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Aadhar and Right To Privacy PDF
Aadhar and Right To Privacy PDF
UNIVERSITY, LUCKNOW
Submitted to Submitted by
2019-1st Semester
1
ACKNOWLEDGEMENT
I express my gratitude and deep regards to my subject teacher Dr. Shashank Shekhar for giving
me such a challenging topic and also for her exemplary guidance, monitoring and constant
I would also like to thank the librarian of Dr. Madhu Limaye Library who extended their
Lastly, I thank almighty, my family and friends for their constant encouragement without which
I know that despite my best effort some discrepancies might have crept in which I belive my
Avinash Tiwari
PREFACE
This project is taken with keen interest in the connection with the Right to Privacy and Aadhaar.
By this project it will be easy to know that why there has been so much issues related to privacy
and Aadhaar. Various cases related in this context with the related topic.And tried to understand
BEGNINING…......................................................................................7
BIRTH OF ADHAAR
FINAL JUGDEMENT
ADHAAR…................................................................................................14
PRIVACY…..................................................................................................17
5. CONCLUSION….........................................................................................18
6. REFERENCES.............................................................................................19
Aadhar And Right to Privacy: New Developments
Chapter 1
BIRTH OF AADHAAR
A developing country like India it was challenging is to precisely identify the location of the
recipient. The larger the population larger the difficulty in keeping the track of the
population.
From many years it has been difficult in the identification of an individual as there was
insufficient inefficient public distribution system. About 15 paise of every rupee reached the to
the roots, as former prime minister Rajiv Gandhi famously said in 1985 after travelling to
Odisha's drought-hit Kalahandi district. Unclearness encouraged corruption as the state kept
It all started as a National Identity Card pilot project in 13 states in 2003, but got recognised with
the creation of the Unique Identification Authority of India (UIDAI) headed by Nandan Nilekani
for an project to use thumbprints and retinal scans of the India’s largest population to create a
unique database, using 10 fingerprints, two iris scans and one facial photograph of 1.12 billion
Indians. After all these steps the Government of India had made compulsory to link aadhaar to
take incentives of any government policy by the Aadhaar Act 2016. “The world's largest
biometrics-based identity platform, which covers roughly 87 per cent of India's population, is
now paying for itself. In 2015, the government supplied Rs 61,000 crore to over 300 million
beneficiaries via direct benefit . The other side was the detection and deletion of 16 million
illegal ration cards and resultant savings of about Rs 10,000 crore. India's 12-digit revolution is
here to stay. And now 15 million digital transaction take place by this act. Nandan Nilekani an
employee in the Infosys thought that his only identity is that he is an employee in Infosys and
after his farewell he will have no other identity. And the same thought he shared with our former
PM Sri Manmohan Singh. After that he had a word, concerned many experts and asked them that
it is possible to have a record of unique identity so many people and got a positive response from
them. He needed a team which consist of people who know government and who understand
technology. In government, whether it is hiring for a new programme or filling a vacancy, there
is a proper same process to follow. A list of deserving candidates is made, including their
curriculum vitae and confidential reports. These last are hardly helpful – officers are usually
graded as outstanding or very good on the distinction. The exercise to find the deserving
candidate demanded insight and inside knowledge. Nilekani sought out K.P. Krishnan, about
whom it was said that he knew the civil list almost in its whole. Krishnan suggested three names
– for CEO, for CFO, and one for Nilekani to consider as private secretary (PS). He first met Ram
Sewak Sharma (IAS batch of 1978) and found that Ram Sewak Sharma hobby is code
writing1.”
The second person Nilekani met was M.S. Srikar, an IAS officer of the Karnataka cadre and a
gold medallist from the National Law School of India. Srikar was doing the mandatory mid-
career training at the IAS Academy in Mussoorie when he was told his name had been put up as
private secretary to the chairman of UIDAI. He grabbed the opportunity to work in a new and
unique project.
1
Aiyar, Shankkar. Aadhaar: A Biometric History of India’s 12-Digit Revolution,2017.
The third person was Ganga K. which was choosen as the CFO of UIDAI. Aadhaar (English:
Foundation) is a 12-digit unique identity number that can be obtained by citizens of India, based
on their biometric and demographic data. The data is collected by the Unique Identification
government of India, under the jurisdiction of the Ministry of Electronics and Information
Technology, following the provisions of the Aadhaar (Targeted Delivery of Financial and other
Subsidies, benefits and services) Act, 2016. Aadhaar is the largest biometric ID system in the
world. World Bank Chief Economist Paul Romer described Aadhaar as "the most sophisticated
ID programme in the world". Considered a proof of residence and not a proof of citizenship,
Aadhaar does not itself give any rights to domicile in India. In June 2017 the Home Ministry
made clear that Aadhaar is not a valid identification document for Indians travelling to Nepal
and Bhutan.
RIGHT TO PRIVACY: INTRODUCTION
The right to privacy is an important element of various legal traditions to block governmental
and private actions that risk the privacy of individuals2. Over 150 national constitutions mention
the right to privacy. The major concern, it is important to note, was with publicity given to
sensitive personal information — undesirable and embarrassing invasion of private life by the
press and public. Privacy uses the theory of natural rights, and generally responds to new
information and communication technologies. New technologies alter the balance between
privacy and disclosure, and that privacy rights may limit government surveillance to safe it as
democratic processes. Under liberal democratic systems, privacy creates a line separate from
political life, and allows self-sufficiency, while guaranteeing democratic freedoms of association
and expression. A nine-judge bench of the Supreme Court headed by Chief Justice JS Khehar,
ruled on August 24, 2017 that the Right to Privacy is a fundamental right for Indian citizens
under the Constitution of India (mostly under Article 21 and additionally under Part III rights).
Thus no legislation passed by the government can unduly violate it. Specifically, the court
adopted the three-pronged test required for infringement of any Article 21 right – legality-i.e.
through an existing law; necessity, in terms of a legitimate state objective and section, that
guarantees a rational nexus between the object of the invasion and the means adopted to achieve
that object. This clarification was critical to prevent the weakening of the right in the future on
the impulses and views of the government in power. This ruling by the Supreme Court lined the
way for decriminalisation of homosexuality in India on 6 September 2018, thus legalising same-
2
The Privacy Torts" (October 20, 2018). Privacilla.org.
sex sexual intercourse between two consenting adults in private. India is the world’s biggest
democracy and with the ruling, it has joined United States, Canada, South Africa, the European
The new data sharing policy of Whatsapp with Facebook after Facebook developed Whatsapp in
2014 has been challenged in the Supreme Court. The Supreme Court must decide if the right to
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. During the
hearings, the Central government opposed the classification of privacy as a fundamental right.
The government's opposition to the right relied on two early decisions—MP Sharma vs Satish
Chandra in 19543, and Kharak Singh vs State of Uttar Pradesh in 19624—which had held that
In M.P Sharma, the bench held that the drafters of the Constitution did not plan to subject the
power of search and removal to a fundamental right of privacy. They argued that the Indian
Constitution does not include any language similar to the Fourth Amendment of the US
Constitution, and therefore, questioned the existence of a protected right to privacy. The
Supreme Court made clear that M.P Sharma did not decide other questions, such as “whether a
3
MP Sharma vs Satish Chandra (1954) AIR 300, 1954 SCR 1077.
4
Kharak Singh vs State of Uttar Pradesh (1962) AIR 1295, 1964 SCR (1) 332 .
constitutional right to privacy is protected by other provisions contained in the fundamental
rights including among them, the right to life and personal liberty under Article 21.”
In Kharak Singh, the decision invalidated a Police Regulation that provided for nightly
domiciliary visits, calling them an “unauthorized intrusion into a person’s home and a violation
of ordered liberty.” However, it also upheld other clauses of the Regulation on the ground that
the right of privacy was not guaranteed under the Constitution, and hence Article 21 of the
Indian Constitution (the right to life and personal liberty) had no application. Justice Subbarao's
dissenting opinion clarified that, although the right to privacy was not expressly recognized as a
fundamental right, it was an essential ingredient of personal liberty under Article 21.
After the interpretation and scope of privacy as a right expanded, and was accepted as being
constitutional in subsequent judgments. During the hearings of the Aadhaar challenge, the
Attorney-General (AG) representing the Union of India questioned the foundations of the right
to privacy. The AG argued that the Constitution’s framers never intended to incorporate a right
to privacy, and therefore, to read such a right as intrinsic to the right to life and personal liberty
under Article 21, or to the rights to various freedoms (such as the freedom of expression)
guaranteed under Article 19, would amount to rewriting the Constitution. The government also
pleaded that privacy was “too shapeless” for a precise definition and an selective concept which
The AG based his claims on the M.P. Sharma and Kharak Singh judgments, arguing that since a
larger bench had found privacy was not a fundamental right, subsequent smaller benches
upholding the right were not applicable. Sensing the need for resolution of the divergence of
opinions on privacy, the Court referred this technical clarification on constitutionality of the
right to a larger bench. The bench would determine whether the reasoning applied in M.P.
Sharma and Kharak Singh were correct and still relevant in present day. The bench was set up
not to not look into the constitutional validity of Aadhaar, but to consider a much larger
question: whether right to privacy is a fundamental right and can be traced in the rights to life
A nine-judge bench of the Supreme Court headed by Chief Justice JS Khehar, in KS.
Puttuswamy vs. Union of India5 ruled on August 24, 2017 that the Right to Privacy is a
fundamental right for Indian citizens under the Constitution of India (mostly under Article 21
and additionally under Part III rights). Thus no legislation passed by the government can unduly
violate it. Specifically, the court adopted the three-pronged test required for infringement of any
Article 21 right – legality-i.e. through an existing law; necessity, in terms of a legitimate state
objective and proportionality , that guarantees a rational nexus between the object of the invasion
and the means accepted to achieve that object. This clarification was crucial to prevent the
dilution of the right in the future on the whims and fancies of the government in power. This
ruling by the Supreme Court lined the way for decriminalisation of homosexuality in India on 6
September 2018, thus legalising same-sex sexual intercourse between two consenting adults in
private. India is the world’s biggest democracy and with this ruling, it has joined United States,
Canada, South Africa, the European Union and the UK in recognizing this fundamental right.
5
K. S. Puttaswamy v. Union of India, Writ Petition (Civil) No. 494 of 2012 (Sup. Ct. India Aug. 24, 2017).
RELATIONSHIO BETWEEN AADHAAR AND RIGHT
TO PRIVACY
The Aadhaar Act, 2016 and the Right to Privacy of every citizen of the country being violated
through it. The problems with the Aadhaar Act, 2016 in concern to privacy are mainly
comprised of two parts: firstly, Aadhaar Act making Aadhaar compulsory for every citizen and
also making its compulsory linkage to other services, including PAN and phone numbers. It
further makes an amendment to the Income Tax Act wherein for tax returns to be processed, one
needs to link their Aadhaar number to their PAN.[2] A failure to do this could also lead to
invalidity of the respective PAN. These legislations are a forced compulsion for the citizens to
link their Aadhaar to these documents which is a problem as Aadhaar inherently requires a lot of
personal and confidential information like biometrics, fingerprints, etc. which connects to the
second issue of data security. The Aadhaar Act, 2016 allows sharing of data under the Aadhaar
numbers for the purposes of “national security” which a vague and undefined term. Further,
Aadhaar is applicable to commercial purposes as well and has the participation of private parties
in its data access which leaves the citizens a huge risk of data leak given that there are no
existing privacy laws in India. The active government wants the Aadhaar policy to continue and
is gradually making Aadhaar mandatory for more documents, for eg., driving licence, which is in
The legislation, by making such compulsory legislation, violated the Judiciary’s decisions and
observations. This was criticized by the Supreme Court as well[6] because the compulsory
linking of Aadhaar to PAN and further for the purposes of Income Tax returns makes it
practically mandatory for any citizen to have an Aadhaar. This is in direct contradiction with the
Supreme Court’s intention to make Aadhaar voluntary. The dependence of Aadhaar on PAN
and
other services makes essential services and subsidies exclusive to only Aadhaar holders. A
similar problem was identified by the Rajya Sabha before passing the Aadhaar Bill in 2016
where it opposed the Lok Sabha on several grounds one of them being the issue of Aadhaar
This recommendation was given during the due process of the bill and was at a later stage
accepted by the Lok Sabha before enactment of the bill.[8] As a result of it, there exists section
7 in the Aadhaar Act, 2016 which states that any citizen who is not assigned an Aadhaar number
will be provided with alternate and viable means of identification for delivery of a service,
benefit or subsidy. The mandatory linking of PAN with Aadhaar having a further validity of tax
returns is a clear violation of this section as it is ultimately being made voluntarily mandatory.
The conflict was taken up in the parliament and the Minister of Information and Broadcasting
replied that the citizens not having Aadhaar shall be enrolled for one and an alternative method
will be provided till an Aadhaar number is assigned to her.[9] This statement directly negates the
entire purpose of the optional clause in the Act. However, the Supreme Court in its judgement on
the validity of Section 139AA, gave a partial satisfaction to both sides of the debate as it made
the Aadhaar also risks and compromises privacy of the citizens in terms of non-state actors as
well. For starters, the enrolment agencies of Aadhaar number are handled and controlled by
private operators. The private operators, therefore, get the data of the citizens for the purpose
of uploading it in the government database. There can be a possible misuse of such data and as
now, as the Aadhaar is linked to use several government subsidies and services, there increases
the chance of misusing the information in order to avail those services. Also, there is another
The issue of data security also applies to the private companies which require Aadhaar as a
mandatory part of the procedure for their services. This includes service provider companies,
banks, and other private players who have access to the citizen’s biometric information. Such
case has in fact occurred after the enactment of the Aadhaar Act. A recent incident happened
where it was reported that a website called “magicapk” leaked data of existing Reliance Jio
Customers (a service which has over 100 million users and requires Aadhaar number as a part of
their procedure)6. This was confirmed by the Reliance Jio Infocomm Ltd. as it filed a complaint
6
S. Aadeetya, This Website Has Leaked Details of Reliance Jio Users in India, The Quint (May 10 2017, 11:41 IST),
https://www.thequint.com/tech-and-auto/tech-news/reliance-jio-user-data-leak-india
7
Reuters, Reliance Jio does a U-turn, admits to data leak in police complaint, Business Standard (Jul 23 2017, 09:27
IST), http://www.business-standard.com/article/companies/reliance-jio-does-a-u-turn-admits-to-data-leak-in-
police-complaint-117071300193_1.html
NEW DEVLOPMENTS IN AADHAAR AND RIGHT TO
PRIVACY.
After the judgement of the K.S. Puttuswamy vs. Union of India in which it held it is not
mandatory to link aadhaar to private companies, it has been said that it for government scheme
only.
And now Right To Privacy is the intrinsic right of every citizen of India. It is not an absolute
right. And now Right to Privacy is the fundamental right under article 21 of the Indian
Constitution.
CONCLUSION
The Aadhaar Act has deep-rooted issues attached to it when it comes to breach of security and
ultimately privacy. There are other alternatives to implement Aadhaar which might make it a
justified, clean and a clear programme. Digital India is now being more and more promoted and
implemented in the country than ever before, which is also a given of the government. Lack of
stringent privacy laws like that in the US provides a leeway for misuse and inefficiency in
implementation of data security. The government’s stance and defence in the matter is always
identification to PAN, Income Tax matters, banks, etc. to avoid crimes such as tax frauds.
Further, the motive of the government to eradicate corruption becomes an irony when
corruption occurs in the Aadhaar procedure itself as due to the urgent necessity of having an
Aadhaar number (result of the measures of the government) and slow pace of enrolment, citizens
are forced to bribe operators in the enrolment centres. There needs to be an efficient and
unbiased plan of system of the unique identification programme for it to serve both the purposes
of identification as well as privacy because the latter is not liable to be voilted as fundamental
Devansh Sharma, “Aadhaar not mandatory, but it can make your financial life easier”
24 October 2019)
Mishi Choudhary, “Aadhaar and the right to privacy” (The Hindu, 24 August 2017)
www.thehindu.com /opinion/columns/aadhaar-and-the-right-to-
Debayan Gangopadhyay, “How Right to Privacy impacts Aadhaar” (17 November 2017)
aadhaar- card-sexuality-freedom-of-expression-1031131-2017-08-24>
“Mandatory Aadhaar threatens right to privacy: Amnesty and HRW report”, (13 January
Ananthakrishnan G, “Supreme Court gives Aadhaar some privacy” ( The Indian Express,
some-right-to-privacy-5376298/>
“What Supreme Court’s right to privacy ruling means for Aadhaar” ( Livemint,25
/www.livemint.com/Politics/RZ8PQL6hFfxy5V2kGE4hXM/What- Supreme-
Courts-right-to-privacy-ruling-means-for-Aadha.html>