Council, delivered by Lord Clyde, in De
Freitas v Permanent Secretary of Ministry of
Agriculture, Fisheries, Lands and Housing
[1999] 1 AC 69 at 80. But this decision,
although it was a milestone in the
development of the law, is now more important
for the way in which it has been adapted and
applied in the subsequent caselaw, notably R
(Daly) v Secretary of State for the Home
Department [2001] 2 AC 532 (in particular the
speech of Lord Steyn), R v Shayler [2003] 1
AC 247 at paras 5759 (Lord Hope of
Craighead), Huang v Secretary of State for
the Home Department [2007] 2 AC 167 at para
19 (Lord Bingham of Cornhill) and R (Quila) v
Secretary of State for the Home Department
[2012] 1 AC 621 at para 45. Their effect can
be sufficiently summarised for present
purposes by saying that the question depends
on an exacting analysis of the factual case
advanced in defence of the measure, in order
to determine (i) whether its objective is
sufficiently important to justify the
limitation of a fundamental right; (ii)
whether it is rationally connected to the
objective; (iii) whether a less intrusive
measure could have been used; and (iv)
whether, having regard to these matters and
to the severity of the consequences, a fair
balance has been struck between the rights of
322the individual and the interests of the
community. These four requirements are
logically separate, but in practice they
inevitably overlap because the same facts are
likely to be relevant to more than one of
them.”(emphasis added)323. The principles of proportionality as noticed in
the aforesaid judgment are substantially same which
had been laid down in Puttaswamy case and Modern
Dental (supra) only one difference in the above two
judgments is that although both the judgments noticed
the least intrusive test but in ultimate conclusion
the said test was not reflected in the ratio of the
above two judgments.
324. In the foregoing discussions, we come to the
conclusion that Rule 9 of Second Amendment Rules, 2017
fully satisfies threefold test as laid down in
Puttaswamy case and the submission that the Rule is
unconstitutional has to be rejected. We answer Issue
No. 14 in the following manner:
Ans.14: Rule 9 as amended by PMLA (Second Amendment)
Rules, 2017 is not unconstitutional and does
not violate Articles 14, 19(1)(g), 21 300A
323of the Constitution and Sections 3, 7 51 of
the Aadhaar Act. Further Rule 9 as amended
is not ultra vires to PMLA Act, 2002.
Issue No. 15 Circular dated 23.03.2017 issued by
Ministry of Communications, Department
of Telecommunications325. The petitioners have attacked the circular dated
23.03.2017 and submitted that the circular is ultra
vires. By circular dated 23.03.2017, Department of
Telecommunications has directed that all licensees
shall reverify all existing mobile subscribers
(prepaid and postpaid) through Aadhaar based ekyc
process. Petitioners submitted that linking the sim
with Aadhaar number is breach of privacy violating
Article 21 of the Constitution. Elaborating their
challenge, it is contended that circular dated
23.03.2017 is not covered by any of the provisions of
Aadhaar Act neither Section 7 nor Section 57.
Circular dated 23.03.2017 is not a law under Part III
of the Constitution and thus same cannot put any
restriction on privacy right. It is submitted that
324circular dated 23.03.2017 does not satisfy threefold
test as laid down in Privacy judgment.
326. Learned counsel for the respondents justifying
the linking of Aadhaar with sim card submits that non
verifying sim cards, have caused serious security
threats, which has been noticed by this Court in
several judgments. It is submitted that circular
dated 23.03.2017 was issued on the basis of
recommendation of Telecom Regulatory Authority of
India. Respondents further submits that circular
dated 23.03.2017 has been issued in reference to this
Court's direction in Lokniti Foundation Vs. Union of
India and Another, (2017) 7 SCC 155. This court
having approved the action, no exception can be taken
by the petitioner to the circular dated 23.03.2017.
It is submitted that the Central Government, which has
right to grant license can always put a condition in
the license obliging the licensee to verify the sim
cards under the Aadhaar verification. To impose such
condition is in the statutory power granted to the
Government under Section 4 of the Indian Telegraph
325Act, 1885.
327. We need to scrutinise the circular dated
23.03.2017 on the ground of attack alleged by the
petitioners and justification as offered by the
respondents. Circular dated 23.03.2017 has been
addressed by the Ministry of Communications,
Department of Telecommunications to all Unified
Licensees/Unified Access Service Licensees/Cellular
Mobile Telephone Service Licensees with subject:
implementation of orders of Supreme Court regarding
100% EKYC of existing subscribers. Para 1 to 3 of
the circular may be noticed, which are to the
following effect:
“Hon'ble Supreme Court, in its order
dated 06.02.2017 passed in Writ Petition
(C) No. 607/2016 filed by Lokniti
Foundation v/s Union of India, while
taking into cognizance of "Aadhaar based
EKYC process for issuing new telephone
connection" issued by the Department,
has interalia observed that "an
effective process has been evolved to ensure
identity verification, as well as, the
addresses of all mobile phone subscribers for
new subscribers. In the near future, and more
326particularly, within one year from today, a
similar verification will be completed, in
case of existing subscribers." This amounts
to a direction which is to be completed
within a time frame of one year.2. A meeting was held on 13.02.2017 in
the Department with the telecom industry
wherein UIDAI, TRAI and PMO
representatives also participated to
discuss the way forward to implement the
directions of Hon'ble Supreme Court.Detailed discussions and deliberations
were held in the meeting. The
suggestions received from the industry
have been examined in the Department.3. Accordingly, after taking into
consideration the discussions held in
the meeting and suggestions received
from telecom industry, the undersigned
is directed to convey the approval of
competent authority that all Licensees
shall reverify all existing mobile
subscribers (prepaid and postpaid)
through Aadhaar based EKYC process as
mentioned in this office letter no. 800
29/2010VAS dated 16.08.2016. The
instructions mentioned in subsequent
paragraphs shall be strictly followed
while carrying out the reverification
exercise.”
327328. The circular of the Department of
Telecommunications directing the licensees to
mandatorily verify existing sim subscribers in turn
resulted in mobile telephone service licensees
directing the subscribers to get their sim seeded with
Aadhaar. Repeated messages and directions have been
issued by Cellular Mobile Telephone Service operators.
Compulsory seeding of Aadhaar with mobile numbers has
to be treated to be an intrusion in Privacy Right of a
person. Any invasion on the Privacy Right of a person
has to be backed by law as per the threefold test
enumerated in Puttaswamy case (supra). Existence of a
law is the foremost condition to be fulfilled for
restricting any Privacy Right. Thus, we have to first
examine whether circular dated 23.03.2017 can be said
to be a 'law'.
329. The law as explained in Article 13(3) has to be
applied for finding out as to what is law. Article
13(3)(a) gives an inclusive definition of law in
following words:
(a) “law” includes any Ordinance, order, bye
328law, rule, regulation, notification, custom
or usage having in the territory of India the
force of law;330. The circular dated 23.03.2017 at best is only an
executive instruction issued on 23.03.2017 by the
Ministry of Communications, Department of
Telecommunications. The circular does not refer to
any statutory provision or statutory base for issuing
the circular. The subject of circular as noted above
indicate that circular has been issued for
implementation of orders of Supreme Court regarding
100% EKYC based reverification of existing
subscribers. It is necessary to notice the judgment
of this Court dated 06.02.2017, a reference to which
is made in the circular itself. The order dated
06.02.2017 was issued by this Court in a Writ Petition
filed by Lokniti Foundation Vs. Union of India and
Another, (2017) 7 SCC 155. The petitioners have filed
a writ petition with a prayer that identity of each
subscriber and also the members should be verified so
that unidentified and unverified subscribers cannot
misuse mobile phone. After issuing the notice, Union
329of India had filed a counter affidavit, where Union of
India stated that Department has launched Aadhaar
based EKYC for issuing mobile connections on
16.8.2016.
331. Paras 2 to 6 of the judgment, which is relevant
for the present purpose are as follows:
2. Consequent upon notice being issued to
the Union of India, a short counter affidavit
has been filed on its behalf, wherein, it is
averred as under:“22. That however, the department has
launched `Aadhaar based EKYC for
issuing mobile connections' on 16th
August, 2016 wherein the customer as
well as Point of Sale (PoS) Agent of
the TSP will be authenticated from
Unique Identification Authority of
India (UIDAI) based on their
biometrics and their demographic data
received from UIDAI is stored in the
database of TSP along with time
stamps. Copy of letter No.800
29/2010VAS dated 16.08.2016 is
annexed herewith and marked as
Annexure R1/10.23. As on 31.01.2017, 111.31 Crores
Aadhaar card has been issued which
represent 87.09% of populations.However, still there are substantial
number of persons who do not have
Aadhaar card because they may not be
interested in having Aadhaar being 75
years or more of age or not availing
330any benefit of pension or Direct
Benefit Transfer (DBT). Currently
Aadhaar card or biometric
authentication is not mandatory for
obtaining a new telephone connection.As a point of information, it is
submitted that those who have Aadhaar
card/number normally use the same for
obtaining a new telephone connection
using EKYC process as mobile
connection can be procured within few
minutes in comparison to 12 days
being taken in normal course.24. That in this process, there will
be almost `NIL' chances of delivery
of SIM to wrong person and the
traceability of customer shall
greatly improve. Further, since no
separate document for Proof of
Address or Proof of Identity will be
taken in this process, there will be
no chances of forgery of documents.”3. The learned Attorney General, in his
endeavour to demonstrate the effectiveness of
the procedure, which has been put in place,
has invited our attention to the application
form, which will be required to be filled up,
by new mobile subscribers, using eKYC
process. It was the submission of the learned
Attorney General, that the procedure now
being adopted, will be sufficient to
alleviate the fears, projected in the writ
petition.4. Insofar as the existing subscribers are
concerned, it was submitted on behalf of the
Union of India, that more than 90% of the
subscribers are using prepaid connections.
It was pointed out, that each prepaid
connection holder, has to per force renew his
331connection periodically, by making a deposit
for further user. It was submitted, that
these 90% existing subscribers, can also be
verified by putting in place a mechanism,
similar to the one adopted for new
subscribers. Learned Attorney General states,
that an effective programme for the same,
would be devised at the earliest, and the
process of identity verification will be
completed within one year, as far as
possible.5. In view of the factual position brought to
our notice during the course of hearing, we
are satisfied, that the prayers made in the
writ petition have been substantially dealt
with, and an effective process has been
evolved to ensure identity verification, as
well as, the addresses of all mobile phone
subscribers for new subscribers. In the near
future, and more particularly, within one
year from today, a similar verification will
be completed, in the case of existing
subscribers. While complimenting the
petitioner for filing the instant petition,
we dispose of the same with the hope and
expectation, that the undertaking given to
this Court, will be taken seriously, and will
be given effect to, as soon as possible.6. The instant petition is disposed of, in
the above terms.”332. Para 5 of the judgment contains the operative
portion of the order, which states "we dispose of the
same with the hope and expectation, that the
undertaking given to this Court, will be taken
332seriously, and will be given effect to, as soon as
possible”. The order of this Court as extracted above
itself states that the Court itself did not give any
direction rather noticed the stand of Union of India
where it informed to the Court that the department has
already launched Aadhaar based eKYC for issuing
mobile connections. For 90 per cent of the existing
subscribers, Attorney General has stated that an
effective programme would be devised at the earliest
and will be completed within one year.
333. We are clear in our mind that this Court on
06.02.2017 only noticed the stand of the Union of
India and disposed of the writ petition expecting that
undertaking given to this Court shall be given effect
to.
334. The circular dated 23.03.2017 cites the order of
this Court as a direction, which according to
department was to be completed within the time frame
of one year. Circular further states that the meeting
was held on 13.02.2017 in the Department with the
333telecom industry wherein UIDAI, TRAI and PMO
representatives also participated.
335. This Court thus in Lokniti case (supra) did not
examine the Aadhaar based eKYC process in context of
right of privacy. Thus, the order of this Court dated
06.02.2017 cannot absolve the Government from
justifying its circular as per law.
336. One of the submissions, which has been raised by
the respondents to cite a statutory base to the
circular is that the circular has been issued in
pursuance of recommendation made by TRAI under Section
11(1)(a) of TRAI Act, 1997. Section 11 of the TRAI
Act, 1997 provides for function of authority Section
11(1)(a):
(a) make recommendations, either suo motu or
on a request from the licensor, on the
following matters, namely:—(i) need and timing for introduction of
new service provider;(ii) terms and conditions of licence to
a service provider;(iii) revocation of licence for non
compliance of terms and conditions of
licence;334
xxxxxxxxxxxxxxxx
337. One of the functions of the TRAI is to give
recommendations as per Section 11(1)(a) on the matters
enumerated therein. The recommendations of TRAI were
only recommendations and the mere fact that circular
dated 23.03.2017 was issued after the recommendation
was sent by TRAI, circular dated 23.03.2017 does not
acquire any statutory character. Circular dated
23.03.2017 thus cannot be held to be a law within the
meaning of Part III of the Constitution.
338. Shri Rakesh Dwivedi, learned counsel appearing
for the respondents has submitted that the Central
Government being licensor, it is fully entitled to
provide for any condition in its license, which
condition becomes binding on the licensee. Referring
to license agreement for Unified Licensees, Shri
Dwivedi submits that one of the conditions in the
agreement was Condition No. 16.1 which is to the
following effect:
"16.1 The Licensee shall be bound by the
335terms and conditions of this License
Agreement as well as instructions as are
issued by the Licensor and by such
orders/directions/regulations of TRAI as per
provisions of the TRAI Act, 1997 as amended
from time to time.”339. Shri Dwivedi has also relied on a number of
judgments in support of his submissions that
conditions can be validly laid down. he has relied on
Bagalkot Cement Co. Ltd. Vs. R.K. Pathan and Others,
AIR 1963 SC 439, where this Court while considering
the Industrial Employment (Standing Orders) Act, 1946
observed that object of the Act was to require the
employers to make the conditions of employment precise
and definite and the Act ultimately intended to
prescribe these conditions in the form of Standing
Orders so that what used to be governed by a contract
herebefore would now be governed by the Statutory
Standing Orders.
340. The above judgment at best can be read to mean
that conditions, which are enumerated in the Standing
Orders become statutory conditions. No benefit of the
judgment can be taken by the respondents in the
336present case since even if it is put in the condition
in the agreement between licensee and subscribers that
licensee shall be bound to instructions as issued by
licensor, the said condition does not become statutory
nor take shape of a law. Sukhdev Singh and Others Vs.
Bhagatram Sardar Singh Raghuvanshi and Another, (1975)
1 SCC 421 was relied, where this Court held that rules
and regulations framed by ONGC, LIC and Industrial
Finance Corporation have the force of law. There
cannot be any denial that rules framed under statutory
provisions will have force of law, thus, this case has
no application. Similarly, reliance on Lily Kurian
Vs. Sr. Lewina and Others, (1979) 2 SCC 124, Alpana V.
Mehta Vs. Maharashtra State Board of Secondary
Education and Another, (1984) 4 SCC 27, St. Johns
Teachers Training Institute Vs. Regional Director,
National Council for Teacher Education and Another,
(2003) 3 SCC 321 were all cases, where conditions
were laid down under the regulations, which were
statutory in nature. Those cases in no manner help
the respondents.
337
341. Shri Dwivedi has also relied on judgment of this
Court in Union of India and Another Vs. Association of
Unified Telecom Service Providers of India and Others,
(2011) 10 SCC 543. This Court referring to Section 4
of the Telegraph Act laid down following in paragraph
39:
“39. The proviso to Subsection (1) of
Section 4 of the Telegraph Act, however,
enables the Central Government to part with
this exclusive privilege in favour of any
other person by granting a license in his
favour on such conditions and in
consideration of such payments as it thinks
fit. As the Central Government owns the
exclusive privilege of carrying on
telecommunication activities and as the
Central Government alone has the right to
part with this privilege in favour of any
person by granting a license in his favour on
such conditions and in consideration of such
terms as it thinks fit, a license granted
under proviso to Subsection (1) of Section 4
of the Telegraph Act is in the nature of a
contract between the Central Government and
the licensee.”342. There cannot be any dispute to the right of the
Central Government to part with exclusive privilege in
favour of any person by granting license on such a
condition and in consideration of such terms as it
338thinks fit. But mere issuing an instruction to the
licensees to adopt mandatory process of eKYC by
Aadhaar verification in no manner exalt the
instructions or directives as a law. Circular dated
23.03.2017, thus, cannot be held to be a law and
direction to reverification of all existing mobile
subscribers through Aadhaar based eKYC cannot be held
to be backed by law, hence cannot be upheld.
343. There is one more aspect of the matter, which
needs to be looked into. Aadhaar Act has only two
provisions under which Aadhaar can be used, i.e.
Section 7 and Section 57. Present is not a case of
Section 7 since present is not a case of receiving any
subsidy, benefit or service. What Section 57
contemplate is that "use of Aadhaar can be provided by
a law". Words "by a law" used in Section 57 obviously
mean a valid law framed by competent legislation and
other than the Aadhaar Act. No law has been framed by
permitting use of Aadhaar for verification of sim of
existing subscribers. There being no law framed for
such use of Aadhaar, Section 57 is also not attracted.
339344. There are only above two contingencies, where
Aadhaar can be used and circular dated 23.03.2017
being not covered by any of above contingencies,
circular dated 23.03.2017 deserves to be set aside.
Ans.15: Circular dated 23.03.2017 being
unconstitutional is set aside.
Issue No. 16 Whether Aadhaar Act is a Money Bill and
decision of Speaker certifying it as
Money Bill is not subject to Judicial
Review of this Court?345. The Aadhaar Act has been passed by Parliament as
Money Bill. Shri P. Chidambaram, learned senior
counsel appearing for the petitioners contends that
Aadhaar Act is not a Money Bill, it being not covered
by any of the Clauses under Article 110 of the
Constitution of India. He further submits that
decision of the Speaker certifying Aadhaar Bill as
Money Bill being illegal and contrary to the express
constitutional provisions deserves to be interfered
with and such decision of the Speaker is also subject
to Judicial Review by this Court. The word “only”
340used in Article 110 has significance and a Bill, which
does not contain only, the provisions pertaining to
Clause (a) to (f) cannot be regarded as Money Bill.
Respondents cannot fall on Clause (g) to support the
Money Bill, which clause cannot be invoked unless the
provisions of Bill are covered by any of the clauses
from (a) to (f).
346. Shri K.K. Venugopal, learned Attorney General
refuting the above submission submits that Aadhaar
Bill has correctly been passed as Money Bill. He
submits that the certification granted by Speaker that
Aadhaar Bill is a Money Bill has been made final by
virtue of Article 110(3), hence it cannot be
questioned in any Court. The decision of Speaker
certifying the Bill as Money Bill is not subject to
Judicial Review. It is further submitted by learned
Attorney General that even on looking the Aadhaar Bill
on merits, it satisfies the conditions as enumerated
under Article 110(1). He submits that Aadhaar Bill is
clearly referable to Clause(c), Clause(e) and
Clause(g) of Article 110(1). He submits that the
341heart of the Aadhaar Act is Section 7 which is with
regard to payment of subsidies, benefits or services
and for which the expenditure is incurred form the
Consolidated Fund of India. Article 122 also puts an
embargo in questioning validity of any proceedings in
Parliament. Certification of Bill as Money Bill is
matter of Parliamentary procedure hence Article 122
also save the said decision from being questioned in a
Court of Law.
347. Article 110 and Article 122, which falls for
consideration in the present case are as follows:
“110. Definition of "Money Bills".
(1) For the purposes of this Chapter, a Bill
shall be deemed to be a Money Bill if it
contains only provisions dealing with all or
any of the following matters, namely:(a) the imposition, abolition,
remission, alteration or regulation
of any tax;(b) the regulation of the borrowing
of money or the giving of any
guarantee by the Government of India,
or the amendment of the law with
respect to any financial obligations
undertaken or to be undertaken by the
Government of India;(c) the custody of the Consolidated
Fund or the Contingency Fund of
342India, the payment of moneys into or
the withdrawal of moneys from any
such Fund;(d) the appropriation of moneys out
of the Consolidated Fund of India;(e) the declaring of any expenditure
to be expenditure charged on the
Consolidated Fund of India or the
increasing of the amount of any such
expenditure;(f) the receipt of money on account
of the Consolidated Fund of India or
the public account of India or the
custody or issue of such money or the
audit of the accounts of the Union or
of a State; or(g) any matter incidental to any of
the matters specified in subclauses(a) to (f).
(2) A Bill shall not be deemed to be a Money
Bill by reason only that it provides for the
imposition of fines or other pecuniary
penalties, or for the demand or payment of
fees for licences or fees for services
rendered, or by reason that it provides for
the imposition, abolition, remission,
alteration or regulation of any tax by any
local authority or body for local purposes.
(3) If any question arises whether a Bill is
a Money Bill or not, the decision of the
Speaker of the House of the People thereon
shall be final.4) There shall be endorsed on every Money
Bill when it is transmitted to the Council of
States under article 109, and when it is
presented to the President for assent under
article 111, the certificate of the Speaker
of the House of the People signed by him that
it is a Money Bill.343
122. Courts not to inquire into proceedings
of Parliament.(1) The validity of any
proceedings in Parliament shall not be called
in question on the ground of any alleged
irregularity of procedure.(2) No officer or member of Parliament in
whom powers are vested by or under this
Constitution for regulating procedure or the
conduct of business, or for maintaining
order, in Parliament shall be subject to the
jurisdiction of any court in respect of the
exercise by him of those powers.”348. We need to first advert to the submission
pertaining to question as to whether decision of
Speaker certifying the Bill as Money Bill is subject
to Judicial Review of this Court or being related to
only procedure, is immuned from Judicial Review under
Article 122. Article 110(3) gives finality to the
decision of the Speaker of the House of the People on
question as to whether a Bill is Money Bill or not.
The word occurring in subarticle (3) of Article 110
are “shall be final”. Article 122(1) puts an embargo
on questioning the validity of any proceeding in the
Parliament on the ground of any alleged irregularity
or procedure. The Constitution uses different
expressions in different articles like “shall be
344final”, “shall not be questioned”, “shall not be
questioned in any Court of Law” etc.
349. This Court has examined the scope of Judicial
Review in reference to Parliamentary proceedings. A
similar Constitutional provision giving finality to
the decision of the Speaker is contained in Para 6 of
Tenth Schedule where a question whether a person has
become disqualified or not is to be referred to the
decision of the Chairman or the Speaker and his
decision shall be final. Para 6 subclause(1) is
quoted as below:
“6. Decision on questions as to
disqualification on ground of defection.— (1)
If any question arises as to whether a member
of a House has become subject to
disqualification under this Schedule, the
question shall be referred for the decision
of the Chairman or, as the case may be, the
Speaker of such House and his decision shall
be final:Provided that where the question which
has arisen is as to whether the Chairman or
the Speaker of a House has become subject to
such disqualification, the question shall be
referred for the decision of such member of
the House as the House may elect in this
behalf and his decision shall be final.”
345350. The Constitution Bench had occasion to consider
Para 6 in Kihoto Hollohan Vs. Zachillhu and Others,
1992 Supp. (2) SCC 651, Justice M.N. Venkatachaliah,
as he then was elaborately considered the rival
contentions. It was also contended before this Court
that in view of the finality of the decision of the
Speaker in Para 6 of Tenth Schedule, the decision of
the Speaker is beyond Judicial Review. In Para 78,
following has been stated:
“78. These two contentions have certain
overlapping areas between them and admit of
being dealt with together. Paragraph 6(1) of
the Tenth Schedule seeks to impart a
statutory finality to the decision of the
Speaker or the Chairman. The argument is
that, this concept of `finality' by itself,
excludes Courts' jurisdiction. Does the word
"final" render the decision of the Speaker
immune from Judicial Review? It is now well
accepted that a finality clause is not a
legislative magical incantation which has
that effect of telling off Judicial Review.
Statutory finality of a decision presupposes
and is subject to its consonance with the
statute...............”In Para 80 to 85, following has been held:
80. In Durga Shankar Mehta v. Raghuraj
Singh, AIR 1954 SC 520 the order of the
Election Tribunal was made final and
346conclusive by Section 105 of the
Representation of the People Act, 1951. The
contention was that the finality and
conclusiveness clauses barred the
jurisdiction of the Supreme Court under
Article 136. This contention was repelled. It
was observed: (AIR p. 522)
...[B]ut once it is held that it is a
judicial tribunal empowered and
obliged to deal judicially with
disputes arising out of or in
connection with election, the
overriding power of this Court to
grant special leave, in proper cases,
would certainly be attracted and this
power cannot be excluded by any
parliamentary legislation.... But once that Tribunal has made
any determination or adjudication on
the matter, the powers of this Court
to interfere by way of special leave
can always be exercised......... The powers given by Article 136
of the Constitution however are in
the nature of special or residuary
powers which are exercisable outside
the purview of ordinary law, in cases
where the needs of justice demand
interference by the Supreme Court of
the land....Section 105 of the
Representation of the People Act
certainly gives finality to the
decision of the Election Tribunal so
far as that Act is concerned and does
not provide for any further appeal
but that cannot in any way cut down
or effect the overriding powers which
this Court can exercise in the matter
of granting special leave under
347Article 136 of the Constitution.
81. Again, in Union of India v. Jyoti Prakash
Mitter [1971] 3 SCR 483 a similar finality
clause in Article 217(3) of the Constitution
camp up for consideration. This Court said:
(SCC pp.4101, Para32)
...The President acting under Article
217(3) performs a judicial function
of grave importance under the scheme
of our Constitution. He cannot act on
the advice of his Ministers.Notwithstanding the declared finality
of the order of the President the
Court has jurisdiction in appropriate
cases to set aside the order, if it
appears that it was passed on
collateral considerations or the
rules of natural justice were not
observed, or that the President's
judgment was coloured by the advice
or representation made by the
executive or it was founded on no
evidence."82. Referring to the expression "final"
occurring in Article 311(3) of the
Constitution this Court in Union of India v.
Tulsiram Patel, [1985] Supp. 2 SCR 131 held:
(SCC p.507. Para 138)
...The finality given by Clause (3)
of Article 311 to the disciplinary
authority's decision that it was not
reasonably practicable to hold the
inquiry is not binding upon the
court. The court will also examine
the charge of mala fides, if any,
made in the writ petition. In
examining the relevancy of the
reasons, the court will consider the
situation which according to the
disciplinary authority made it come
348to the conclusion that it was not
reasonably practicable to hold the
inquiry. If the court finds that the
reasons are irrelevant, then the
recording of its satisfaction by the
disciplinary authority would be an
abuse of power conferred upon it by
Clause (b)....83. If the intendment is to exclude the
jurisdiction of the superior Courts, the
language would quite obviously have been
different. Even so, where such exclusion is
sought to be effected by an amendment the
further question whether such an amendment
would be destructive of a basic feature of
the Constitution would arise. But comparison
of the language in Article 363(1) would bring
out in contrast the kind of language that may
be necessary to achieve any such purpose.84. In Brundaban Nayak v. Election Commission
of India [1965] 3 SCR 53, in spite of
finality attached by Article 192 to the
decision of the Governor in respect of
disqualification incurred by a member of a
State Legislature subsequent to the election,
the matter was examined by this Court on an
appeal by special leave under Article 136 of
the Constitution against the decision of the
High Court dismissing the writ petition filed
under Article 226 of the Constitution.Similarly in Union of India v. Jyoti Prakash
Mitter [1971] 3 SCR 483, in spite of finality
attached to the order of the President with
regard to the determination of age of a Judge
of the High Court under Article 217(3) of the
Constitution, this Court examined the
legality of the order passed by the President
during the pendency of an appeal filed under
Article 136 of the Constitution.85. There is authority against the
acceptability of the argument that the word
349"final" occurring in Paragraph 6(1) has the
effect of excluding the jurisdiction of the
Courts in Articles 136, 226 and 227.”351. The above Constitution Bench Judgment clearly
support the case of the petitioners that finality
attached to the decision of the Speaker under Article
110(3) does not inhibit the Court in exercising its
Judicial Review. We may also refer to the Constitution
Bench judgment of this Court in Special Reference No.
1 of 1964, AIR 1965 SC 745 where this Court had
occasion to consider Article 212, which is a provision
relating to the legislature of the State para materia
to Article 122. Constitution Bench has held that what
is protected under Article 212 from being questioned
is on the ground of any alleged irregularity or
procedure. The said ground does not apply in case of
illegality of the decision. The next case, which
needs to be considered is again a Constitution Bench
judgment of this Court in Raja Rampal Vs. Hon'ble
Speaker, Lok Sabha and Others, (2007) 3 SCC 184. The
Constitution Bench in the above case had occasion to
350consider the question of issue of Judicial Review of a
decision of Speaker disqualifying from membership of
the Parliament. A submission was raised before the
Court by virtue of Article 122 of the Constitution,
which puts an embargo on questioning any proceeding of
the Parliament, the decision of the Speaker is immuned
from the Judicial Review. The above submission has
been noticed in Para 364 of the judgment in following
words:
“364. The submissions of the learned Counsel
for the Union of India and the learned
Additional Solicitor General seek us to read
a finality clause in the provisions of
Article 122(1) in so far as parliamentary
proceedings are concerned. On the subject of
finality clauses and their effect on power of
judicial review, a number of cases have been
referred that may be taken note of at this
stage. ”352. In Paras 376, 377, 384 and 386 following has been
held:
“376. In our considered view, the principle
that is to be taken note of in the
aforementioned series of cases is that
notwithstanding the existence of finality
clauses, this Court exercised its
jurisdiction of judicial review whenever and
351wherever breach of fundamental rights was
alleged. The President of India while
determining the question of age of a Judge of
a High Court under Article 217(3), or the
President of India (or the Governor, as the
case may be) while taking a decision under
Article 311(3) to dispense with the
ordinarily mandatory inquiry before dismissal
or removal of a civil servant, or for that
matter the Speaker (or the Chairman, as the
case may be) deciding the question of
disqualification under Para 6 of the Tenth
Schedule may be acting as authorities
entrusted with such jurisdiction under the
constitutional provisions. Yet, the manner in
which they exercised the said jurisdiction is
not wholly beyond the judicial scrutiny. In
the case of the Speaker exercising
jurisdiction under the Tenth Schedule, the
proceedings before him are declared by Para
6(2) of the Tenth Schedule to be proceedings
in Parliament within the meaning of Article122. Yet, the said jurisdiction was not
accepted as nonjustifiable. In this view, we
are unable to subscribe to the proposition
that there is absolute immunity available to
the Parliamentary proceedings relating to
Article 105(3). It is a different matter as
to what parameters, if any, should regulate
or control the judicial scrutiny of such
proceedings.377. In U.P. Assembly case (Special Reference
No.1 of 1964), AIR 1965 SC 745, the issue was
authoritatively settled by this Court, and it
was held, at SCR pp. 45556, as under: (AIR
p.768, para 62)
“Article 212(1) seems to make it
possible for a citizen to call in
question in the appropriate court of
law the validity of any proceedings
352inside the legislative chamber if
his case is that the said
proceedings suffer not from mere
irregularity of procedure, but from
an illegality. If the impugned
procedure is illegal and
unconstitutional, it would be open to
be scrutinized in a court of law,
though such scrutiny is prohibited if
the complaint against the procedure
is no more than this that the
procedure was irregular.”
(Emphasis supplied)384. The prohibition contained in Article
122(1) does not provide immunity in cases of
illegalities. In this context, reference may
also be made to Sarojini Ramaswami v. Union
of India, (1992) 4 SCC 506. The case mainly
pertained to Article 124(4) read with the
Judges (Inquiry) Act, 1968. While dealing,
inter alia, with the overriding effect of the
rules made under Article 124(5) over the
rules made under Article 118, this Court at
pp. 18788 made the following observations:
(SCC p. 572, para 94)
“94. We have already indicated the
constitutional scheme in India and
the true import of clauses(4) and (5)
of Article 124 read with the law
enacted under Article 124(5), namely,
the Judges (Inquiry) Act, 1968 and
the Judges (Inquiry) Rules, 1969,
which, inter alia contemplate the
provision for an opportunity to the
Judge concerned to show cause against
the finding of 'guilty' in the report
before Parliament takes it up for
consideration along with the motion
for his removal. Along with the
decision in U.P. Assembly Case
353(Special Reference No. 1 of 1964) has
to be read the declaration made in
SubCommittee on Judicial
Accountability, (1991) 4 SCC 699
that 'a law made under Article 124(5)
will override the rules made under
Article 118 and shall be binding on
both the Houses of Parliament. A
violation of such a law would
constitute illegality and could not
be immune from judicial scrutiny
under Article 122(1).' The scope of
permissible challenge by the Judge
concerned to the order of removal
made by the President under Article
124(4) in the judicial review
available after making of the order
of removal by the President will be
determined on these considerations.”
(Emphasis supplied)386. Article 122(1) thus must be found to
contemplate the twin test of legality and
constitutionality for any proceedings within
the four walls of Parliament. The fact that
the U.P. Assembly case (Special Reference
No.1 of 1964) dealt with the exercise of the
power of the House beyond its four walls does
not affect this view which explicitly
interpreted a constitutional provision
dealing specifically with the extent of
judicial review of the internal proceedings
of the legislative body. In this view,
Article 122(1) displaces the English doctrine
of exclusive cognizance of internal
proceedings of the House rendering irrelevant
the case law that emanated from courts in
that jurisdiction. Any attempt to read a
limitation into Article 122 so as to restrict
the court's jurisdiction to examination of
the Parliament's procedure in case of
unconstitutionality, as opposed to illegality
354would amount to doing violence to the
constitutional text. Applying the principle
of "expressio unius est exclusio alterius"
(whatever has not been included has by
implication been excluded), it is plain and
clear that prohibition against examination on
the touchstone of "irregularity of procedure"does not make taboo judicial review on
findings of illegality or
unconstitutionality.”353. The above case is a clear authority for the
proposition that Article 122 does not provide for
immunity in case of illegality. What is protected is
only challenge on the ground of any irregularity or
procedure. The immunity from calling in question the
Parliamentary decision on the ground of violation of
procedure as has been provided in the Constitution is
in recognition of the principles that Parliament has
privilege regarding procedure and any challenge on the
ground of violation of any procedure is not
permissible.
354. Shri K.K. Venugopal relied on Two Judgments of
this Court in support of his submission namely, Mohd.
Saeed Siddiqui Vs. State of Uttar Pradesh and Another,
355(2014) 11 SCC 415 and Yogendra Kumar Jaiswal and
Others Vs. State of Bihar and Others, (2016) 3 SCC
183. He submits that in both the decisions, this
Court while dealing with the question of challenge to
Money Bill has clearly held that the decision of
Speaker certifying a Bill as Money Bill is final and
cannot be questioned.
355. We need to consider the above decisions in
detail. Mohd. Saeed Siddiqui (supra) was a judgment
delivered by a Three Judge Bench of this Court. U.P.
Lokayukta Act and U.P. Lokayukta (Amendment) Act, 2012
was subject matter of challenge. One of the
submissions in that regard has been noted in Para 12,
which is to the following effect:
“12. It was further submitted by Mr.
Venugopal that the Amendment Act was not even
passed by the State Legislature in accordance
with the provisions of the Constitution of
India and is, thus, a mere scrap of paper in
the eye of the law. The Bill in question was
presented as a Money Bill when, on the face
of it, it could never be called as a Money
Bill as defined in Articles 199(1) and 199(2)
of the Constitution of India. Since the
procedure for an Ordinary Bill was not
followed and the assent of the Governor was
obtained to an inchoate and incomplete Bill
356which had not even gone through the mandatory
requirements under the Constitution of India,
the entire action was unconstitutional and
violative of Article 200 of the Constitution
of India.”356. This Court after noticing Articles 199 and 212,
which are pari materia to Articles 109 and 122 stated
that proceeding in support of legislature cannot be
called into question on the ground that they have not
been carried on in accordance with the rules of
business. This Court considered the issues from
Paragraphs 34 to 38, which is to the following
effect:
“34. The above provisions make it clear that
the finality of the decision of the Speaker
and the proceedings of the State Legislature
being important privilege of the State
Legislature, viz., freedom of speech, debate
and proceedings are not to be inquired by the
Courts. The "proceeding of the legislature"
includes everything said or done in either
House in the transaction of the Parliamentary
business, which in the present case is
enactment of the Amendment Act. Further,
Article 212 precludes the courts from
interfering with the presentation of a Bill
for assent to the Governor on the ground of
noncompliance with the procedure for passing
Bills, or from otherwise questioning the
Bills passed by the House. To put it clear,
proceedings inside the legislature cannot be
called into question on the ground that they
357have not been carried on in accordance with
the Rules of Business. This is also evident
from Article 194 which speaks about the
powers, privileges of the Houses of the
Legislature and of the members and committees
thereof.35. We have already quoted Article 199. In
terms of Article 199(3), the decision of the
Speaker of the Legislative Assembly that the
Bill in question was a Money Bill is final
and the said decision cannot be disputed nor
can the procedure of the State Legislature be
questioned by virtue of Article 212. We are
conscious of the fact that in the decision of
this Court in Raja Ram Pal v. Lok Sabha
(2007) 3 SCC 184, it has been held that the
proceedings which may be tainted on account
of substantive or gross irregularity or
unconstitutionality are not protected from
judicial scrutiny.36. Even if it is established that there was
some infirmity in the procedure in the
enactment of the Amendment Act, in terms of
Article 255 of the Constitution the matters
of procedures do not render invalid an Act to
which assent has been given by the President
or the Governor, as the case may be.37. In M.S.M. Sharma v. Shree Krishna Sinha
AIR 1960 SC 1186 and Mangalore Ganesh Beedi
Works v. State of Mysore, AIR 1963 SC 589,
the Constitution Benches of this Court held
that:(i) the validity of an Act cannot be
challenged on the ground that it
offends Articles 197 to 199 and the
procedure laid down in Article 202;(ii) Article 212 prohibits the
validity of any proceedings in a
Legislature of a State from being
called in question on the ground of
358any alleged irregularity of
procedure; and(iii) Article 255 lays down that the
requirements as to recommendation and
previous sanction are to be regarded
as a matter of procedure only.It is further held that the validity of the
proceedings inside the legislature of a State
cannot be called in question on the
allegation that the procedure laid down by
the law has not been strictly followed and
that no Court can go into those questions
which are within the special jurisdiction of
the legislature itself, which has the power
to conduct its own business.38. Besides, the question whether a Bill is a
Money Bill or not can be raised only in the
State Legislative Assembly by a member
thereof when the Bill is pending in the State
Legislature and before it becomes an Act. It
is brought to our notice that in the instant
case no such question was ever raised by
anyone. ”357. This Court came to the conclusion that question
pertaining to the procedure in the House could not
have been questioned by virtue of Article 212.
Another judgment, which has been relied by learned
Attorney General is judgment of this Court in Yogendra
Kumar Jaiswal (supra). The above judgment was
rendered by Two Judge Bench. This Court in the above
case examined the question whether introduction of
359Orissa Special Courts Act, 2006 as a Money Bill could
be called in question in a Court. This Court
considered the issue in Paragraphs 38 to 43, which are
to the following effect:
“38. First, we shall take up the issue
pertaining to the introduction of the Bill as
a Money bill in the State Legislature. Mr.
Vinoo Bhagat, learned Counsel appearing for
some of the appellants, has laid emphasis on
the said aspect. Article 199 of the
Constitution, defines “Money Bills”. For our
present purpose, Clause (3) of Article 199
being relevant is reproduced below:“199.(3). If any question arises
whether a Bill introduced in the
legislature of a State which has a
Legislative Council is a Money Bill
or not, the decision of the Speaker
of the Legislative Assembly of such
State thereon shall be final.We have extracted the same as we will be
referring to the authorities as regards
interpretation of the said clause.39. Placing reliance on Article 199, the
learned Counsel would submit that the present
Act which was introduced as a money bill has
remotely any connection with the concept of
money bill. It is urged by him that the State
has made a Sisyphean endeavour to establish
some connection. The High Court to repel the
challenge had placed reliance upon Article
212 which stipulates that the validity of any
proceedings in the Legislature of a State
shall not be called in question on the ground
of any alleged irregularity of procedure.40. The learned Counsel for the appellants
360has drawn inspiration from a passage from
Powers, Privileges and Immunities of State
Legislatures. In re, Special Reference No. 1
of 1964 AIR 1965 SC 745, wherein it has been
held that Article 212(1) lays down that the
validity of any proceedings in the
legislature of a State shall not be called in
question on the ground of any alleged
irregularity of procedure and Article 212(2)
confers immunity on the officers and members
of the legislature in whom powers are vested
by or under the Constitution for regulating
procedure or the conduct of business, or for
maintaining order, in the legislature from
being subject to the jurisdiction of any
court in respect of the exercise by him of
those powers. The Court opined that Article
212(1) seems to make it possible for a
citizen to call in question in the
appropriate court of law the validity of any
proceedings inside the Legislative Chamber if
his case is that the said proceedings suffer
not from mere irregularity of procedure, but
from an illegality. If the impugned procedure
is illegal and unconstitutional, it would be
open to be scrutinised in a court of law,
though such scrutiny is prohibited if the
complaint against the procedure is not more
than that the procedure was irregular. Thus,
the said authority has made a distinction
between illegality of procedure and
irregularity of procedure.41. Our attention has also been drawn to
certain paragraphs from the Constitution
Bench decision in Raja Ram Pal v. Lok Sabha
(2007) 3 SCC 184. In the said case, in paras
360 and 366, it has been held thus: (SCC pp.347 350)
“360. The question of extent of
judicial review of parliamentary
matters has to be resolved with
361reference to the provision contained
in Article 122(1) that corresponds to
Article 212 referred to in M.S.M.Sharma v. Shree Krishna Sinha AIR
1960 SC 1186 [Pandit Sharma (2)]. On
a plain reading, Article 122(1)
prohibits "the validity of any
proceedings in Parliament” from being
'called in question' in a court
merely on the ground of "irregularity
of procedure". In other words, the
procedural irregularities cannot be
used by the court to undo or vitiate
what happens within the four walls of
the legislature. But then,
"procedural irregularity" stands in
stark contrast to "substantive
illegality' which cannot be found
included in the former. We are of the
considered view that this specific
provision with regard to check on the
role of the judicial organ visàvis
proceedings in Parliament uses
language which is neither vague nor
ambiguous and, therefore, must be
treated as the constitutional mandate
on the subject, rendering unnecessary
search for an answer elsewhere or
invocation of principles of
harmonious construction.* * *
366. The touchstone upon which
parliamentary actions within the four
walls of the legislature were
examined was both the constitutional
as well as substantive law. The
proceedings which may be tainted on
account of substantive illegality or
unconstitutionality, as opposed to
those suffering from mere
irregularity thus cannot be held
362protected from judicial scrutiny by
Article 122(1) inasmuch as the broad
principle laid down in Bradlaugh
(1884) LR 12 QBD 271 : 53 LJQB 290 :50 LT 620 (DC), acknowledging
exclusive cognizance of the
legislature in England has no
application to the system of
governance provided by our
Constitution wherein no organ is
sovereign and each organ is amenable
to constitutional checks and
controls, in which scheme of things,
this Court is entrusted with the duty
to be watchdog of and guarantor of
the Constitution.”42. In this regard, we may profitably refer
to the authority in Mohd. Saeed Siddiqui v.State of U.P. (2014) 11 SCC 415, wherein a
threeJudge Bench while dealing with such a
challenge, held that Article 212 precludes
the courts from interfering with the
presentation of a Bill for assent to the
Governor on the ground of noncompliance with
the procedure for passing Bills, or from
otherwise questioning the Bills passed by the
House, for proceedings inside the legislature
cannot be called into question on the ground
that they have not been carried on in
accordance with the Rules of Business.Thereafter, the Court referring to Article
199(3) ruled that the decision of the Speaker
of the Legislative Assembly that the Bill in
question was a Money Bill is final and the
said decision cannot be disputed nor can the
procedure of the State Legislature be
questioned by virtue of Article 212. The
Court took note of the decision in Raja Ram
Pal (supra) wherein it has been held that the
proceedings which may be tainted on account
of substantive or gross irregularity or
unconstitutionality are not protected from
363judicial scrutiny. Eventually, the Court
repelled the challenge.43. In our considered opinion, the
authorities cited by the learned Counsel for
the appellants do not render much assistance,
for the introduction of a Bill, as has been
held in Mohd. Saeed Siddiqui (supra), comes
within the concept of "irregularity" and it
does come with the realm of substantiality.
What has been held in the Special Reference
No. 1 of 1964 (supra) has to be appositely
understood. The factual matrix therein was
totally different than the case at hand as we
find that the present controversy is wholly
covered by the pronouncement in Mohd. Saeed
Siddiqui (supra) and hence, we unhesitatingly
hold that there is no merit in the submission
so assiduously urged by the learned Counsel
for the appellants.”358. The consideration in the above case
indicate that this Court has merely relied on judgment
of Three Judge Bench in Mohd. Saeed Siddiqui (supra).
The Court based its decision on finality attached to
the decision of the Speaker in Article 199(3) as well
as bar on challenge of proceeding of the legislature
on an irregularity procedure as contained in Article
212. The question is, where a Speaker certify a Bill
as a Money Bill and it is introduced and passed as a
Money Bill, this only a question of procedure or not?
Article 107 contains provisions as to introduction of
364passing of bills. Article 107(2) state that subject
to the provisions of Articles 108 and 109, a Bill
shall not be deemed to have been passed by the Houses
of Parliament unless it has been agreed to by both
Houses of Parliament. However, the requirement of
passing a Bill by both the Houses is not applicable in
case of Money Bills. Article 110 defines as to what is
the Money Bill. A Money Bill is constitutionally
defined and a Bill shall be a Money Bill only if it is
covered by Article 110(1). A Bill, which does not
fulfill the conditions as enumerated in Article 110(1)
and it is certified as Money Bill, whether the
Constitutional conditions enumerated in Article 110(1)
shall be overridden only by certificate of Speaker?
359. We have noticed the Constitution Bench Judgment in
Kihoto Hollohan (supra) and Raja Ram Pal (supra) that
finality of the decision of the Speaker is not immuned
from Judicial Review. All Bills are required to be
passed by both Houses of Parliament. Exception is
given in case of Money Bills and in the case of joint
sitting of both houses. In event, we accept the
365submission of learned Attorney General that
certification by Speaker is only a matter of procedure
and cannot be questioned by virtue of Article 122(1),
any Bill, which does not fulfill the essential
constitutional condition under Article 110 can be
certified as Money Bill byepassing the Upper House.
There is a clear difference between the subject
“irregularity of procedure” and “substantive
illegality”. When a Bill does not fulfill the
essential constitutional condition under Article
110(1), the said requirement cannot be said to be
evaporated only on certification by Speaker.
Accepting the submission that certification immunes
the challenge on the ground of not fulfilling the
constitutional condition, Court will be permitting
constitutional provisions to be ignored and bye
passed. We, thus, are of the view that decision of
Speaker certifying the Bill as Money Bill is not only
a matter of procedure and in event, any illegality has
occurred in the decision and the decision is clearly
in breach of the constitutional provisions, the
366decision is subject to Judicial Review. We are,
therefore, of the view that the Three Judge Bench
Judgment of this Court in Mohd. Saeed Siddiqui
(supra) and Two Judge Bench judgment of this Court in
Yogendra Kumar Jaiswal (supra) does not lay down the
correct law. We, thus, conclude that the decision of
the Speaker certifying the Aadhaar Bill as Money Bill
is not immuned from Judicial Review.
360. We having held that the decision of Speaker
certifying the Aadhaar Bill as a Money Bill is open to
Judicial Review. We now proceed to examine as to
whether Speaker's decision certifying the Aadhaar Bill
as Money Bill contravenes any of the Constitutional
provisions, i.e., Whether the decision is vitiated by
any Constitutional Illegality? For determining the
main issue, which need to be answered is as to whether
Aadhaar Bill is covered by any of Clauses (a) to (f)
of Article 110(1). That Clause(g) shall be applicable
only when any of Clauses (a) to (f) are attracted.
Clause (g) which contemplate that any matter
incidental to any of the matters specified in sub
367clauses (a) to (f), can be a provision in a Bill
presupposes that main provisions have to fall in any
of the Clauses (a) to (f). The heart of the Aadhaar
Act is Section 7, which is to the following effect:
“7. Proof of Aadhaar number necessary for
receipt of certain subsidies, benefits and
services, etc. The Central Government or, as
the case may be, the State Government may,
for the 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 Aadhaar number or in the case
of an individual to whom no Aadhaar number
has been assigned, such individual makes an
application for enrolment:Provided that if an Aadhaar 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.”361. 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, has been provided by Section 7, i.e.
undergoing of an individual to an authentication. The
Preamble of the Act as well as objects and reasons as
368noticed above also indicate that the Act has been
enacted to provide for, as a good governance,
efficient, transparent, and targeted delivery of
subsidies, benefits and services, the expenditure for
which is incurred from the Consolidated Fund of India,
to individuals residing in India through assigning of
unique identity numbers to such individuals and for
matters connected therewith or incidental thereto.
Thus, the theme of the Act or main purpose and object
of the Act is to bring in place efficient, transparent
and targeted deliveries of subsidies, benefits and
services, which expenditure is out from the
Consolidated Fund of India. Thus, the above
provisions of the Act is clearly covered by Article
110(1)(c) and (e).
362. Shri P. Chidambaram, learned counsel for
petitioners has laid much emphasis on the word “only“
as occurring in Article 110(1). The word “only” used
in Article 110(1) has purpose and meaning. The
legislative intendment was that main and substantive
provisions should be only any or all of the clauses
369from (a) to (f). In event, the main and substantive
provision of the Act are not covered by Clauses (a) to
(f), the said Bill cannot be said to be a Money Bill.
It will not be out of place to mention here that in
Constituent Assembly, an amendment was moved for
deletion of word “only” on 20.05.1949, Hon'ble Shri
Ghanshyam Singh Gupta moved the amendment in Draft
Article 90. It is useful to extract the above debate,
which is to the following effect:
The Honourable Shri Ghanshyam Singh Gupta
(C.P. Berar: General): Sir, I beg to move:"That in clause (1) of article 90, the word
`only' be deleted."This article is a prototype of Section 37 of
the Government of India Act which says that a
Bill or amendment providing for imposing or
increasing a tax or borrowing money, etc.
shall not be introduced or moved except on
the recommendation of the GovernorGeneral.
This means that the whole Bill need not be a
money Bill: it may contain other provisions,
but if there is any provision about taxation
or borrowing, etc. It will come under this
Section37, and the recommendation of the
GovernorGeneral is necessary. Now article 90
says that a Bill shall be deemed to be a
money Bill if it contains only provisions
dealing with the imposition, regulation,
etc., of any tax or the borrowing of money,
etc. This can mean that if there is a Bill
which has other provisions and also a
370provision about taxation or borrowing etc.,
it will not become a money Bill. If that is
the intention I have nothing to say; but that
if that is not the intention I must say the
word "only" is dangerous, because if the Bill
does all these things and at the same time
does something else also it will not be a
money Bill. I do not know what the intention
of the Drafting Committee is but I think this
aspect of the article should be borne in
mind.”363. After discussion, Mr. Naziruddin Ahmad also
suggested that the position of the word “only” in
connection with Amendment No.1669 should be specially
considered. It is a word which is absolutely
misplaced. On that day, the consideration was
deferred and again in the debate on 06.06.1949,
Constituent Assembly took up the discussion. The
President of the Constituent Assembly placed the
amendment for vote on 08.06.1949, which amendment was
negativated. Thus, use of word “only” in Article
110(1) has its purpose, which is a clear restriction
for a Bill to be certified as a Money Bill.
364. Other provisions of the Act can be said to be
incidental to the above matter. The architecture of
371the Aadhaar Act veer round the Government's
constitutional obligation to provide for subsidies,
benefits and services to the individuals, who are
entitled for such subsidies, benefits and services.
Section 24 contemplates the appropriation made by
Parliament by law for grant of sums of money for the
purposes of Aadhaar Act. The disbursement of
subsidies, benefits and services from the Consolidated
Fund of India is in substance, the main object of the
Act for which Aadhaar architecture has been envisaged
and other provisions are only to give effect to the
above main theme of the Act. Other provisions of the
Act are only incidental provisions to main provision.
Section 57 on which much attack has been made by the
learned counsel for the petitioners that it cannot be
covered by any of the provisions from (a) to (f) of
Article 110(!). Suffice it to say that Section 57 is
a provision which clarifies that nothing contained in
Aadhaar Act shall prevent the use of Aadhaar number
for establishing the identity of an individual for any
purpose, whether by the State or any body corporate or
372person, pursuant to any law, for the time being in
force, or any contract to this effect. The
applicability of the provision of Section 57 comes
into play when Aadhaar Number is allocated to an
individual after completing the process under the Act.
Section 57 is also a incidental provision covered by
subclause(g) of Article 110(1). Section 57 is a
limitation imposed under the Act on the use of Aadhaar
Number by State or any body corporate or any private
party. We, thus, are of the view that Aadhaar Bill
has rightly been certified as the Money Bill by the
Speaker, which decision does not violate any
constitutional provision, hence does not call for any
interference in this proceeding. Issue No. 16 is
answered in the following manner:
Ans.16: Aadhaar Act has been rightly passed as Money
Bill. The decision of Speaker certifying the
Aadhaar Bill, 2016 as Money Bill is not
immuned from Judicial Review.
373Issue No.17 Whether Section 139AA of the Income Tax
Act, 1961 is unconstitutional in view of
the Privacy judgment in Puttaswamy case?
365. Section 139AA was challenged by a bunch of writ
petitions, which were decided by this Court in Binoy
Viswam Vs. Union of India and Others, (2017) 7 SCC 59.
The writ petitions were disposed of upholding the
vires of Section 139AA. Para 136 of the judgment
contains operative portion, which is to the following
effect:
“136. Subject to the aforesaid, these writ
petitions are disposed of in the following
manner:136.1 We hold that the Parliament was fully
competent to enact Section 139AA of the Act
and its authority to make this law was not
diluted by the orders of this Court.136.2. We do not find any conflict between
the provisions of the Aadhaar Act and Section
139AA of the Income Tax Act inasmuch as when
interpreted harmoniously, they operate in
distinct fields.136.3. Section 139AA of the Act is not
discriminatory nor it offends equality Clause
enshrined in Article 14 of the Constitution.136.4. Section 139AA is also not violative
of Article 19(1)(g) of the Constitution
insofar as it mandates giving of Aadhaar
374enrollment number for applying for PAN cards,
in the income tax returns or notified Aadhaar
enrollment number to the designated
authorities. Further, the proviso to Sub
section (2) thereof has to be read down to
mean that it would operate only
prospectively.136.5 The validity of the provision upheld
in the aforesaid manner is subject to passing
the muster of Article 21 of the Constitution,
which is the issue before the Constitution
Bench in Writ Petition (Civil) No. 494 of
2012 and other connected matters. Till then,
there shall remain a partial stay on the
operation of the proviso to Subsection (2)
of Section 139AA of the Act, as described
above. No cost.”366. As per the above judgment, the validity of the
provisions of Section139AA was upheld subject to
passing the muster of Article 21 of the Constitution,
which was the issue pending before the Constitution
Bench in Writ Petition (C) No. 494 of 2012 and other
connected matters. The Constitution Bench Judgment in
Puttaswamy was delivered on 24.08.2017. Right of
Privacy has been held to be fundamental right, any
restriction on such fundamental right has been held to
be valid when it passes the muster of threefold test
as laid down there. In the lead judgment of Dr.
375Justice D.Y. Chandrachud, threefold test are:
(a) The existence of law;
(b) A legitimate State interest and
(c) such law should pass the test of
proportionality.
367. Dr. Justice Chandrachud has delivered the
judgment for himself and three other Hon'ble Judges,
Justice Sanjay Kishan Kaul in paragraph 639 has upheld
the test of proportionality. As a result, atleast
five out of nine Judges requires the proportionality
test to be applied. In addition to tests propounded
by a Constitution Bench in Puttaswamy case, an
additional test as propounded by a Five Judges
Constitution Bench of this Court in Shayara Bano Vs.
Union of India, (2017) 9 SCC 1, Justice R.F. Nariman
has laid down a test of “manifest arbitrariness”.
Reading the Nine Judge Bench decision in Puttaswamy
case and Five Judge Bench decision in Shayara Bano's
case, the Petitioner can succeed to the challenge to
Section 139AA only if they successfully demonstrate
the said provision to be violative of Right to Privacy
376on the basis of the following tests:
(i) Absence of law;
(ii) Absence of Legitimate State Interest;
(iii) The provision being hit by lack of
proportionality.
(iv) The provision being manifestly arbitrary,
which can be traced to Article 14. [Thetest to determine “manifest arbitrariness”
is to decide whether the enactment is
drastically unreasonable and / or
capricious, irrational or without adequate
determining principle”]368. The learned Attorney General relies on following
interest, which according to him are safeguarded by
Section 139AA to satisfy the legitimate State
interest:
a. To prevent income tax evasion by
requiring, through an amendment to the
Income Tax Act, that the Aadhaar number
be linked with the PAN; and
b. Prevention, accumulation, circulation and
use of black money and money laundering
by imposing a requirement by law for
linking Aadhaar for opening bank
accounts;c. To prevent terrorism and protect national
377security and prevention of crime by
requiring that Aadhaar number be linked
to SIM cards for mobile phones.
369. Binoy Viswam has examined Section 139AA on the
Principle of Doctrine of Proportionality in Paragraphs
123 to 125:
“123. Keeping in view the aforesaid
parameters and principles in mind, we proceed
to discuss as to whether the “restrictions”
which would result in terms of the proviso to
subsection (2) of Section 139AA of the Act
are reasonable or not.124. Let us revisit the objectives of
Aadhaar, and in the process, that of Section
139AA of the Act in particular.125. By making use of the technology, a
method is sought to be devised, in the form
of Aadhaar, whereby identity of a person is
ascertained in a flawless manner without
giving any leeway to any individual to resort
to dubious practices of showing multiple
identities or fictitious identities. That is
why it is given the nomenclature “unique
identity”. It is aimed at securing advantages
on different levels some of which are
described, in brief, below:125.1. In the first instance, as a welfare
and democratic State, it becomes the duty of
any responsible Government to come out with
welfare schemes for the upliftment of
povertystricken and marginalised sections of
the society. This is even the ethos of Indian
378Constitution which casts a duty on the State,
in the form of “directive principles of State
policy”, to take adequate and effective steps
for betterment of such underprivileged
classes. State is bound to take adequate
measures to provide education, health care,
employment and even cultural opportunities
and social standing to these deprived and
underprivileged classes. It is not that
Government has not taken steps in this
direction from time to time. At the same
time, however, harsh reality is that benefits
of these schemes have not reached those
persons for whom that are actually meant.125.1.1. India has achieved significant
economic growth since Independence. In
particular, rapid economic growth has been
achieved in the last 25 years, after the
country adopted the policy of liberalisation
and entered the era of, what is known as,
globalisation. Economic growth in the last
decade has been phenomenal and for many
years, the Indian economy grew at highest
rate in the world. At the same time, it is
also a fact that in spite of significant
political and economic success which has
proved to be sound and sustainable, the
benefits thereof have not percolated down to
the poor and the poorest. In fact, such
benefits are reaped primarily by rich and
upper middle classes, resulting into widening
the gap between the rich and the poor.125.1.2. Jean Dreze and Amartya Sen pithily
narrate the position as under:“Since India’s recent record of fast
economic growth is often celebrated,
with good reason, it is extremely
important to point to the fact that the
379societal reach of economic progress in
India has been remarkably limited. It
is not only that the income
distribution has been getting more
unequal in recent years (a
characteristic that India shares with
China), but also that the rapid rise in
real wages in China from which the
working classes have benefited greatly
is not matched at all by India’s
relatively stagnant real wages. No less
importantly, the public revenue
generated by rapid economic growth
has not been used to expand the social
and physical infrastructure in a
determined and wellplanned way (in
this India is left far behind by
China). There is also a continued lack
of essential social services (from
schooling and health care to the
provision of safe water and drainage)
for a huge part of the population. As
we will presently discuss, while India
has been overtaking other countries in
the progress of its real income, it has
been overtaken in terms of social
indicators by many of these countries,
even within the region of South Asia
itself (we go into this question more
fully in Chapter 3, ‘India in
Comparative Perspective’).To point to just one contrast, even
though India has significantly caught
up with China in terms of GDP growth,
its progress has been very much slower
than China’s in indicators such as
longevity, literacy, child
undernourishment and maternal
mortality. In South Asia itself, the
much poorer economy of Bangladesh has
caught up with and overtaken India in
380terms of many social indicators
(including life expectancy,
immunisation of children, infant
mortality, child undernourishment and
girls’ schooling). Even Nepal has been
catching up, to the extent that it now
has many social indicators similar to
India’s, in spite of its per capita GDP
being just about one third. Whereas
twenty years ago India generally had
the second best social indicators among
the six South Asian countries (India,
Pakistan, Bangladesh, Sri Lanka, Nepal
and Bhutan), it now looks second worst
(ahead only of problemridden
Pakistan). India has been climbing up
the ladder of per capita income while
slipping down the slope of social
indicators.”125.1.3. It is in this context that not only
sustainable development is needed which takes
care of integrating growth and development,
thereby ensuring that the benefit of economic
growth is reaped by every citizen of this
country, it also becomes the duty of the
Government in a welfare State to come out
with various welfare schemes which not only
take care of immediate needs of the deprived
class but also ensure that adequate
opportunities are provided to such persons to
enable them to make their lives better,
economically as well as socially. As
mentioned above, various welfare schemes are,
in fact, devised and floated from time to
time by the Government, keeping aside
substantial amount of money earmarked for
spending on socially and economically
backward classes. However, for various
reasons including corruption, actual benefit
does not reach those who are supposed to
receive such benefits. One of the main
381reasons is failure to identify these persons
for lack of means by which identity could be
established of such genuine needy class.Resultantly, lots of ghosts and duplicate
beneficiaries are able to take undue and
impermissible benefits. A former Prime
Minister of this country has gone on record
to say that out of one rupee spent by the
Government for welfare of the downtrodden,
only 15 paisa thereof actually reaches those
persons for whom it is meant. It cannot be
doubted that with UID/Aadhaar much of the
malaise in this field can be taken care of.125.2. Menace of corruption and black money
has reached alarming proportion in this
country. It is eating into the economic
progress which the country is otherwise
achieving. It is not necessary to go into the
various reasons for this menace. However, it
would be pertinent to comment that even as
per the observations of the Special
Investigation Team (SIT) on black money
headed by Justice M.B. Shah, one of the
reasons is that persons have the option to
quote their PAN or UID or passport number or
driving licence or any other proof of
identity while entering into
financial/business transactions. Because of
this multiple methods of giving proofs of
identity, there is no mechanism/system at
present to collect the data available with
each of the independent proofs of ID. For
this reason, even SIT suggested that these
databases be interconnected. To the same
effect is the recommendation of the Committee
headed by Chairman, CBDT on measures to
tackle black money in India and abroad which
also discusses the problem of money
laundering being done to evade taxes under
the garb of shell companies by the persons
who hold multiple bogus PAN numbers under
382different names or variations of their names.
That can be possible if one uniform proof of
identity, namely, UID is adopted. It may go a
long way to check and minimise the said
malaise.125.3. Thirdly, Aadhaar or UID, which has
come to be known as the most advanced and
sophisticated infrastructure, may facilitate
lawenforcement agencies to take care of
problem of terrorism to some extent and may
also be helpful in checking the crime and
also help investigating agencies in cracking
the crimes. No doubt, going by the aforesaid,
and may be some other similarly valid
considerations, it is the intention of the
Government to give fillip to Aadhaar movement
and encourage the people of this country to
enrol themselves under the Aadhaar Scheme.”370. In Paragraphs 122 to 125 of Binoy Viswam, it has
also been observed that the measures taken may go a
long way to check and minimise the malaise of black
money.
371. Dr. Justice D.Y. Chandrachud in Puttaswamy case
in Paragraph 311 has stated:
“311. …......Prevention and investigation of
crime and protection of the revenue are among
the legitimate aims of the State. Digital
platforms are a vital tool of ensuring good
governance in a social welfare State.Information technology – legitimately
deployed is a powerful enabler in the spread
of innovation and knowledge.”
383372. In Puttaswamy case, Justice Sanjay Kishan Kaul
has noted the European Union General Data Protection
Regulation and observed that restrictions on the right
to privacy may be justifiable on the ground of
regulation of taxes and financial institutions. In
Paragraph 640, Justice Kaul has held:
“640. It would be useful to turn to the
European Union Regulation of 2016.Restrictions of the right to privacy may be
justifiable in the following circumstances
subject to the principle of proportionality:(a) Other fundamental rights: The
right to privacy must be considered in
relation to its function in society and
be balanced against other fundamental
rights.(b) Legitimate national security
interest.(c) Public interest including
scientific or historical research
purposes or statistical purposes.(d) Criminal offences: The need of
the competent authorities for
prevention investigation, prosecution
of criminal offences including
safeguards against threat to public
security;(e) The unidentifiable data: The
384information does not relate to
identified or identifiable natural
person but remains anonymous. The
European Union Regulation of 2016
refers to “pseudonymisation” which
means the processing of personal data
in such a manner that the personal data
can no longer be attributed to a
specific data subject without the use
of additional information, provided
that such additional information is
kept separately and is subject to
technical and organisational measures
to ensure that the personal data are
not attributed to an identified or
identifiable natural person;(f) The tax, etc.: The regulatory
framework of tax and working of
financial institutions, markets may
require disclosure of private
information. But then this would not
entitle the disclosure of the
information to all and sundry and there
should be data protection rules
according to the objectives of the
processing. There may however, be
processing which is compatible for the
purposes for which it is initially
collected.”373. Section 139AA thus clearly enacted to fulfill
the legitimate State interest. Section 139A which
came into effect w.e.f. 01.04.1989 provide for
Permanent Account Number (PAN) and the provision also
provided that statutory mandatory provisions as to
385when “every person” shall quote such number (PAN
number) for various purposes as enumerated in Section
139A. Introduction of Section 139AA is an extension
and implication of Section 139A. The introduction of
Section 139AA was for the purpose of eliminating
duplicate PANs from the system with the help of a
robust technology solution.
374. The new Section 139AA in the Income Tax Act
seeks to remove bogus PAN cards by linking with
Aadhaar, expose shell companies and thereby curb the
menace of black money, money laundering and tax
evasion. The fact that the tax base of India is very
narrow and that we are a largely tax noncompliant
society is evident from some of the startling figures
in the budget speech of the Finance Minister. Linking
of PAN with Aadhaar will at least ensure that
duplicate and fake PAN cards which are used for the
purpose of tax evasion will be eliminated and is one
of the many fiscal measures to eliminate black money
from the system.
386
375. The Binoy Viswam has referred to other relevant
rationals for enactment of Section 139AA. Section
139AA also cannot be said to be disproportionate.
The section has been enacted to achieve the legitimate
State aim. Section 139AA is a law framed by
Parliament, which require linking of the Aadhaar with
PAN. The means which are sought to be achieved by
such enactment cannot be said to be disproportionate
in any manner. It has been further submitted that
Section 139AA unfairly attracts only individual
assessees and not other tax paying assessees, who may
also be involved in financial frauds. The above
submission need not detain us since Aadhaar number can
be obtained by the individuals and not by the entities
hence Section139AA can only apply to individuals.
In any event, the legislature cannot be expected to
address all issues relating to a particular evil at
one go. Section 139AA is a required first step to
weed out fake PANs for individuals; it is perfectly
acceptable for the legislature to weed out fake PANs
for other taxpaying entities at a later stage. Such
387a view is also endorsed in judicial decisions. In
Namit Sharma Vs. Union of India, (2013) 1 SCC 745
(per Swatanter Kumar, J.) this Court observed:
“43. The rule of equality or equal protection
does not require that a State must choose
between attacking every aspect of a problem
or not attacking the problem at all, and
particularly with respect to social welfare
programme. So long as the line drawn by the
State is rationally supportable, the courts
will not interpose their judgment as to the
appropriate stopping point.…........”376. Thus, the legislature is within its remit to only
target individual assessees with Section 139AA, and
not every other taxpaying entity. The law does not
have to provide for complete coverage of taxpayers
who may be indulging in financial fraud but may
envisage 'degrees of harm' and act on that basis. In
this context, the Aadhaar number is being mandated for
all individual assessees. This is applicable to
natural persons as well as persons who together
constitute legal persons (e.g. Partners in a
partnership, members of a company etc.) and hence
provides significant coverage to weed out duplicate
PANs and hence reduce the incidence of financial and
388tax frauds through these means. Aadhaar's inclusion
into PAN is meant to curb tax evasion, sham
transactions, entry providers which are rampantly
carried out on account of bogus PANs. Aadhaar's
unique deduplication based on biometric
identification has been hailed as the most
sophisticated system by the World Bank. Inclusion of
Aadhaar into PAN eliminates the inequality between
honest tax payers and noncompliant, dishonest ones
who get away without paying taxes. Inclusion of
Aadhaar into PAN promotes rather than negates
equality. It bolsters equality and is consistent with
Article 14.
377. In result, Section 139AA is fully compliant of
threefold test as laid down in Puttaswamy's case.
Section 139AA, thus does not breach fundamental Right
of Privacy of an individual and Section 139AA cannot
be struck down on that ground.
Ans.17: Section 139AA does not breach fundamental
Right of Privacy as per Privacy Judgment in
Puttaswamy case.
389
Issue No. 18 Whether Aadhaar Act violates the
Interim Orders passed by this Court
in Writ Petition (C) No. 494 of
2012?378. The petitioners submits that this Court has
passed various Interim Orders in Writ Petition (C) No.
494 of 2012 from 23.09.2013 to 15.10.2015. On
23.09.2013, this Court directed “In the meanwhile, no
person should suffer not getting the Aadhaar card
inspite of the fact that some authority had issued a
circular making it mandatory and when any person
applies to get the Aadhaar Card voluntarily, it may be
checked whether that person is entitled for it under
the law and it should not be given to any illegal
immigrant”.
379. On 11.08.2015, this Court issued following
order:
“Having considered the matter, we are of the
view that the balance of interest would be
best served, till the matter is finally
decided by a larger Bench if the Union of
India or the UIDA proceed in the following
manner:
3901. The Union of India shall give wide
publicity in the electronic and print media
including radio and television networks that
it is not mandatory for a citizen to obtain
an Aadhaar card;2. The production of an Aadhaar card will not
be condition for obtaining any benefits
otherwise due to a citizen;3. The Unique Identification Number or the
Aadhaar card will not be used by the
respondents for any purpose other than the
PDS Scheme and in particular for the purpose
of distribution of foodgrains, etc. and
cooking fuel, such as kerosene. The Aadhaar
card may also be used for the purpose of the
LPG Distribution Scheme;4. The information about an individual
obtained by the Unique Identification
Authority of India while issuing an Aadhaar
card shall not be used for any other purpose,
save as above, except as may be directed by a
Court for the purpose of criminal
investigation.”
By subsequent order of 15.10.2015, some moreSchemes were included.
380. It is submitted that the Central Government and
the State Government issued various notifications
numbering 139, requiring Aadhaar authentication for
various benefits, subsidies and schemes. The issuance
of such orders is in breach of above Interim Orders
passed by this Court.
391
381. In Binoy Viswam (supra) an argument was advanced
that enactment of Section 139AA was in breach of the
Interim Order passed in Writ Petition (C) No. 494 of
2012. The said argument was considered and in Para 99
it was held as follows:
“99. Main emphasis, however, is on the plea
that Parliament or any State Legislature
cannot pass a law that overrules a judgment
thereby nullifying the said decision, that
too without removing the basis of the
decision. This argument appears to be
attractive inasmuch as few orders are passed
by this Court in pending writ petitions which
are to the effect that the enrolment of
Aadhaar would be voluntary. However, it needs
to be kept in mind that the orders have been
passed in the petitions where Aadhaar Scheme
floated as an executive/administrative
measure has been challenged. In those cases,
the said orders are not passed in a case
where the Court was dealing with a statute
passed by Parliament. Further, these are
interim orders as the Court was of the
opinion that till the matter is decided
finally in the context of right to privacy
issue, the implementation of the said Aadhaar
Scheme would remain voluntary. In fact, the
main issue as to whether Aadhaar card scheme
whereby biometric data of an individual is
collected violates right to privacy and,
therefore, is offensive of Article 21 of the
Constitution or not is yet to be decided. In
the process, the Constitution Bench is also
called upon to decide as to whether right to
privacy is a part of Article 21 of the
Constitution at all. Therefore, no final
decision has been taken. In a situation like
392this, it cannot be said that Parliament is
precluded from or it is rendered incompetent
to pass such a law. That apart, the argument
of the petitioners is that the basis on which
the aforesaid orders are passed has to be
removed, which is not done. According to the
petitioners, it could be done only by making
the Aadhaar Act compulsory. It is difficult
to accept this contention for two reasons:
first, when the orders passed by this Court
which are relied upon by the petitioners were
passed when the Aadhaar Act was not even
enacted. Secondly, as already discussed in
detail above, the Aadhaar Act and the law
contained in Section 139AA of the Income Tax
Act deal with two different situations and
operate in different fields. This argument of
legislative incompetence also, therefore,
fails.”382. We have noticed that the Writ Petition (C) No.
494 of 2012 was filed at the time when Aadhaar Scheme
was being implemented on the basis of executive's
instructions dated 28.01.2009. In the Writ Petition
filed prior to enactment of Act, 2016, challenge to
Aadhaar Scheme was founded on following:
i. The requirement of making Aadhaar
mandatory for availing benefits under
various social service schemes by way of
an executive order and
ii. Concerns regarding the right to privacy
of the individuals, which emanated on
393account of collection of biometric data
under the Aadhaar scheme, which is
without any legislative backing.383. Aadhaar Act, 2016 gives legislative backing to
the Aadhaar Scheme. The Act contains specific
provisions prohibiting disclosure of core biometric
information collected in Aadhaar enrolment. It is
submitted that Schemes notified under Section 7 of the
Act were on the strength of Aadhaar enactment and
cannot be said to be a violation of interim orders of
this Court. The submission that interim orders
directed the Aadhaar to be voluntary, it is submitted
by the respondent that consent was obtained from
individuals, who came for enrolment under the Aadhaar
Act. It is submitted that all those, who were enrolled
under the Statutory Scheme dated 28.01.2009, the
consent was given by the individuals in verifying
their informations.
384. We, thus, conclude that Aadhaar Act cannot be
struck down on the ground that it is in violation of
interim orders passed by this Court in Writ Petition
(C) No. 494 of 2012. Issue No. 18 is answered in
394following manner:
Ans.18: The Aadhaar Act does not violate the
interim orders passed in Writ Petition
(C) No. 494 of 2012 and other Writ
Petitions.
385. I had gone through the erudite and scholarly
opinion of Justice A.K.Sikri (which opinion is on his
own behalf and on behalf of Chief Justice and Justice
A.M.Khanwilkar) with which opinion I broadly agree.
Rule 9 as amended by PMLA (Second Amendment) Rules,
2017 has been struck down by my esteemed brother which
provision has been upheld by me. My reasons and
conclusions are on the same line except few where my
conclusions are not in conformity with the majority
opinion.
CONCLUSIONS:
386. In view of above discussions, we arrive at following
conclusions:
(1) The requirement under Aadhaar Act to give
one's demographic and biometric information
does not violate fundamental right of
395privacy.
(2) The provisions of Aadhaar Act requiring
demographic and biometric information from a
resident for Aadhaar Number pass threefold
test as laid down in Puttaswamy (supra) case,
hence cannot be said to be unconstitutional.(3) Collection of data, its storage and use does
not violate fundamental Right of Privacy.(4) Aadhaar Act does not create an architecture for
pervasive surveillance.(5) Aadhaar Act and Regulations provides protection
and safety of the data received from
individuals.(6) Section 7 of the Aadhaar is constitutional. The
provision does not deserve to be struck down on
account of denial in some cases of right to
claim on account of failure of authentication.(7) The State while enlivening right to food, right
to shelter etc. envisaged under Article 21
cannot encroach upon the right of privacy of
beneficiaries nor former can be given
precedence over the latter.396
(8) Provisions of Section 29 is constitutional and
does not deserves to be struck down.(9) Section 33 cannot be said to be
unconstitutional as it provides for the use of
Aadhaar data base for police investigation nor
it can be said to violate protection granted
under Article 20(3).(10) Section 47 of the Aadhaar Act cannot be held to
be unconstitutional on the ground that it does
not allow an individual who finds that there is
a violation of Aadhaar Act to initiate any
criminal process.(11) Section 57, to the extent, which permits use of
Aadhaar by the State or any body corporate or
person, in pursuant to any contract to this
effect is unconstitutional and void. Thus, the
last phrase in main provision of Section 57,
i.e. “or any contract to this effect” is struck
down.(12) Section 59 has validated all actions taken by
the Central Government under the notifications
dated 28.01.2009 and 12.09.2009 and all
actions shall be deemed to have been taken
under the Aadhaar Act.397
(13) Parental consent for providing biometric
information under Regulation 3 demographic
information under Regulation 4 has to be read
for enrolment of children between 5 to 18 years
to uphold the constitutionality of Regulations
3 4 of Aadhaar (Enrolment and Update)
Regulations, 2016.(14) Rule 9 as amended by PMLA (Second Amendment)
Rules, 2017 is not unconstitutional and does
not violate Articles 14, 19(1)(g), 21 300A of
the Constitution and Sections 3, 7 51 of the
Aadhaar Act. Further Rule 9 as amended is not
ultra vires to PMLA Act, 2002.(15) Circular dated 23.03.2017 being
unconstitutional is set aside.(16) Aadhaar Act has been rightly passed as Money
Bill. The decision of Speaker certifying the
Aadhaar Bill, 2016 as Money Bill is not immuned
from Judicial Review.(17) Section 139AA does not breach fundamental
Right of Privacy as per Privacy Judgment in
Puttaswamy case.398
(18) The Aadhaar Act does not violate the interim
orders passed in Writ Petition (C) No. 494 of
2012 and other Writ Petitions.
387. Now, we revert back to the batch of cases, which
have come up for consideration before us.
388. We having considered and answered the issues arising
in this batch of cases, all the Writ Petitions filed
under Article 32 deserves to be disposed of in accordance
with our conclusions as noted above. All Transfer
Cases/Transfer Petitions are also deserves to be decided
accordingly.
389. Now, we come to the Criminal Appeal arising out of
S.L.P. (Crl.) No. 2524 of 2014. The above S.L.P. (Crl.)
arose out of an order passed by Judicial Magistrate First
Class dated 22.10.2013 by which Judicial Magistrate First
Class directed DG, UIDAI and Dy. Dg. UIDAI Technology
Centre, Bangalore to provide the necessary data to the
respondent C.B.I. The said order was challenged in the
High Court by means of Criminal Writ Petition, in which
the order was passed by the High Court on 26.02.2014
giving rise to S.L.P. (Crl.) No. 2524 of 2014.
399390. We have noticed above that according to Aadhaar Act
Section 33 disclosure of information can be made as per
subsection (1) pursuant to an order of Court, not
inferior to that of District Judge. The order directing
for disclosure of information having been passed by
Judicial Magistrate First Class, in the present case, the
order is not in consonance with subsection (1) of
Section 33, hence the order passed by Judicial
Magistrate, First Class dated 22.10.2013 and order of the
High Court passed in reference to the said order deserves
to be set aside. Criminal Appeal is allowed accordingly.
391. No case is made out to initiate any contempt
proceedings in the contempt applications as prayed for.
All the contempt petitions are dismissed.
392. In result, this batch of cases is decided in
following manner:
(i) All the Writ Petitions filed under Article 32
as well as Transfer Cases are disposed of as
per our conclusions recorded above.
400
(ii) Criminal Appeal arising out of S.L.P.
(Criminal) No. 2524 of 2014 is allowed.
(iii) All the contempt applications are closed.
393. Before we part, we record our deep appreciation for
the industry, hard work and eloquence shown by learned
counsel for the parties appearing before us, which was
amply demonstrated in their respective arguments.
Learned counsel have enlightened us with all relevant
concerned materials available in this country and abroad.
The concern raised by these Public Interest Litigations
is a concern shown for little Indian for whom the
Society, Government and Court exists. We appreciate the
concern and passion expressed before us by learned
counsel appearing for both the parties as well as those,
who were permitted to intervene in the matter. We close
by once more recording of our appreciation for the cause
espoused in these cases.
..............................J.
( ASHOK BHUSHAN )
NEW DELHI,
SEPTEMBER 26, 2018.