November 29, 2020

CASE BRIEF: JUSTICE K.S. PUTTASWAMMY(RETD) V. UNION OF INDIA

Bench: A Bhushan, A Khanwilkar, A Sikri, D Misra

Court: The Supreme Court of India

Theme of the Case: Right to Privacy is a fundamental Right

Laws dealt by the Case: Aadhar Act, Constitutional Law and Rights

Judgement- India

ABSTRACT

This case summary primarily examines about the fundamental essence of the Right to Privacy and its ancillary legal repercussions. Justice K. S. Puttaswamy is a retired Judge of the Karnataka High Court who was also the original petitioner, challenging the Government of India over making Aadhaar mandatory. He had filed a writ petition in 2012 and over the last five years, 26 other petitions have been tagged along with his, challenging the scheme. Retired Justice K.S. Puttaswamy turned litigant for the first time in his legal career, spanning five decades, when he petitioned the Supreme Court against the linking of state benefits to the UID scheme saying that much money has been wasted on the ‘dangerous’ project. Arguing passionately that “It is a clear violation of citizens privacy and among various other reasons this program was rejected by the Parliamentary Standing Committee on Finance, but still the Government of India went ahead with it. How can this awfully wrong program roll out without a clear legislation?”, Justice K.S. Puttaswamy filed the PIL for scrapping the Aadhar project in 2012. On 24 August 2017, a nine-judge bench of the Supreme Court of India in a remarkable and wide ranging 547-page judgment ruled unanimously that privacy is a constitutionally protected right in India in the case of Puttaswamy v Union of India. With the Supreme Court declaring the Right to Privacy a fundamental right, Justice K.S. Puttaswamy said “I am completely vindicated by the decision. My contention had always been that Aadhaar enrolment can be made voluntary, in which case I would not have petitioned”. In February 2020, the High Court of Kenya at Nairobi referred to the Indian Supreme Court judgment in Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Others to hold that biometric data is necessary for identification purposes and adopted the findings in Justice K.S. Puttaswamy (Retd.) on the necessity of different types of biometric data in identification.

FACTS OF THE CASE

v The case was brought by 91-year old retired High Court Judge Puttaswamy against the Union of India (the Government of India) before a nine-judge bench of the Supreme Court which had been set up on reference from the Constitution Bench to determine whether the right to privacy was guaranteed as an independent fundamental right following conflicting decisions from other Supreme Court benches.

v The latest case had concerned a challenge to the government’s Aadhaar scheme (a form of uniform biometrics-based identity card) which the government proposed making mandatory for access to government services and benefits. The challenge was made before a three-judge bench of the Supreme Court on the basis that the scheme violated the right to privacy. However, the Attorney General argued on behalf of the Union of India that the Indian Constitution does not grant specific protection for the right to privacy. He based this on observations made in the case of M.P. Sharma v. Satish Chandra (an eight-judge bench) and Kharak Singh v. Uttar Pradesh (a five-judge bench). However, a subsequent eleven-judge bench found that fundamental rights were not to be construed as distinct, unrelated rights, thereby upholding the dissenting view in Kharak Singh. This also formed the basis of later decisions by smaller benches of the Supreme Court which expressly recognized the right to privacy.

v It was in this context that a Constitution Bench was set up and concluded that there was a need for a nine-judge bench to determine whether there was a fundamental right to privacy within the Constitution.

v The Petitioner argued before the nine-judge bench that this right was an independent right, guaranteed by the right to life with dignity under Article 21 of the Constitution. The Respondent submitted that the Constitution only recognized personal liberties which may incorporate the right to privacy to a limited extent. The Court considered detailed arguments on the nature of fundamental rights, constitutional interpretation and the theoretical and philosophical bases for the right to privacy as well as the nature of this right.

ISSUES RAISED

· 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?

· Whether the Aadhaar Act violates right to privacy and is unconstitutional on this ground? (in context of Sections 7 and 8 of the Aadhaar Act.)

· Whether the Aadhaar Act defies the concept of Limited Government, Good Governance and Constitutional Trust?

· Whether the Aadhaar Act could be passed as ‘Money Bill’ within the meaning of Article 110 of the Indian Constitution?

· Whether Section 139AA of the Income Tax Act, 1961 is violative of right to privacy and is, therefore, unconstitutional?

· Whether Rule 9(a)(17) of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 and the notifications issued thereafter, which mandate linking of Aadhaar with bank accounts, are unconstitutional?

· Whether Circular dated March 23, 2017 issued by the Department of Telecommunications mandating linking of mobile number with Aadhaar is illegal and unconstitutional?

· Whether certain actions of the respondents are in contravention of the interim orders passed by the Court, if so, the effect thereof?

ARGUMENTS ADVANCED

PETITIONERS

The petitioners’ foundational arguments were that the strict implementation of the Aadhaar scheme would be a grave risk to the rights and liberties of the citizens of this country which ought to be secured by the Constitution of India. It was also contended that Aadhar would militate against the constitutional abiding values and its foundational morality. It contained the potential to enable an intrusive state to become a surveillance state on the basis of information that would be collected in respect of each individual by creation of a joint electronic mesh.

It was humbly argued that Right to Privacy was an integral part of Right to life and Personal liberty, and any restriction imposed on it should be in accordance with procedure established by law, i.e., it must satisfy the requirements of Art. 14 and 19. Also, the law imposing such restrictions should be just, fair and reasonable.

As per the facts and circumstances of the case, the restrictions imposed by the government on the exercise of right to privacy of people, were arbitrary and unreasonable, as there existed no reasonable classification, and there was no nexus between such classification and the objective of the Act.

Information sought from the people, severely violated the bodily and mental integrity of the people, in addition to having no relation to the objective of the Act.

Also, classification based on religion was not only discriminatory but compelling the people to disclose their religion was in violation of Art. 25 of the Constitution of India, 1950. Further, making Aadhaar Cards mandatory for the purposes of benefit and non- benefit schemes would deprive the people of their choice, while putting them under constant surveillance of the state. This would amount to grave violation of right to life as it would encroach upon the dignity of the individual, which is the basic element of the Constitution.

ARGUMENTS MADE AGAINST AADHAR

SHYAM DIVAN

Divan was the first counsel to start the arguments on behalf of the petitioners. His arguments challenged the Aadhaar programme, the Aadhaar Act, 2016 and related entities. He argued:

v The Aadhaar architecture is capable of tracking, tagging and profiling of individuals and, hence, it is unconstitutional.

v The UIDAI has the power to cancel the Aadhaar number anytime with the citizen having almost no redressal mechanism. That deprives him of services for which he or she would need an Aadhaar number.

ARVIND DATAR

  1. Linking of bank accounts with Aadhaar violates rights of a citizen guaranteed under Article 14 and 21 as they cannot operate accounts without linking it with the unique ID.
  2. Aadhaar will destroy decisional autonomy (right of choice) which has been recognised in the Right to Privacy judgement.
  3. Violates the principle of proportionality and rule of law as not having an Aadhaar destroys the existence of an individual.

P.CHIDAMBARAM

  1. Passage of Aadhaar Act as a money bill sets a dangerous precedent.
  2. Certain provisions of the Aadhaar Act have no relation to the nature of a money bill.
  3. There are strict criteria of what will qualify as a money bill, which bypasses the scrutiny of the Rajya Sabha as well as takes away the power of the President to send the bill back to Parliament for reconsideration.
  4. Provisions of the Act which do not fulfill the criteria of a money bill cannot be severed once the bill has been passed. Hence, the entire law needs to be struck down.

RESPONDENTS

The respondents rebutted 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.

The comprehensive reports on data protection and informational privacy was prepared by the Group of Experts constituted by the Planning Commission of India , 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.

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 released its report and the first draft of the Personal Data Protection Bill, 2018 replaced 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 aimed to create a trust-based relationship between the two. The Bill largely incorporated 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.. 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 had been given a crucial status in the draft data protection law. Thus, a primary basis for processing of personal data must be individual consent.

ARGUMENTS IN FAVOUR OF AADHAR AND MAKING IT MANDATORY

v Aadhaar would qualitatively restructure the role of the state in the social sector.

v Aadhaar is the most widely held identity document in the country with around 92 crore people under it. Restricting Aadhar’s voluntary use would mean a majority of the population will not be able to use it to access various social schemes.

v Aadhaar can help eliminate duplication and impersonation in muster rolls and beneficiary lists, plugging the leaks that currently characterise most social welfare initiatives.

v It will impact nearly 1 crore workers under MGNREGA, who use Aadhaar to withdraw their wages every month, and nearly 30,00,000 pensioners.

v Countering the privacy argument, UIDAI says the data captured is secure and encrypted right at the source and all biometrics are stored in the Government of India’s servers with “world class security standards”

v “Aadhaar” shall be able to reduce the involvement of middlemen who siphon off part of the subsidy.

v So far, the government subsidies contained products like food grains, fertilizers, water, electricity and services education, healthcare by providing them at a lower than market price to the beneficiaries. This has led to operational inefficiencies. An Aadhaar enabled DCT (Direct Cash Transfer) system will improve the situation and would ensure timely payment directly to intended beneficiaries, reduce transaction costs and leakages.

v The government inserted a provision making it mandatory to quote Aadhaar number while applying for PAN card as well as when filing Income Tax returns. The main objective of this exercise is to link the PAN with Aadhaar and thereby, also identify tax evaders.

v Even, the Aadhaar Act regulations state that an individual’s Aadhaar number may be “omitted” permanently or deactivated temporarily by the Unique Identification Authority of India.

v Identity of a citizen in the wake of infiltrations from neighbouring countries may be described as the “missing link” in India’s efforts to rise as a superpower. Aadhaar may be termed as the technology linked identity drive in right direction.’’

DECISION OVER VIEWED

The nine-judge bench of the Supreme Court unanimously recognized that the Constitution guaranteed the right to privacy as an intrinsic part of the right to life and personal liberty under Article 21. The right to privacy was reinforced by the concurring opinions of the judges in this case which recognized that this right includes autonomy over personal decisions, bodily integrity as well as the protection of personal information. The concurring judgments included specific implications of this right, some of which are illustrated below:

Ø J. Chandrachud (on behalf of himself, C.J. Kehar, J. Agrawal and J. Nazeer): This opinion stated that privacy was not surrendered entirely when an individual is in the public sphere. Further, it found that the right to privacy included the negative right against State interference, as in the case of criminalization of homosexuality, as well as the positive right to be protected by the State. On this basis, the Judges held that there was a need to introduce a data protection regime in India.

Ø J. Chelameswar: in his opinion, the Judge said that the right to privacy implied a right to refuse medical treatment, a right against forced feeding, the right to consume beef and the right to display symbols of religion in one’s personal appearance etc.

Ø J. Nariman: in this concurring opinion, the Judge classified the facets of privacy into non-interference with the individual body, protection of personal information and autonomy over personal choices.

Ø J. Sapre: the Judge said that, in addition to its existence as an independent right, the right to privacy included an individual’s rights to freedom of expression and movement and was essential to satisfy the constitutional aims of liberty and fraternity which ensured the dignity of the individual.

Ø J. Kaul: the Judge discussed the right to privacy with respect to protection of informational privacy and the right to preserve personal reputation. He said that the law must provide for data protection and regulate national security exceptions that allow for interception of data by the State.

The Court also recognized that the right was not absolute but allowed for restriction where this was provided by law, corresponded to a legitimate aim of the State and was proportionate to the objective it sought to achieve.

SIGNIFICANCE OF THE AADHAR VERDICT

The decision establishes a binding or persuasive precedent within its jurisdiction.

The decision was given by a historic nine-judge bench of the Supreme Court. Therefore, it establishes a binding precedent on all Courts, unless overruled by a larger bench. It is also of wider significance because, by putting the right to privacy at the heart of constitutional debate in the world’s largest democracy, it is likely to provide assistance and inspiration for privacy campaigners around the world.

Also,

v Most commercial banks, payments bank and e-wallet companies like Paytm had so far been insisting customers to get their KYC done using Aadhaar card and had warned account holders that their services will be blocked in case of failure. Now they cannot seek Aadhaar data.

v Further to buy a new SIM card, the telecom service providers cannot seek Aadhaar details from their customers.

v Students of CBSE, NEET, UGC also do not require Aadhaar number to appear in exams. Even schools cannot seek Aadhaar card for admissions.

v Aadhaar card is however must for availing facilities of welfare schemes and government subsidies as it empowers the poor and marginalised.

v The Supreme Court had made exception for children saying that no child can be denied benefits of any scheme if he or she doesn’t have Aadhaar card. The apex court had struck down Section 57 of the Aadhaar Act as “unconstitutional”. This means that no company or private entity can seek Aadhaar identification from you. The constitution bench of the top court had also struck down the national security exception under the Aadhaar Act.

v The hon’ble Supreme Court said that there is a fundamental difference between Aadhaar and other identity proof . Aadhaar cannot be duplicated and therefore it is an unique identification. It added that the main objective of Aadhaar is to empower the marginalised sections of the society, while giving them an identity. Thus, Aadhaar card has been made mandatory for availing government welfare schemes.

CRITICAL ANALYSIS OF THE JUDGEMENT

The court settled the matter by reading in a fundamental right to privacy into Article 21 of the constitution which provides for the right to life and liberty. The question about privacy had resurfaced with the Government of India’s proposal of the Aadhaar scheme, which sought to create a biometric and demographic database of Indian citizens to issue a unique identity number for each citizen.

Broadly the promise of the scheme was to ensure ‘…efficient, transparent, and targeted delivery of subsidies, benefits and services’ by the government of India in its quest for the elusive ideal of good governance. The legal form of the proposal was the AADHAAR (TARGETED DELIVERY OF FINANCIAL AND OTHER SUBSIDIES, BENEFITS AND SERVICES) ACT, 2016, (‘the Act’) the constitutional validity of which was challenged by several individuals and organisations. One of the chief challenges to the Act was that it violated a fundamental right to privacy of Indian citizens. But, the Aadhaar scheme was one of the most ambitious projects of the Government of India. Launched with the sole purpose of empowering the marginalized section of the society, it was initiated as a scheme to provide a unique identification number for every citizen in India This scheme gave way to many privacy rights battles. The question of dignity, informational self-determination and consent formed the basis for the privacy rights claims surrounding the Aadhar scheme. On the historic day of 26th September 2018, a five-judge bench upheld the validity of Aadhaar Act but struck down many provisions leading to severe reduction in the functional character of law.

The majority judgment written by Justice A K Sikri, while declaring the Aadhaar Act to be constitutional, had struck down provisions such as section 33(2) as well as section 57. The question of possible state surveillance as well as possibility of data breach and exclusion of citizen from government services and schemes were mitigated on the basis of that fact that UIDAI has claimed the system to be largely foolproof. Threshold of right to privacy and constitutional principles of proportionality as well as dignity requirements were attenuated while upholding the constitutional validity of the Aadhaar Act as reasonable restriction.

But in the majority decision the requirement of right of autonomy and right of choice is not protected by upholding the Aadhaar Act. The requirement of Aadhaar for availing government schemes and benefits as well as linking of Aadhaar to the PAN card allowed by the Supreme Court majority decision does not provide any convincing constitutional rationale. Even the minimal exclusion of beneficiaries of government schemes, due to lack of Aadhaar or authentication problem could lead to violation of dignity protection as required by the constitution. Even though the majority has struck down the Section 33 (2) as well as the Section 57, the larger rationale of upholding the Aadhaar Act to be constitutional fails to meet the test of reasonable objective and reasonable means to impinge upon the right to privacy.

The Aadhaar decision clearly rules out the possibility of private entities using the authentication mechanism. It also sends a clear message that the right to privacy will now be an important entity for any further legislative action.

DECISION DIRECTION- EXPANDS EXPRESSION

The case expands freedom of expression by recognizing privacy as an independently enforceable right, as opposed to a right that is available only as far as it impacts constitutionally guaranteed freedoms. This provides for protection of freedom of expression by recognizing rights such as the right against arbitrary, unregulated State surveillance, the right to express one’s sexual orientation, religious expression and data protection.

Contributed by: Damini Sharma and Nisarg Trivedi(Students, School Of Law, Bennett University)

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