December 6, 2020

Case Brief: Justice K. S. Puttaswamy (Retd.) and Anothers. vs Union of India and Ors

Case Number: WRIT PETITION (CIVIL) NO 494 OF 2012

Court : Supreme Court Of India

Coram: Justice D.Y. Chandrachud, Chief Justice J.S. Khehar, Justice R.K. Agrawal and Justice S. Abdul Nazeer, Justice J. Chelameswar, Justice S.A. Bobde, Justice Abhay Manohar Sapre, Justice Rohinton Fali Nariman and Justice Sanjay Kishan Kaul

Theme: Validity of Aadhar Act 2016

Subject: The Information Technology Act, 2000 (Sec 66E) • The Constitution of India, 1950 (Article 19(1)(a), 19(1)(d), 21) • The Aadhaar Act, 2016 (Section 7, 29, 33, 47, 57)

Judgement: India

FACTS

In this case, the Government of India presented a project titled “Unique Identification of Families Below the Poverty Line.” And for this reason, a committee was set up to start its research by recommending a single Identification database.

  1. This Unique Identification Database was used for the establishment of three phased projects.
  2. In January 2009, the Indian Planning Commission issued a notification on the Unique Identification Database (UIDAI).
  3. After that, the National Identification Authority of India bill 2010 was introduced in Parliament in 2010.
  4. In November 2012, retired Justice K.S.Puttaswamy and Mr. Pravesh Sharma filed a petition of public interest in civil law No.494 of 2012 before the Supreme Court challenging the validity of the Aadhaar.
  5. In that public interest Litigation, the writ petition team specifically challenged the ground that it violates the fundamental rights of citizens of the country that is the right to privacy, which falls within the scope of Article 21 of the Indian Constitution. Many of the orders have been passed from time to time in the petition.
  6. But in 2016, with the enactment of the Aadhaar Act, the petitioners challenging Aadhar filed a new petition challenging the validity of the Aadhaar Act.
  7. After that, all the petitions were combined.
  8. In the middle of 2017, former Union Minister Jairam Ramesh, the Leader of Congress, came to the Supreme Court and challenged Aadhar’s decision as a money bill.
  9. Finally, on 24 August 2017 the nine judges ‘bench of the apex court ruled that the right to privacy is regarded as a basic law pursuant to Article 21 of the Indian Constitution.
  10. The court commences the hearing of the case of Aadhaar on 17 January 2018, and starts to proceed with it Then on 25 April 2018, the Supreme Court of India challenged the State with respect to the order to seed mobile Aadhar.
  11. Finally, the Supreme Court acknowledged the constitutional validity of the Aadhaar card act on 26 September 2018 and removed certain provisions of this act.

ISSUES

The following issues were raised in the case:

  1. Whether the Aadhaar Project has the propensity to create a state of surveillance and is therefore unconstitutional on this basis?
  2. If the Aadhaar Project violates the right of people to privacy and is founded on this basis unconstitutional?
  3. Whether the Aadhaar Act includes children under Sections 7 and 8?
  4. Whether the following provisions of the Aadhaar Act and Regulations suffer from the vice of unconstitutionality:
  5. Sections 2(c) and 2(d) read with Section 32
  6. Section 2(h) read with Section 10 of CIDR
  7. Section 2(l) read with Regulation 23
  8. Section 2(v), Section 3,Section 5, Section 6, Section 8, Section 9
  9. Sections 11 to 23
  10. Sections 23 and 54
  11. Section 23(2)(g) read with Chapter VI & VII – Regulations 27 to 32
  12. Section 29, Section 33, Section 47, Section 48, Section 57, Section 59
  13. Whether the Aadhaar Act defies the concept of Limited Government, Good Governance and Constitutional Trust?
  14. Whether the Aadhaar Act could be passed as ‘Money Bill’ within the meaning of Article 110 of the Indian Constitution?
  15. Whether Section 139AA of the Income Tax Act, 1961 is violative of right to privacy and is, therefore, unconstitutional?
  16. 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?
  17. Whether Circular dated March 23, 2017, issued by the Department of Telecommunications mandating linking of mobile number with Aadhaar is illegal and unconstitutional?
  18. Whether certain actions of the respondents are in contravention of the interim orders passed by the Court, if so, the effect thereof?

CONTENTIONS OF BOTH THE PARTIES

On behalf of petitioner

The lawyers contending on behalf of petitioner :

Shyam Divan; Kapil Sibal; Gopal Subramaniam; K.V. Vishwanathan; P. Chidambaram; Arvind Datar

The arguments which were made by some famous lawyers against the Aadhaar Act were as follows:

Shyam Divan

  1. Shyam Divan was the first lawyer to begin with the claims of the petitioner. He called into question the Aadhaar Act, 2016. He claimed that according to the Indian Constitution the State is bound by subsidies and services to offer benefits to its people. The Aadhaar Act makes these benefits conditional on the people that the State is bound to make available to its people. The Aadhaar Act requires people to provide their biometric and demographic information to benefit from these benefits. Shyam Divan has questioned Section 7 of the Act on that basis.
  2. The Aadhaar Act allowed the government to monitor people who violated their privacy rights and was therefore unconstitutional. The UIDAI gives the State the power to cancel the number of people given in their Aadhaar and no redress mechanism would have been required for such a State act.

Kapil Sibal

  1. Kapil Sibal’s key argument was that since Right to Privacy became a constitutional right under Article 21 of the Constitution, then the citizens ‘personal information that the Act seeks to obtain would not be permitted. The Act deprives people of the right to make a choice because, according to the Act, it is mandatory for people to reveal to the State the details that the Act requires them in order to take advantage of the benefits and subsidies offered by the Government as without Aadhaar authentication the citizens would be excluded from those beneficiaries of the Law. The Aadhaar Act prohibits the protection of information from people accepted as the right
  2. He argued that the collection of information from citizens violates Article 21 of the Constitution.

Arvind Datar

  1. Arvind Datar claimed the Aadhaar Act was illegal because it could not be treated as a money bill. Linking the bank accounts with Aadhaar violates citizens ‘rights because they are not allowed to operate their bank accounts without linking them to the ID and, therefore, are breaches of Articles 14 and 21 of the Constitution. The State also didn’t give the people a reason to connect their bank accounts to Aadhaar. The State needed to give a justification to do so in order to justify the aim to be accomplished by that State.
  2. The Aadhaar Act deprives citizens of the right to choose and, therefore, infringes the fundamental right of citizens under Article 21 of the Constitution.
  3. The Act also violates the principle of proportionality laid down in Article 14 of the Constitution, as the fact that Aadhaar gives a valid identity to a person and that anyone who fails to do so will not be considered to have a valid identity.
  4. It argued that Section 139AA of the Income Tax Act, which obliges citizens to link their Aadhaar to their bank accounts, violates the right to privacy under Article 21 of the Constitution.

P. Chidambaram

  1. It was argued by P Chidambaram that the Aadhaar Act was by no means a bill of money and should not be treated as one. He stated that a bill to qualify as a bill of money must pass through strict criteria that have been set, and that if the bill passes those criteria only then it can be treated as a bill of money. He also stated that all bills of money need to be passed through the Rajya Sabha, and then passed on to the President for his consent.
  2. Consequently, the provisions of the Aadhaar Act, which do not meet the criteria of the money bill, can not be considered to have been passed, and therefore the entire law is void and needs to be repealed.

On behalf of respondents

  1. In their affidavit, the respondents claimed that their goal behind the law was to ensure that all people eligible for government benefits and subsidies obtain and are not deprived of such benefits and subsidies.
  2. Respondents also objected that the Aadhaar Act does not require any information that might infringe the right of a person to privacy. Respondents submitted that the Act hardly asks for any personal information from citizens that would allow the State to monitor them. The respondents also stated that the demographic information the Act seeks to provide citizens with includes the name, date of birth, gender, address, mobile number and e-mail address of citizens.
  3. In addition, the respondents claimed that Section 2(k) Act stipulates explicitly that information such as race and religion, caste, tribe, ethnicity, language, employment, entitlement or medical history can not be requested from the people under this Act and that, accordingly, any information that is subject to this law can not be requested of people. The scope is very restricted in view of the above mentioned section and the biometric data that the Act is trying to obtain from people is restricted to their fingerprints and an Iris scan.
  4. Such biometric information is very popular throughout the world to identify a individual. The respondent was therefore arguing that the information to be accessed by Aadhaar Act is non-invasive and non-intrusive information about the identity.
  5. The respondents said Aadhaar acts as an ID card which is used by some 92 crore persons to access different social schemes or to make use of the government’s benefits for its people. It is a text that is commonly used by the public and that restricts it will cause the people to have a issue. Aadhaar is a database that can help the Government identify and avoid duplication and impersonation of muster rolls and list of beneficiaries. It also allows MGNREGA employees and pensioners to withdraw salaries every month.
  6. The respondents also denied the privacy claim that the data collected by the Act is protected because it is authenticated at its root and that all citizens ‘biometrics are kept by the Government on the database of the Government of India. The Government of Indian servers has a security standard that is one of the best in the world. Duplication of cards or bogus cards to allow use of the benefits offered by the Government can be prevented with the aid of the Aadhaar number demanded by the people.
  7. The aim behind the government’s provision for people to quote their Aadhaar number when applying for a PAN card and filing tax returns is to identify tax evaders by connecting their PAN card to Aadhaar. Compulsory linking of PAN card with Aadhaar will curb tax evaders and also ensure that only one PAN card is owned by one person. Making Aadhaar mandatory will recognise and largely curb the fraudulent activities that are taking place in the country. Indian Unique Identification Authority may also permanently or temporarily deactivate the number of an person given in the Aadhaar.

JUDGEMENT

Six opinions and many insightful remarks are found in the judgment which spans 547 pages.

There is no single simple majority verdict given in K.S.Puttaswamy. There are six judgements, as mentioned above. Justice D.Y. Chandrachud, on behalf of himself and three others viz., Chief Justice J.S. Khehar, Justice R.K. Agrawal and Justice S. Abdul Nazeer, wrote the leading judgment. A common judgment handed down by four judges in a nine judge bench can not be treated as a majority judgment. All the other bench judges. Justice J. Chelameswar, Justice S.A. Bobde, Justice Abhay Manohar Sapre, Justice Rohinton Fali Nariman and Justice Sanjay Kishan Kaul have delivered separate judgments. Although none of the judges who wrote separate decisions expressed disagreement, in clear terms, with any other opinion, none seemed to have completely agreed with any other individual. There is a strong lack of shared participation in all respects when writing separate concurrent judgments.

The nine-judge bench unanimously held that the right to privacy is part of the integrity of an person and is fulfilled as a natural right. Apex court overruled all the decisions of the previous court and declared that the right to privacy is a fundamental right under Article 21 of the Indian Constitution, 1950. When it came to the sanctity of the Aadhar system, it was held that it was not illegal as long as it was voluntary.The court had multiple views on privacy:

Justice Chandrachud :

Justice Chandrachud, in writing, claimed that, under Part III, privacy was not foreign to other fundamental rights. It can be regarded as an intrinsic natural right that is important to the protection of human dignity. He urges that a data protection law and constructive responsibilities of the state will be required sooner or later because of the rapid developments in the country.

Aspects of privacy

According to him, “there are both negative and positive aspects of privacy; the former prevents the State from intervening inappropriately with the privacy of individuals, whereas the latter compels it to put in place a legal mechanism to prohibit others from doing so.”

Inherent rights

In his leading judgment, Justice D.Y. Chandrachud specifically claimed that ‘life and personal rights aren’t constitutional creations. The Constitution recognises certain rights as inherent in each person as an integral and inseparable part of the human element that dwells within.

Sexual orientation and privacy

Moreover, though accepting ‘sexual orientation’ as a fundamental right of privacy, it did not accept that it could only be rejected on the grounds that a tiny portion of the population of the country claimed to be so. He discredited one of the reasons for the constitutional validity of Section 377 of the Indian penal code by a two judge bench in Suresh Kumar Koushal v. Naz Foundation .The bench had ruled, among other things, the since only a small fraction of the population of a country is affected, there is no reason for the provision being declared unconstitutional.

Tests for the infringement of privacy

Justice D.Y. Chandrachud has laid down a threefold test to examine privacy violations, viz.,

‘(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.

’While emphasising that ‘any curtailment or deprivation of that right would have to take place under a regime of law’,he had also made it clear that ‘the procedure established by law must be fair, just and reasonable.’

He also noted some legitimate State interests, namely ‘protect national security, deter crime, investigate crime, encourage creativity and the dissemination of information, and deter the dissipation of benefits to social welfare.’

On Aadhaar as a Money Bill:

It is unconstitutional to pass the Aadhaar Act as a money bill. In order for an act to be passed as a money bill, it must contain only provisions relating to matters set out in Article 110(1)(a-)(g) Constitution. A review of the Aadhaar Act will show that it deals with a number of other aspects of the Aadhaar scheme, none of which fall within the scope of Article 110(1).

Steps to be followed :

For each step in the process of collecting bio-metric information, appropriate standards must be laid down and the time limit for retention must be defined on the basis of informed consent. The right of access, correction and deletion of data shall be given to the user. An opt-out should be made open. Such clauses are stripped of the Aadhaar Act.

On Legitimate Interest:

The State must ensure both financial exclusion and protection against financial exclusion when creating a single measure of identification. The Aadhaar Scheme aims to ensure that all segments of the population, including people who may not have been within the framework of conventional identity markers, are financially inclusive. Section 7 Law is focused on the legitimate interest of a State.

On Striking/Reading Down Specific Provisions

  1. Section 29(4)is over-compatible since it gives UIDAI broad discretion to print, view or posting a person’s core biometric information for the purposes stated in this Regulation.
  2. Sections 2(g), (j), (k) and (t) have an over-breadth influence, since it is possible to extend “other biological attributes.”
  3. Proviso to Section 28(5) of the Aadhaar Act, which prevented individuals from gaining access to the biometric information which constitutes the core of their unique identity, violates the fundamental principle of the person’s possession of the data at all times.
  4. Section 47 is arbitrary, because it does not provide people with a means to pursue appropriate solutions to infringe their right to privacy.
  5. Section 57 is simply arbitrary, over-breadth and in contravention of Article 14. The test of the Constitutional template can not be passed.
  6. Section 7 is over-reaching as the broad meanings of ‘services’ and ‘benefits’ enable governments in the sense of the Aadhaar platform to regulate almost every aspect of their interaction with people.
  7. The acts of state governments or private companies are not authorised by Section 59. Section 59 fails to pass a validating law test as it can not be resolved by merely validating what has been done under the notices of 2009 and 2016 without the complete absence of a regulatory system and guarantees.
  8. The guiding principles for the oversight mechanism provided for under Section 33(2), which require the release of identity data and authentication registers to the national security interests, are not specified, such as those providing for a data minimisation.
  9. The seed of Aadhaar to the PAN under Article 139AA does not stand separately because it is deemed to be illegal as a result of its enactment as a Money Bill and the touchstone of its proportionality
  10. Under Article 142, it is not directed to delete for a period of one year existing data that are collected. The data are not used for any reason during this time. The data shall be destroyed when the Union government has not implemented a fresh law at the end of one year, according to the principles set out in this judgment.

Surveillance State

The Aadhaar architecture allows for tracking operations through the Aadhaar database. Any leakage in the search log also raises the possibility that a person’s biometric information may become vulnerable to unauthorised third- use.

Aadhar and SIM Cards

The ambiguity of biometric details and SIM cards poses serious threats to the privacy, freedom and independence of the individual. With due regard for the proportionality test proposed in Puttaswamy and addressed in the judgment, it is not a legal nor a constitutional decision to connect the Aadhaar numbers with mobile SIM cards.

Justice Chelameswar

Chelameswar J. on the other hand, grounds the right to privacy, as comprising of three facets, namely

  1. repose (freedom from unwarranted stimuli),
  2. sanctuary (protection from intrusive observation) and time
  3. intimate decision (autonomy to make personal life decisions).

Tests laid by him for the infringement of privacy

Justice Chelameswar had proposed a two-fold test. According to him, the infringement of privacy is tested on ‘just, fair and reasonable grounds under Article 21 plus the amorphous criterion of’ compelling state interest. ‘Furthermore, he justified it by saying that’ only in the case of privacy arguments that warrant the strictest inspection is the requirement of compelling state interest to be extended. As for others, the just, fair and reasonable standard referred to in Article 21 shall apply.

Justice Chelameswar also provides a fourth data security test that requires the “highest degree of scrutiny” and is only justifiable when there is a “compelling interest of the State.” He points out, taking into account the strict inspection requirement, usually reserved for discriminatory cases in the U.S., that a category of privacy claims is in effect that must not only follow the standards provided for by Article 21 for “true, fair and rational,” but also be of greater significance to governmental interest in privacy intrusions.

Justice Nariman:

Gary Bostwick’s definition of privacy is also confirmed by Justice Nariman as “repose, sanctuary, and intimate decision.” He notes that the privacy rights are divided into three groups. Namely,

i) that which includes trespassing on the person through invasion by the state;

ii) unlawful use of knowledge and;

iii) individual control over basic personal choices.

Right to privacy as an inherent right

He addressed the law in ADM Jabalpur v. Sivakant Shukla and said that the majority judgment in the case is not a reasonable law any more, thus reversing it and showing that the rights to privacy are inalienable human rights inherent in every person by virtue of his / her human beings.

Justice Bobde:

Fundamental rights have two facets for Bobde J.: first, to restrict regulation and, second, to lay the foundations for the development and dignity of people. Thus, he accepts the positive and negative aspects of the enforcement of fundamental rights, similar to Chandrachud J., although it is clear that claims of fundamental rights (unlike other laws) lie firmly with State

He also stated that consent is essential for the distribution of inherently personal data such as health records.

Justice Kaul :

Judge Kaul, on the other hand, claimed that a individual can assert privacy against state and non-.state actors. In terms of the state, citizens consider possible risks in profiling and surveillance while non-state actors are more focused on the impact of technology, i.e. data production, processing and usage of the digital economy. Judge Kaul also argues that “technology can have an influence on an individual’s behaviour and the resulting chilling effect on freedom of speech and expression.” He also states that there is some knowledge needs to be shielded from both state and non-state players.

Justice Sapre:

Finally, Justice Sapre mainly focuses his opinion on the importance of the Preamble to the Constitution. He argues that an individual can combine his or her right to privacy with the principles of freedom, dignity and fraternity enshrined in the law.

Held

The Supreme Court’s nine-judge bench unanimously acknowledged that, under Article 21, the Constitution granted the right to privacy as an integral part of the right to life and to personal rights. The right to privacy has been given the status of a constitutional right subject to certain limitations, because it is not absolute.

The Supreme Court upheld the validity of the Aadhar scheme, which stated that appropriate measures should be taken to protect the data along with striking down various provisions of Aadhar Act . In addition, the apex court held that there were fundamental differences between the Aadhaar scheme and another type of identification evidence. The Aadhar Card can not be duplicated in any sense, and therefore the Unique Identification System is designed to empower the marginalised sections of society by giving them a special identity.

PRESENT STATUS OF THE JUDGEMENT

Puttaswamy’s 2017 judgment reaffirmed the ‘right to privacy’ as an important right in Indian law. In several cases, since then, the right to privacy has been used to illustrate and explain the scope of the right, as an significant precedent. We are addressing some of the cases of the Supreme Court and several High Courts, post-August 2017, which used the Puttaswamy judgment and the tests found therein to expand the law on the right to privacy in India.

Navtej Singh Johar and ors Vs. Union of India (UOI) and Ors., 2018 (Supreme Court)

In this case, the Supreme Court of India unanimously held that Section 377 of the Indian Penal Code 1860 (IPC), which criminalised ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalised consensual sexual conduct between adults of the same sex. In the case of K.S., the Court relied on the judgment. Puttaswamy v. Union of India, which argued that denying the LGBT community its right to privacy on the ground that they form a minority of the population would violate their fundamental rights, and that sexual orientation would be an inherent part of self-identity and would be a violation of the right to life.

Vinit Kumar Vs. Central Bureau of Investigation and Ors., 2019 (Bombay High Court)

This case deals with telephone tapping and surveillance under section 5(2) of the Indian Telegraph Act, 1885 (Telegraph Act) and the balance between the interests of public safety and the right to privacy. Section 5(2) of the Telegraph Act permits the interception of telephone communications in the case of a public emergency, or where there is a public safety requirement.

The High Court of Bombay applied the legitimacy and proportionality tests set out in Puttaswamy to the interception orders issued under the Telegraph Act and held that, in this case, the interception order could not be justified in the interest of public safety and did not satisfy the “principles of proportionality and legitimacy” test set out in Puttaswamy.

Central Public Information Officer, Supreme Court of India vs. Subhash Chandra Agarwal, 2019 (Supreme Court)

In this case, the Supreme Court held that the Office of the Chief Justice of India is a ‘public authority’ under the Right to Information Act, 2005 (RTI Act) – allowing information to be revealed, such as personal properties of the Judges. In this case, the Court addressed extensively the effect of such disclosure on the privacy, including in Puttaswamy’s sense. The Court found that the right to know and the right to privacy are on an equal footing, and that there was no need to take the view that one right prevails over another. The Court stated that the proportionality test laid down in Puttaswamy should be used by the Information Officer to balance the two rights, and also found that the RTI Act itself has sufficient procedural safeguards built in, to meet this test in the case of disclosure of personal information.

CONCLUSION

In my view, the Aadhaar project was the government of India’s one issue initiative that is launched as a scheme to provide the disadvantaged segment of society with a unique identification number to empower them and give them a special status and identity. And in our country’s judicial system, recognising the right to privacy as a fundamental right within the framework of Article 21 of the Constitution can be called a necessary step. Along with the decision of this Aadhaar, private entities are clearing the way to use the system for authentication. In addition, the right to privacy is considered after this judgment to be an significant institution prominent for the protection of individual’s right.

The right to Privacy formed an important part of the case. The Court upheld Aadhaar’s validity after it struck down numerous clauses and parts of the Act that were contrary to the Constitution and violated citizens ‘rights.

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