JUSTICE K.S. PUTTASWAMY (RETD.) AND ANOTHER V.

UNION OF INDIA AND

OTHERS
Citation:-WRIT PETITION (CIVIL) NO. 1056 OF 2017
Petitioner:-JUSTICE K.S. PUTTASWAMY (RETD.)
Respondent:-UNION OF INDIA AND OTHERS
Date of Judgment:-26september,2018
Bench:- Justice D. Misra, Justice D.Y. Chandrachud , Justice A Bhushan,
Justice A Khanwilkar, Justice A Sikri

Introduction

On 24 August 2017, a nine judge bench of the Supreme Court of India handed down its decision in the
important constititutional case of Puttaswamy v Union of India.1 The Court ruled unanimously that privacy
is a constitutionally protected right in India. This is landmark case which is likely to lead to constitutional
challenges to a wide range of Indian legislation. The case arose out of a challenge to a constitutional
challenge to the Aadhaar project, which aims to build a database of personal identity and biometric
information covering every Indian. More than a billion Indians have so far been registered in the Aadhaar
programme, which sees citizens issued with a 12-digit number that aligns to specific biometric data such as
eye scans and fingerprints. Registration is now become mandatory for filing tax returns, opening bank
accounts, securing loans, buying and selling property or even making purchases of 50,000 rupees and
above.2

In 2012, Justice K.S. Puttaswamy (Retired) filed a petition in the Supreme Court challenging the
constitutionality of Aadhaar on the grounds that it violates the right to privacy.

The Government argued that there was no constitutional right of privacy in view of a unanimous decision
of eight judges in M.P. Sharma v. Satish Chandra (1954SCR1077) and a decision by a majority of four
judges in Kharak Singh v. State of Uttar Pradesh3

The case came before a three judge Bench of the Court which, on 11 August 2015, ordered that the matter
should be referred to a larger Bench of the Court. On 18 July 2017, a five judge Constitution Bench ordered
the matter to be heard by a nine judge Bench. While it awaited clarification on the right to privacy, the

1 WRIT PETITION (CIVIL) NO. 1056 OF 2017

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(1964)1 SCR 332
bench hearing the constitutional challenge to Aadhaar passed an interim order restricting compulsory
linking of Aadhaar for benefits delivery.

Facts of Case
 The Government of India, initiated a project titled ‘Unique Identification for BPL Families’. A
Committee was set up for this purpose which suggested the creation of Unique Identification
database. It was decided to set up the project in three phases.

 January, 2009 – Planning Commission of India passed a notification on UIDAI. 2010- the National
Identification Authority of India Bill, 2010

 November 2012 – Retired Justice K S Puttaswamy and Mr. Parvesh Sharma filed a PIL Writ Petition
(Civil) No. 494 of 2012 in SC challenging validity of Aadhaar.

 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.

 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. All the writ petitions were clubbed together. In May, 2017 the
Former Union minister and Congress leader Jairam Ramesh moved to SC Challenging the Centre’s
decision to treat Aadhaar bill as a money bill.

 Then, on August 24, 2017, nine-judge bench of the Hon’ble SC ruled that the right to privacy is a
fundamental right. On January 17, 2018 a five-judge bench of the Supreme Court began hearing of
the Aadhar Case. On April 25, 2018 the Hon’ble Supreme Court of India questioned the Centre on
the mandate of seeding Aadhaar with mobile.

 Then on May 10, 2018 SC reserved the Aadhaar verdict. Finally on the historic day of September
26, 2018 the Hon’ble Supreme Court upheld the constitutional validity of the Aadhaar card but
 struck down certain provisions of the Aadhaar Act, including the compulsory linking of Aadhaar
with bank accounts, mobile phones and school admissions.4

Issues

The issues raised in this case were:-

(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
minimization, 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? (In context
of Sections 7 and 8 of the Aadhaar Act.)

(3) Whether children can be brought within the sweep of Sections 7 and 8 of the Aadhaar Act?

(4) Whether the following provisions of the Aadhaar Act and Regulations suffer from the vice of
unconstitutionality:

 Sections 2(c) and 2(d) read with Section 32

 Section 2(h) read with Section 10 of CIDR
 Section 2(l) read with Regulation 23
 Section 2(v), Section 3,Section 5, Section 6, Section 8, Section 9
 Sections 11 to 23
 Sections 23 and 54
 Section 23(2)(g) read with Chapter VI & VII – Regulations 27 to 32
 Section 29, Section 33, Section 47, Section 48, Section 57, Section 59

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(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
Indian 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 thereafter, 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?

(10) Whether certain actions of the respondents are in contravention of the interim orders passed by the
Court, if so, the effect thereof?5

Argument

Petitioners-
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 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

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state on the basis of information that would be collected in respect of each individual by creation of a
joint electronic mesh.

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.

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.6

Respondents
The respondents, stated on affidavit that the attempt of the respondents would 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.

The respondents, rebutted the arguments of the petitioners that the architecture of the Aadhaar Act
enables State 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,
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and ethnicity, and 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 utilized globally to ascertain the identity
of a person. The argument was, thus, that the information gathered was noninvasive and non-intrusive
identity information.

The comprehensive reports on data protection and informational privacy was prepared by the Group of
Experts79 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.

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 addressed the processing of personal
data where such data has been collected, disclosed, shared or otherwise processed within the territory of
India. The bill had incorporated provisions and principles from the Europe’s General Data Protection
Regulation (EUGDPR).

The Draft Bill 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. 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 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.7

Judgment
The nine judges of the Court gave six separate opinions, producing what must be a contender for the
longest reasoned judgment ever produced by a court. In detail, with the Indian domestic case law on
privacy and the nature of constitutional rights. It also considers Comparative Law on Privacy (from
England, the US, South Africa, Canada, and the European Court of Human Rights and the Inter-
American Court of Human Rights). Various criticisms of the privacy doctrine – from Bork, Posner and
feminist critics – are addressed.

The problem for the Petitioners was that the Indian Constitution does not contain an explicit privacy
right. Nevertheless, the Indian Constitution is a living instrument. The Courts have sought to give effect
to the “values” which the Constitution it contains by interpreting express fundamental rights protections
as containing a wide range of other rights. The crucial provision for this purpose is Article 21 which
provides that

“No person shall be deprived of his life or personal liberty except according to procedure established
by law”

Chandrachud J points out that this provision has been interpreted as containing, inter alia, the rights to
a speedy trial, legal aid, shelter, a healthy environment, freedom from torture, reputation and to earn a
livelihood (for a list see [150]). Privacy is an incident of fundamental freedom or liberty.

In an important section of the joint judgment headed “Essential Nature of Privacy”, Chandrachud J
analyses the concept of privacy as being founded on autonomy and as an essential aspect of dignity

In the next section of the judgment Chandrachud J considers “Informational Privacy”, referring to a
range of academic writing. In particular, the judgment includes an info graphic from an article by Bert-
Jaap Koops et al., “A Typology of Privacy” to illustrate the fundamental notions of privacy:

The judgment refers with approval to the 2012 Report of the Expert Group on Privacy – which sets out
nine principles (which have much in common with the EU data protection principles).

It is held that privacy is a constitutionally protected right which emerges, primarily, from Article 21 of
the Constitution. This is not an absolute right but an interference must meet the threefold requirement
of (ii) Legality; (ii) the need for a legitimate aim and (iii) proportionality. It is also noted that, as
informational privacy is a facet of the right to privacy the Government will need to put in place a robust
regime for data protection.8

Two other important points are dealt with in the joint judgment.

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Firstly, it emphasizes the fact that sexual orientation is an essential attribute of privacy thus casting doubt
on the case of Suresh Kumar Causal v. Naz Foundation 9(2014) which upheld section 377 of the Indian
Penal Code, which effectively criminalizes same-sex relationships between consenting adults. A
reconsideration of Suresh Koushal is pending before a constitution bench of the Supreme Court.

Secondly, Chandrachud J overturns the judgment of his father (Chandrachud CJ) in the notorious case
of ADM Jabalpur v Shivakant Shukla10 (1976) which held that fundamental rights could be suspended
during the Emergency. Though the ADM Jabalpur judgment was nullified by 44th constitutional
amendment it has now finally been put to rest. In his concurring judgment Sanjay Kishan Kaul J
commented

“The ADM Jabalpur case … was an aberration in the constitutional jurisprudence of our country and
the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection”

R F Nariman J gave a judgment of 122 pages and four other judges gave substantive concurring
judgments.

By its order the Court ruled that the right to privacy is protected as part of the right to life and
fundamental liberty under Article 21. The case was referred back to the original bench three judges for
decision on the merits.11

Critical Analysis of the Judgement

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

9 CIVIL APPEAL NO.10979 OF 2013

10
1976 AIR 1207
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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.

Conclusion

In 2011, the Central Government initiated a new identity document known as the Aadhaar Card
and established a new agency, the Unique Identification Authority of India (UIDAI), to issue the card.
Aadhaar is a twelve digit unique identity number. The government intended for Aadhaar to be the
primary identity number for all legal Indian residents. It has made Aadhaar available to every legal
resident free of cost. In order to apply for the card, a resident must submit their biometric data, which
includes a scan of their fingerprints and retinas. The UIDAI is responsible for storing the data in a
centralized database.

The Aadhaar scheme has been challenged before the Supreme Court by Justice K.S. Puttaswamy, a
retired judge of the Karnataka High Court. He claims that Aadhaar infringes upon fundamental rights
guaranteed by the Constitution. Broadly, his objections include:

 The government has not put in place adequate privacy safeguards. Any private entity may request
authentication by Aadhaar for any reason subject to regulations by the UIDAI. There are no checks
on the power of the government to use the biometric data collected.
 Entitlements granted to the individuals by the State's social sector schemes are themselves a
fundamental right. They cannot be limited for any reason, including the failure to produce an
Aadhaar Card/Number when applying for benefits.

On 26th September 2018, the Court delivered its judgment. It upheld the Aadhaar Act as constitutionally
valid. It ruled that the Act empowers disenfranchised sections of society by providing them better access
to fundamental entitlements, such as State subsidies. The Court held that the Act was competently passed
by Parliament, even though it was passed as a Money Bill. The Court held that the Act does not violate
the fundamental rights guaranteed under Articles 14, 15, 19 and 21.
 Bibliography
 www.indiankanoon.org

 www.scconline.com

 www.lawoctups.in

 www. inforrm.org

 J.N. Pandey – Constitutional Law

 AMITY LAW SCHOOL

JUSTICE K.S. PUTTASWAMY (RETD.) AND ANOTHER

V.
UNION OF INDIA AND OTHERS

WRIT PETITION (CIVIL) NO. 1056 OF 2017

SUBMITTED TO SUBMITTED BY
Prof. MADHU SHASTRI AARTI MAAN

2019-2020
 AMITY LAW SCHOOL

JUSTICE K.S. PUTTASWAMY (RETD.) AND ANOTHER

V.
UNION OF INDIA AND OTHERS

WRIT PETITION (CIVIL) NO. 1056 OF 2017

SUBMITTED TO SUBMITTED BY
Dr. GOVIND SINGH RAJPAL AARTI MAAN

2019-2020