DR.

RAM MANOHAR LOHIA NATIONAL LAW

UNIVERSITY, LUCKNOW

Submitted to Submitted by

Dr. Shashank Shekhar Avinash Tiwari

Asstt. Prof. (Law) Enrollment no. 190101043

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

encouragement throughout the course of project.

I would also like to thank the librarian of Dr. Madhu Limaye Library who extended their

assistance to me by helping me in providing some research material.

Lastly, I thank almighty, my family and friends for their constant encouragement without which

this assignment would not have been possible.

I know that despite my best effort some discrepancies might have crept in which I belive my

humble Professor would forgive.

Thanking You All

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

he relationship between the Right to privacy and Aadhaar policy.

 ABBREVIATIONS

 AIR- ALL INDIA REPORTER

 SCR- SUPREME COURT REPORT

 AG- ATTORNEY GENERAL

 PAN-PERMANENT ACCOUNT NUMBER

 TABLE OF CASES

Kharak Singh vs State of Uttar Pradesh.........................................................................................11

MP Sharma vs Satish Chandra.......................................................................................................11
KS. Puttuswamy vs. Union of India….........................................................................................................13
 CONTENTS

1. ADHAAR INTRODUCTION: ADHAAR FROM THE VERY

BEGNINING…......................................................................................7

BIRTH OF ADHAAR

COMMITTEE FOR ADHAAR

2. RIGHT TO PRIVACY: INTRODUCTION.........................................10

BIRTH OF RIGHT TO PRIVACY

CASES FROM THE VERY BEGNINNIG

FINAL JUGDEMENT

3. RELATIONSHIP BETWEEN RIGHT TO PRIVACY AND

ADHAAR…................................................................................................14

4. NEW DEVELOPMENTS IN ADHAAR POLICY AND RIGHT TO

PRIVACY…..................................................................................................17

5. CONCLUSION….........................................................................................18

6. REFERENCES.............................................................................................19
 Aadhar And Right to Privacy: New Developments

Chapter 1

Aadhar Introduction: Aadhar from the very beginning

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

COMMITTEE FOR AADHAAR

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

Authority of India (UIDAI), a statutory authority established in January 2009 by the

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

2.1 BIRTH OF RIGHT TO PRIVACY

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

Union and the UK in recognizing this fundamental right.

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

privacy can be essential against private entities.

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

privacy was not a fundamental right.

2.3 CASES FROM THE VERY BEGNINNG

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

should not be raised up to that of a fundamental right

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

and personal liberty.

2.3 FINAL JUDGEMENT

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

plan to also be mandatorily linked to Aadhaar.

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

being mandatory or not.[7]

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 linkage compulsory only for existing Aadhaar holders.

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

concern in respect to the involvement of private actors in the Aadhaar process.

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

alleging “unlawful access to its systems”7.

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

focussed towards the objective of evasion of corruption by implementing linkage of unique

identification to PAN, Income Tax matters, banks, etc. to avoid crimes such as tax frauds.

Howsoever, the objective is of crucial importance, the privacy of citizens is of supreme

importance as privacy is now a fundamental right in India.

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

rights directly link to the status of democracy in a country.

 REFERENCES

 Devansh Sharma, “Aadhaar not mandatory, but it can make your financial life easier”

(Economic Times, 11 April 2018) <www.economictimes.indiatimes.com> ( accessed on

24 October 2019)

 Margret Rouse, “Aadhaar” (August 2012)

<https://whatis.techtarget.com/definition/Aadhaar> (Accessed on 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-

privacy/article10165734.ece (accessed on 24 October 2019)

 Debayan Gangopadhyay, “How Right to Privacy impacts Aadhaar” (17 November 2017)

< https://blog.ipleaders.in/aadhaar-vs-right-to-privacy/> (Accessed on 24 october 2019)

 Anusha Soni, “How Right to Privacy impacts Aadhaar, freedom of expression,

sexuality” (24 August 2017) < /www.indiatoday.in/india/story/right-to-privacy-

aadhaar- card-sexuality-freedom-of-expression-1031131-2017-08-24>

 “Mandatory Aadhaar threatens right to privacy: Amnesty and HRW report”, (13 January

2018) < www.business-standard.com>

 Ananthakrishnan G, “Supreme Court gives Aadhaar some privacy” ( The Indian Express,

27 September 2018) < /indianexpress.com/article/india/supreme-court-aadhaar-verdict-

some-right-to-privacy-5376298/>
 “What Supreme Court’s right to privacy ruling means for Aadhaar” ( Livemint,25

August 2017) <

/www.livemint.com/Politics/RZ8PQL6hFfxy5V2kGE4hXM/What- Supreme-

Courts-right-to-privacy-ruling-means-for-Aadha.html>