LL.

Comparative Public Law and Systems of Governances

Case analysis 1
(Constitution)

Submitted by:

J. Navarathan

PROV/LLM-7-22/036 2022-23

Course Supervisor:

Dr. Bhoomanna Reddy

Alliance School of Law

Alliance University, Bangalore

Submitted on 3rd November 2022.

 CASE ANALYSIS.

Justice KS Puttaswamy (Retd.) & Anr. v. Union of India & Ors

Case name: Justice KS Puttaswamy (Retd.) & Anr. v. Union of India & Ors

Citation: (2019) 1 SCC 1

Bench: Chief Justice of India JS Khehar and Justices Jasti Chelameswar, SA Bobde, RK
Agarwal, Rohinton Nariman, AM Sapre, DY Chandrachud, SK Kaul and S Abdul Nazeer.1)

Background.

A five-judge bench of the Supreme Court of India upheld the constitutional validity of the
Targeted Delivery of Financial and Other Subsidies, Benefits, and Services Act, 2016
(“Aadhaar Act”) while striking down certain provisions of the Act. Aadhaar, a 12-digit
identification number issued by the Unique Identification Authority of India (“UIDAI”) to the
residents of India, enables a more efficient process of delivering several welfare schemes to
the residents of India. The scheme was challenged primarily on the grounds of invasion of the
fundamental rights under Article 14, 19 and 21 of the Indian Constitution. The Court held
that use of Aadhaar for the purpose of welfare schemes was constitutional as the Aadhaar Act
withstood the constitutional tests of legitimate state aim, necessity and proportionality. It also
held that since the aim of the Act was to create a unique identification so that deserving
beneficiaries were able to access subsidies or services (the expenditure of which is drawn
from the Consolidated Fund of India), the Aadhaar Act was validly passed as a Money Bill.
The Court also upheld the mandatory linking of Aadhaar with PAN cards, while declaring
mandatory linking of Aadhaar to bank accounts as unconstitutional and disproportionate.
Most importantly, the Court held that that the private companies could not require citizens to
provide their Aadhaar numbers for the provision of services.

2) Facts of the case.

In 2012, Justice KS Puttaswamy filed a writ petition challenging the constitutional validity of
the Aadhaar project, which aimed to build a database of personal identity and biometric
information of every Indian. Aadhaar is a 12-digit identification number issued by the Unique
Identification Authority of India (“UIDAI”) to the residents of India and is linked with
several welfare schemes, enabling a more efficient process of delivering services and
avoiding false beneficiaries (“Aadhaar scheme”). The scheme aimed to build a database of
personal identity and biometric information of every Indian and had enrolled more than 1.1
billion people in India by 2018.

Conceptualized in 2006 for a preliminary project to identify families below poverty line, the
Aadhaar scheme went through multiple iterations before being launched nationwide by way
of an administrative action in the year 2009. On March 25, 2016, the Aadhaar scheme
received legal sanction with the enactment of the Targeted Delivery of Financial and Other
Subsidies, Benefits, and Services Act, 2016 (“Aadhaar Act”). Under the Act, UIDAI was
established as a statutory body to develop the policy, procedure and systems for issuing
Aadhaar numbers to individuals and also to perform authentication in accordance with the
provisions of the Act. All residents of India were required to submit demographic (name, date
of birth and address) and biometric information (photograph, fingerprint and iris scan) at the
time of enrolment to an enrolment agency (“enrolment process”). Notably, the enrolment
agency is a private entity. The data is stored in Central Identities Data Repository (“CIDR”)
which are centralized databases containing all Aadhaar numbers, demographic details and
biographic information of such individuals.

In response to the government’s proposal to make the Aadhaar scheme mandatory for access
to government services and benefits, several other petitions were filed as well, challenging
distinct aspects of the scheme. The challenge was initially made before a three-judge bench
of the Supreme Court. In its order dated August 11, 2015, the bench noted that the norms for
and compilation of demographic biometric data by government was questioned primarily on
the ground that it violates the right to privacy. However, the Attorney General argued on
behalf of the Union of India that the Indian Constitution does not grant specific protection for
the right to privacy. He based this on observations made in the case of M.P. Sharma v. Satish
Chandra (an eight-judge bench) and Kharak Singh v. Uttar Pradesh (a five-judge bench).
However, the petitioners contested that both of these judgments were founded on principles
laid down in 1950 in A.K. Gopalan v State of Madras (“Gopalan”), which was overruled by
an eleven judge bench in Rustom Cavasji Cooper v Union of India (“Cooper”) in 1970.
In Cooper, the bench found that fundamental rights were not to be construed as distinct,
unrelated rights, thereby upholding the dissenting view in Kharak Singh. This also formed the
basis of later decisions by smaller benches of the Supreme Court which expressly recognized
the right to privacy.

Faced with a predicament and given the importance of the question, a reference to a larger
bench was deemed fit to decide on whether there existed a “constitutionally protected
fundamental right” to privacy. It was in this context that a five-judge Bench was set up by an
order dated August 11, 2015. On July 18, 2017, a Constitution Bench considered it
appropriate that the issue be resolved by a larger bench of nine judges to decide whether the
position recorded by the Supreme Court in M.P Sharma and Kharak Singh (i.e. that there is
no fundamental right to privacy under Indian Constitution) was the correct constitutional
position. The nine judge bench in Puttaswamy v. Union of India (“Puttaswamy I”) gave a
unanimous answer and determined that right to privacy is a part of fundamental rights which
can be traced to Articles 14, 19 and 21 of the Constitution of India. Following the judgment
in Puttaswamy I, the Supreme Court posted the matter for final hearing before the five judge
bench in this case.

3) Issues involved.

1. Whether or not there is any fundamental right of privacy under the Constitution of
India?
2. Whether or not the decision made by the Court that there are no such fundamental rights
in M.P. Sharma & Ors. vs. Satish Chandra, DM, Delhi & Ors. and also, in Kharak Singh
vs. The State of U.P, is that the correct expression of the constitutional position?

4) Contentions of the parties.

Petitioner's Argument:
It was argued from the side of the petitioner before the court is that the right to privacy is an
intrinsic part of the right to life and personal liberty under Article 21 and as a part of the
freedoms guaranteed by Part III of the Constitution and same is to be protected by the
constitution of India.
• It was also put forward to evaluate the correctness of the decision noted in Karak Singh vs.
The state of Uttar Pradesh and M. P. Sharma vs. Satish Chandra on the ground that it violates
the Right to Privacy under Article 21 of the constitution.
Respondent's Arguments

It was argued from the side of the defendant that the constitution of India does not
specifically protect the Right to privacy and on this 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 in the case of both M. P. Sharma vs Satish
Chandra and Karak Singh vs. State of UP.

5) Judgement.

A nine-judge bench of the Supreme Court of India passed a landmark judgment on 24th
August 2017, upholding the fundamental right to privacy under Article 21 of the constitution
of India.

It is stated in the judgment that the privacy is to be an integral component of Part III of the
Indian Constitution, which lays down the fundamental rights of the citizens. The Supreme
Court also stated that the state must carefully balance the individual privacy and the
legitimate aim, at any cost as fundamental rights cannot be given or taken away by law, and
all laws and acts must abide by the constitution. The Court also declared that the right to
privacy is not an absolute right and any invasion of privacy by state or non-state actor must
satisfy the triple test
1. Legitimate Aim.
2. Proportionality
3. Legality

Decision that has been passed by all nine judges holds:

(i) The decision in M P Sharma vs. Satish Chandra which holds that the right to privacy is not
protected by the Constitution of India stands over-ruled;
(ii) The decision in Kharak Singh vs. State of UP to the degree that it holds that the right to
privacy is not protected by the Constitution also stands over-ruled;
(iii) The right to privacy is protected as an intrinsic part of the right to life and personal
liberty under Article 21 of the constitution of India and as a part of the freedoms guaranteed
by Part III of the Constitution.

6) Ratio of the case.

The majority opinion began by analysing the jurisprudence on various facets of privacy,
affirming three aspects of the fundamental right to privacy: (i) intrusion with an individual’s
physical body; (ii) informational privacy; and (iii) privacy of choice. Subsequently, the Court
sought to categorize various approaches in formulating privacy, classifying privacy on the basis
of harm (i.e. privacy being a family resemblance concept), interests (i.e. privacy of repose,
privacy of sanctuary and privacy of intimate decision) and as aggregation of rights (i.e. not
limited to one fundamental right but associated with several others.

Declaring that any action of the State has to be tested on the touchstone of Article 14, 19 and
21 of the Indian Constitution, the Court noted that a restriction on any right must also satisfy
the test of judicial review under (a) the grounds specified under Article 19(2) of the
Constitution (primarily in the interest of sovereignty and security of the State, public order,
decency, morality etc.) and (b) the restriction should be reasonable. On the latter, the Court
sought to apply various standards, including application of the test of legitimate aim and the
doctrine of proportionality. Notably, the Court also analysed if it should apply “strict
scrutiny” standard or the “just, fair and reasonableness” standard to determine the legality of
the Act

7) Analysis

Under the Constitution of India, Article 14 guarantees right to equality, Article 19 guarantees
the right to freedom of speech, expression, and assembly, and Article 21 guarantees all
persons right to life and personal liberty. The judgment in Puttaswamy I guaranteed the right
to privacy as an intrinsic part of the right to life and personal liberty under Article 21 of the
Indian Constitution. Under the Aadhaar Act, 2016, chapter II deals with enrolment, requiring
every resident to obtain the Aadhaar number by submitting his demographic information and
biometric information (section 3). Chapter III deals with “authentication,” wherein section 7
mandates that proof of an Aadhaar number would be necessary for receipt of certain
subsidies, benefits and services etc. Other crucial sections of the Act include chapter IV
dealing with establishment of UIDAI, chapter VI delineating security of information and
authentication records of individuals and restriction on sharing of biometric information.

Notably, the information collected and stored is treated as an “electronic record” and
“sensitive personal data or information” by virtue of Section 30 of the Act. Section 33 of the
Act also puts an embargo upon the UIDAI to collect, keep or maintain any information about
the “purpose of authentication” except (a) in circumstances where an order of a court not
inferior to that of a District Judge to disclose such information has been made (subsection 1)
and (b) where it becomes necessary to disclose the information in the interest of national
security (subsection 2). Section 57 of the Act provides that the Aadhaar Act would not
prevent the use of an Aadhaar number for establishing the identity of an individual for any
purpose.

Justice Chandrachud disagreed with the foundational assumption of the majority on the
uniqueness of the Aadhaar scheme, declaring that the uniqueness of the biometric data was
relative and remained an assumption “without watertight proof” [p. 779]. He noted that there
were significant privacy concerns with the Act, notably:

(a) absence of consent during enrolment and authentication, since prior to the enactment of
the Aadhaar Act, no mandatory obligation was imposed upon the Registrars or the enrolling
agencies to (i) obtain informed consent from residents before recording their biometric data,
(ii) inform them how the biometric data would be stored and used and (iii) about the
existence of adequate safeguards to secure the data,

(b) expansive extent of information disclosed during authentication & sharing of core
biometric information,

(c) regarding expansive scope of biometric information and

(d) questionable efficacy of the biometric model (including identity theft).

Justice Chandrachud accorded high regard to self-determination as an essential facet of

Article 21 as well as emphasized the incoherence between the biometrics model deployed by
Aadhaar and the right to anonymity of the citizens. On the latter, given that anonymity was
central to a person’s sense of freedom and autonomy, widespread use of biometrics
undermined the right to remain anonymous. Taken together, Justice Chandrachud held that
Aadhaar framework violated essential norms pertaining to informational privacy, self-
determination and data protection.

8) Conclusion.
The judgement finally puts to rest that privacy is a fundamental right protected under article
21 of the Constitution. he Court also emphasised the fact that sexual orientation was an
essential facet of privacy. It further discussed the negative and positive content of the right to
privacy, where the State was not only restrained from committing an intrusion upon the right
but was also obligated to take necessary measures to protect the privacy of an individual.

The judgment held informational privacy to be a part of the right to privacy. The Court while
noting the need for a data protection law left it in the domain of Parliament to legislate on the
subject.